Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT, dated as of August 6, 2004 (this "First
Amendment"), to the Credit Agreement, dated as of May 28, 2004 (as amended,
supplemented or modified from time to time, the "Credit Agreement"), among ANR
HOLDINGS, LLC, a Delaware limited liability company ("Holdings"), ALPHA NATURAL
RESOURCES, LLC, a Delaware limited liability company (the "Borrower"), the
LENDERS from time to time party thereto, CITICORP NORTH AMERICA, INC., as
administrative agent (in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent"), CREDIT SUISSE FIRST
BOSTON, acting through its Cayman Islands Branch, as syndication agent (in such
capacity, the "Syndication Agent"), UBS SECURITIES LLC, as documentation agent
(in such capacity, the "Documentation Agent"), CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch, UBS SECURITIES LLC and CITIGROUP
GLOBAL MARKETS INC., as joint lead arrangers (in such capacities, collectively,
the "Arrangers"), and CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch, and UBS SECURITIES LLC, as joint bookrunners (in such
capacities, collectively, the "Bookrunners").
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower and the Administrative Agent, among
others, are parties to the Credit Agreement;
WHEREAS, Holdings and the Borrower have requested that the Lenders
agree to amend certain provisions of the Credit Agreement as set forth in this
First Amendment; and
WHEREAS, the Lenders whose signatures appear below, constituting at
least the Required Lenders, are willing to amend the Credit Agreement on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises contained herein, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Amendment to Section 1.01 (Defined Terms). Section 1.01 of the
Credit Agreement is hereby amended by adding the following defined terms in the
proper alphabetical order:
"Permitted AMCI Transactions" shall mean any transactions on terms
and conditions not less favorable to the Borrower and the relevant
Subsidiary or Subsidiaries than could be obtained on an arm's-length
basis from unrelated third parties in which the Borrower and/or any
Subsidiary or Subsidiaries shall enter into agreements (or otherwise
transact) with AMCI or an Affiliate of AMCI, in each case, in
connection with Permitted Excelven Investments."
"Permitted Excelven Investments" shall mean (a) Investments required
in connection with the Borrower's initial acquisition of Equity
Interests in Excelven Pty Ltd pursuant to the definitive
subscription documents relating to such Investment in an aggregate
amount not to exceed $5,000,000 and (b) additional Investments made
by the Borrower in Excelven Pty Ltd not to exceed $5,000,000,
provided that no more than $2,500,000 of the Investments described
in this clause (b) shall be made during the fiscal year ending
December 31, 2004.
3. Amendment to Section 6.02 (Liens). Section 6.02 of the Credit
Agreement is hereby amended by adding the following words at the end of clause
(m) thereof:
"and rights of first refusal, purchase options and similar
contractual rights contained in the definitive documentation relating to the
Permitted Excelven Investments"
4. Amendment to Section 6.04 (Investments, Loans and Advances).
Section 6.04 of the Credit Agreement is hereby amended by adding "(i)" to the
beginning of clause (m) thereof, adding a reference to "(i)" after the reference
to clause "(m)" in the third line thereof and adding the following words at the
end of such clause:
"and (ii) Permitted Excelven Investments"
5. Amendment to Section 6.06 (Restricted Payments; Restrictive
Agreements). Section 6.06(b) of the Credit Agreement is hereby amended by adding
the following clause (G) at the end of such Section:
"and (G) clause (i) of the foregoing shall not apply to customary
provisions in the shareholders agreement and related documentation relating to
the Permitted Excelven Investments restricting the assignment or transfer of the
Equity Interests in Excelven Pty Ltd"
6. Amendment to Section 6.07 (Affiliate Transactions). Section 6.07
of the Credit Agreement is hereby amended by adding the following clause at the
end of such Section:
"and (e) the Borrower and the Subsidiaries may engage in Permitted
AMCI Transactions."
7. Representations and Warranties. In order to induce the other
parties hereto to enter into this First Amendment, Holdings and the Borrower
represent and warrant to each other party hereto that, after giving effect to
this First Amendment: (a) the representations and warranties set forth in each
Loan Documents shall be true and correct in all material respects on and as of
the date hereof with the same effect as though made on and as of such date,
except to the extent such representations and warranties relate to an earlier
date, in which case such representations and warranties shall be true and
correct in all material respects on and as of such earlier date, provided that
the references to the Credit Agreement in such representations and warranties
shall be deemed to refer to the Credit Agreement as amended pursuant to this
First Amendment and (b) no Event of Default or Default shall have occurred and
be continuing.
8. Conditions to Effectiveness of this First Amendment. This First
Amendment shall become effective on the date (the "First Amendment Effective
Date") on which:
(a) The Administrative Agent shall have received duly executed and
delivered counterparts of this First Amendment that, when taken together, bear
the signatures of Holdings, the Borrower and the Required Lenders.
(b) The Borrower shall have paid to the Administrative Agent all
outstanding fees, costs and expenses owing to the Administrative Agent as of
such date.
(c) The Administrative Agent shall have received such additional
documentation as the Administrative Agent may reasonably require.
9. Continuing Effect; No Other Amendments. Except as expressly set
forth in this First Amendment, all of the terms and provisions of the Credit
Agreement are and shall remain in full force and effect and each of Holdings and
the Borrower shall continue to be bound by all of such terms and provisions. The
amendments provided for herein are limited to the specific subsections of the
Credit Agreement specified herein and shall not constitute an amendment of, or
an indication of the Administrative Agent's or the Lenders' willingness to amend
or waive, any other provisions of the Credit Agreement or the same subsections
for any other date or purpose. This First Amendment shall constitute a Loan
Document.
10. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution and
delivery of this First Amendment, and any other documents prepared in connection
herewith, and the transactions contemplated hereby, including, without
limitation, reasonable fees and disbursements and other charges of counsel to
the Administrative Agent and the charges of IntraLinks.
11. Counterparts. This First Amendment may be executed by one or
more of the parties to this First Amendment on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page
of this First Amendment by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof. A set of the copies of this First
Amendment signed by all the parties shall be lodged with the Borrower and the
Administrative Agent. The execution and delivery of this First Amendment by the
Borrower, the Lenders party hereto and the Administrative Agent shall be binding
upon the Loan Parties, the Lenders, the Agents and all future holders of the
Loans.
12. Effect of Amendment. On the First Amendment Effective Date, the
Credit Agreement shall be amended as provided herein. The parties hereto
acknowledge and agree that (a) this First Amendment and any other Loan Documents
executed and delivered in connection herewith do not constitute a novation, or
termination of the "Obligations" (as defined in the Credit Agreement) under the
Credit Agreement as in effect prior to the First Amendment Effective Date; (b)
such "Obligations" are in all respects continuing (as amended hereby) with only
the terms thereof being modified to the extent provided in this First Amendment;
and (c) the
Liens and security interests as granted under the Security Documents securing
payment of such "Obligations" are in all respects continuing and in full force
and effect and secure the payment of the "Obligations".
13. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
ANR HOLDINGS, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
ALPHA NATURAL RESOURCES, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
CITICORP NORTH AMERICA, INC.,
as Administrative Agent,
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE TO FIRST AMENDMENT DATED AS OF AUGUST 6, 2004, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS
AMENDED
To Approve the First Amendment:
Name of Institution:
UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx X. Saint
Name: /s/ Xxxxxxx X. Saint
Title: Director
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Associate Director
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SIGNATURE PAGE TO FIRST AMENDMENT DATED AS OF AUGUST 6, 2004, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS
AMENDED
To Approve the First Amendment:
Name of Institution:
SOCIETE GENERALE
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Director
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SIGNATURE PAGE TO FIRST AMENDMENT DATED AS OF AUGUST 6, 2004, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS
AMENDED
To Approve the First Amendment:
Name of Institution:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ Xxxx XxXxxxxx
Name: Xxxx XxXxxxxx
Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT DATED AS OF AUGUST 6, 2004, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS
AMENDED
To Approve the First Amendment:
Name of Institution:
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxx Adipoetro
Name: Xxxxxx Adipoetro
Title: Director
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Associate
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SIGNATURE PAGE TO FIRST AMENDMENT DATED AS OF AUGUST 6, 2004, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS
AMENDED
To Approve the First Amendment:
Name of Institution:
BRANCH BANKING AND TRUST
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
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