AMENDMENT NO. 4 TO CREDIT AGREEMENT
Exhibit 10.14
AMENDMENT
NO. 4 TO CREDIT AGREEMENT
AMENDMENT
NO. 4 TO CREDIT AGREEMENT (this "Amendment") dated as of December 27, 2006,
to
the CREDIT AGREEMENT dated as of May 3l, 2005, as amended by that certain
Amendment No. 1 and Waiver dated February 22, 2006, as further amended by
that certain Amendment No. 2 and Waiver dated May 30, 2006, and as further
amended by that certain Amendment No. 3 and Waiver dated as of November 7,
2006
(as may be further amended, restated, modified or replaced, the "Credit
Agreement"), among XXXXX RIVER COAL COMPANY (the "Borrower"), the LENDERS from
time to time party thereto, PNC BANK, NATIONAL ASSOCIATION, as Administrative
Agent.
A. Pursuant
to the Credit Agreement, the Lenders have extended credit to the Borrower,
and
have agreed to extend credit to the Borrower, in each case pursuant to the
terms
and subject to the conditions set forth therein.
B. The
Borrower has requested that the Lenders agree to amend certain provisions of
the
Credit Agreement, in each case pursuant to the terms and subject to the
applicable conditions set forth herein.
C. The
undersigned Lenders are willing, pursuant to the terms and subject to the
applicable conditions set forth herein, to approve such amendments.
D. Capitalized
terms used but not defined herein shall have the respective meanings assigned
to
them in the Credit Agreement (as amended hereby).
Accordingly,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the applicable conditions set forth herein, the
parties hereto intending to be legally bound hereby agree as
follows:
SECTION
1. Amendment
of the Definition of Applicable Rate.
The
last sentence of the defined term "Applicable Rate" contained in Section 1.01
[Defined
Terms]
of the
Credit Agreement is hereby amended in its entirety as follows:
"Notwithstanding
anything herein to the contrary, from the Fourth Amendment Effective Date and
thereafter, the Loan ABR Spread shall be 3.50% and the Loan Eurodollar Spread
shall be 4.75%, if, however, the Borrower consummates the Xxxx County
Disposition by February 15, 2007, the Loan ABR Spread shall be decreased to
3.00% and the Loan Eurodollar Spread shall be decreased to 4.25%."
SECTION
2. Amendment
of Section 1.01[Defined Terms].
Section
1.01 [Defined
Terms]
of the
Credit Agreement is hereby amended by inserting the following new definitions
into Section 1.01 in alphabetical order thereto:
"
'Xxxx
County Disposition'
means
the sale by the Borrower of its equity interest in Xxxx County Coal Company
pursuant to purchase and sale documents reasonably satisfactory to the
Administrative Agent. "
"
'Fourth
Amendment'
means
the Amendment No. 4 to Credit Agreement among the Borrower, the Lenders party
thereto and the Administrative Agent dated as of the Fourth Amendment Effective
Date. "
"
'Fourth
Amendment Effective Date'
means
the date on which the Fourth Amendment becomes effective in accordance with
its
terms. "
SECTION
3. Amendment
of Section 2.12(c).
Section
2.12(c) of the Credit Agreement is hereby amended as follows:
(a)
Clause (i)(a) of Section 2.12(c) is hereby amended in its entirety as
follows:
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"
(a) 4.75% per annum for the period commencing on the Fourth Amendment
Effective Date and thereafter, if, however, the Borrower consummates
the
Xxxx County Disposition by February 15, 2007, such rate shall decrease
to
4.25% per annum for the period commencing upon the consummation of
the
Xxxx County Disposition and thereafter plus".
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(b)
The
last sentence of Section 2.12(c) is hereby deleted in its entirety, which
sentence previously read as follows: "Notwithstanding anything contrary
contained in the Credit Agreement, the interest rate referenced in Section
2.12(c)(i)(a) shall increase to 3.50% for the period commencing on October
1,
2006 and thereafter."
SECTION
4. Amendment
of Section 5.01 [Financial Statements and Other Information].
Section
5.01 [Financial
Statements and Other Information]
of the
Credit Agreement is hereby amended by adding the following Section 5.01(i)
thereto:
"(i)
within two (2) Business Days after the end of each week, its weekly management
report for such week."
SECTION
5. Section
6.05 [Asset Sales].
Section
6.05 [Asset
Sales]
of the
Credit Agreement is hereby amended by inserting at the end thereof the following
new sentence: "Notwithstanding the provisions of this Section 6.05, so long
as no Default or Event of Default exists at such time, the Borrower shall be
permitted to consummate the Xxxx County Disposition."
SECTION
6. Section
6.12 [Fixed Charge Coverage Ratio] Deleted.
Article
VI [Negative
Covenants]
of the
Credit Agreement is hereby amended by deleting Section 6.12 [Fixed
Charge Coverage Ratio].
SECTION
7. Section
6.13 [Leverage Ratio].
Section
6.13 [Leverage
Ratio]
of the
Credit Agreement is hereby amended in its entirety as follows:
"
SECTION
6.13. Leverage
Ratio.
The
Borrower will not permit the Leverage Ratio as of the end of the applicable
period set forth in the chart below to exceed the ratio as set forth below
opposite such period:
2
|
Period
ended
|
Leverage
Ratio
|
|
December
31, 2006
|
4.00
to 1.00
|
|
March
31, 2007
|
4.25
to 1.00
|
|
June
30, 2007
|
3.80
to 1.00
|
|
September
30, 2007
|
3.40
to 1.00
|
|
December
31, 2007 through June 30, 2008
|
3.00
to 1.00
|
|
September
30, 2008 through December 31, 2008
|
2.75
to 1.00
|
|
March
31, 2009 and thereafter
|
2.50
to 1.00 "
|
SECTION
8. Section
6.15 [Maximum Capital Expenditures].
Section
6.15(a) of the Credit Agreement is hereby amended in its entirety as follows:
"
(a) The
aggregate amount of Capital Expenditures made by the Borrower and the
Subsidiaries in any period shall not exceed the amount set forth below opposite
such period:
|
Period
|
Amount
|
|
Fiscal
year ended December 31, 2006
|
$65,000,000
|
|
Fiscal
quarter year ended March 31, 2007
|
$10,500,000
|
|
Fiscal
quarter year ended June 30, 2007
|
$15,500,000
|
|
Fiscal
quarter year ended September 30, 2007
|
$14,000,000
|
|
Fiscal
quarter year ended December 31, 2007
|
$12,100,000
|
|
Fiscal
year ended December 31, 2008
|
$55,000,000
|
|
Fiscal
year ended December 31, 2009 and each fiscal year
thereafter
|
$65,000,000
"
|
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SECTION
9. Section
6.18 [Minimum Consolidated EBITDA].
Section
6.18 [Minimum
Consolidated EBITDA]
of the
Credit Agreement is hereby amended in its entirety as follows:
"SECTION
6.18. Minimum
Consolidated EBITDA.
The
Borrower shall generate Consolidated EBITDA in an amount greater than or equal
to the amounts set forth on the chart below as of the end of the applicable
period of four consecutive fiscal quarters as set forth below:
|
Period
ended
|
Consolidated
EBITDA
|
|
March
31, 2007
|
$40,000,000
|
|
June
30, 2007
|
$45,000,000
|
|
September
30, 2007
|
$50,000,000
|
|
December
31, 2007
|
$60,000,000
|
|
March
31, 2008
|
$65,000,000
|
|
June
30, 2008 and thereafter
|
$70,000,000
"
|
SECTION
10. Section
6.19 [Minimum Liquidity].
Section
6.19 [Minimum
Liquidity]
of the
Credit Agreement is hereby amended in its entirety as follows:
"SECTION
6.19. Minimum
Liquidity.
The
Borrower's Liquidity shall not be less than $20,000,000 on February 28, 2007,
as
demonstrated to the reasonable satisfaction of the Administrative Agent together
with the delivery to the Administrative Agent and the Lenders of books, records,
documents and other evidence therefor."
SECTION
11. Agreement
with respect to Credit-Linked Deposits.
Subject
to the conditions set forth herein, the undersigned Lenders hereby agree that
notwithstanding the Borrower's failure to give prior notice in accordance with
provisions of Section 2.08(c) of the Credit Agreement with respect to the
Borrower's election to reduce the Total Credit-Linked Deposits, the Borrower
shall be permitted, and hereby irrevocably directs the Administrative Agent
to,
reduce the aggregate amount Total Credit-Linked Deposits by $10,000,000 on
December 29, 2006 and to distribute such Total Credit-Linked Deposits in
accordance with Section 2.08(c) of the Credit Agreement. After the Fourth
Amendment Effective Date, notwithstanding anything contained in the Credit
Agreement to the contrary, the Borrower shall not be permitted to request
Letters of Credit that would cause the Synthetic LC Exposure to exceed
$65,000,000.
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SECTION
12. Representations
and Warranties.
The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:
(a) This
Amendment has been duly authorized, executed and delivered by the Borrower
and
constitutes a legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered
in
a proceeding in equity or at law.
(b) None
of
the execution, delivery or performance by the Borrower of this Amendment or
the
compliance by the Borrower with the terms and provisions hereof (i) will
contravene any material provision of any applicable law, statute, rule or
regulation, or any order, writ, injunction or decree of any Governmental
Authority, (ii) will conflict or be inconsistent with, or result in any breach
of, any of the terms, covenants, conditions or provisions of, or constitute
a
default under, or result in the creation or imposition of (or the obligation
to
create or impose) any Lien upon any of the property or assets of Borrower or
any
of its respective Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement, credit agreement or any other material agreement
or instrument to which Borrower or any of its respective Subsidiaries is a
party
or by which Borrower or any of its respective Subsidiaries or any of the
property or assets of Borrower or any of its respective Subsidiaries are bound
or to which Borrower or any of its respective Subsidiaries may be subject or
(iii) will violate any provision of the certificate or articles of
incorporation, by-laws, certificate of partnership, partnership agreement,
certificate of limited liability company, limited liability company agreement
or
equivalent organizational document, as the case may be, of Borrower or any
of
its respective Subsidiaries.
(c) The
representations and warranties of Borrower set forth in the Loan Documents
are
true and correct on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties are true and correct as of such earlier
date.
(d) After
giving effect to this Amendment, no Default or Event of Default shall have
occurred and be continuing.
SECTION
13. Amendment
Fee.
In
consideration of the agreements of the Lenders contained in this Amendment,
the
Borrower agrees to pay to the Administrative Agent, for the account of each
consenting Lender that delivers an executed counterpart of this Amendment to
the
Administrative Agent prior to 5:00 p.m., New York City time, on December 29,
2006, an amendment fee in an amount equal to 0.25% of such Lender's Revolving
Exposures, Synthetic LC Exposure, unused Revolving Commitments and Excess
Credit-Linked Deposits as of such date and after giving effect to this
Amendment.
SECTION
14. Conditions
to Effectiveness.
This
Amendment shall become effective as of the date (the "Effective Date") on which
each of the following conditions has been satisfied:
(a) the
Administrative Agent shall have received counterparts of this Amendment that,
when taken together, bear the signatures of the Borrower and the Required
Lenders;
5
(b) the
Administrative Agent shall have received a certificate of a Financial Officer
of
the Borrower, dated the Effective Date, to the effect that the representations
and warranties set forth in Section 12 hereof are true and correct;
(c) the
Borrower shall have deposited with the Administrative Agent, in immediately
available funds, the Amendment Fee referred to in Section 13 hereof for the
account of each of the Lenders entitled thereto so as to enable the
Administrative Agent to make payments of the Amendment Fee to each of the
Lenders as each of them delivers an executed counterpart of this Amendment;
(d) to
the
extent invoiced, the Administrative Agent shall have received payment or
reimbursement of its reasonable out-of-pocket expenses in connection with this
Amendment and any other out-of-pocket expenses of the Administrative Agent
required to be paid or reimbursed pursuant to the Credit Agreement, including
the reasonable fees, charges and disbursements of counsel for the Administrative
Agent; and
(e) the
Borrower shall have delivered to the Administrative Agent and the Lenders its
weekly management reports from December 1, 2006, including the weeks ended
December 8, 2006, December 15, 2006 and December 22, 2006.
SECTION
15. Effect
of Amendment.
Except
as specifically set forth herein, this Amendment shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the rights
and remedies of the Lenders, any Agent, the Collateral Agent, the Borrower
under
the Credit Agreement or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement or any other Loan Document,
all
of which are ratified and affirmed in all respects and shall continue in full
force and effect. Nothing herein shall be deemed to entitle the Borrower to
a
consent to, or a waiver, amendment, modification or other change of, any of
the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.
After the date hereof, any reference to the Credit Agreement shall mean the
Credit Agreement as amended hereby. This Amendment shall be a Loan Document
for
all purposes.
SECTION
16. Applicable
Law.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS
OF THE STATE OF NEW YORK.
SECTION
17. Counterparts.
This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one agreement. Delivery of an executed signature page to this Amendment by
facsimile or other electronic transmission shall be effective as delivery of
a
manually signed counterpart of this Amendment.
SECTION
18. Expenses.
The
Borrower agrees to reimburse the Administrative Agent for its out-of-pocket
expenses in connection with this Amendment, including the reasonable fees,
charges and disbursements of Xxxxxxxx Xxxxxxxxx & Xxxxxx PC, counsel for the
Administrative Agent.
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SECTION
19. Headings.
The
Section headings used herein are for convenience of reference only, are not
part
of this Amendment and are not to affect the construction of, or to be taken
into
consideration in interpreting, this Amendment.
[REMAINDER
OF THIS PAGE LEFT BLANK INTENTIONALLY]
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[SIGNATURE
PAGE TO AMENDMENT NO. 4 TO CREDIT AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.
|
XXXXX
RIVER COAL COMPANY, as Borrower
By:
/s/ Xxxxxx X. Xxxxxxx, XX
Name:
Xxxxxx X. Xxxxxxx, XX
Title:
Vice President
|
8
[SIGNATURE
PAGE TO AMENDMENT NO. 4 TO CREDIT AGREEMENT]
|
PNC
BANK, NATIONAL
ASSOCIATION,
as Lender and as
Administrative
Agent
By:
_______________________________
Name:
_____________________________
Title:
______________________________
|
9
[SIGNATURE
PAGE TO AMENDMENT NO. 4 TO CREDIT AGREEMENT]
To
Approve the Amendment:
|
Name
of Institution:
______________________________
By:
_______________________________
Name:
_____________________________
Title:
______________________________ |
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