THIRDAMENDMENT TO REVOLVING CREDIT AGREEMENT

 

THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Agreement”), is made and entered into as of November 5, 2008 (the “Effective Date”), by and among James River Coal Company, a corporation organized under the laws of Virginia (“JRCC”), and certain of JRCC’s Subsidiaries identified on the signature pages hereof, as borrowers (such Subsidiaries, together with JRCC, are referred to hereinafter each individually as a “Borrower”, and collectively, jointly and severally, as the “Borrowers”), and the other credit parties hereto, identified on the signature pages hereof as Guarantors (together, the Borrowers and Guarantors, the “Credit Parties”), the lenders party hereto from time to time (the “Lenders”), General Electric Capital Corporation (“GECC”), a corporation formed under the laws of Delaware, as co-lead arranger and administrative agent for the Lenders (in such capacity, together with its successors and assigns, if any, the “Administrative Agent”) and as collateral agent for the Lenders (in such capacity, the “Collateral Agent”), with Morgan Stanley Senior Funding, Inc., having acted as co-lead arranger for the Lenders with GECC.

 

WHEREAS, the Borrowers, the other Credit Parties signatory thereto, the Lenders and L/C Issuers party thereto, and the Administrative Agent are parties to that certain Revolving Credit Agreement, dated as of February 26, 2007 (as amended, restated, supplemented and revised from time to time, the “Credit Agreement”), pursuant to which the Lenders have committed to make certain loans and other extensions of credit to the Borrowers upon the terms and conditions set forth therein;

 

WHEREAS, the Borrowers have informed the Administrative Agent and the Lenders that certain Events of Default have occurred and are continuing as a result of the Borrowers’ failure to comply with (a) the Minimum Consolidated EBITDA covenant set forth in Section 10.01 of the Credit Agreement solely for the period ended September 30, 2008 and (b) the Leverage Ratio covenant set forth in Section 10.02 of the Credit Agreement solely for the period ended September 30, 2008 (collectively, the “Specified Defaults”);

 

WHEREAS, the Borrowers have requested that the Administrative Agent and the undersigned Lenders (a) waive the Specified Defaults and (b) agree to amend certain of the terms and provisions of the Credit Agreement; and

 

WHEREAS, the Lenders are willing, upon and subject to certain conditions, to waive the Specified Defaults and to amend the Credit Agreement in certain respects, all in accordance with and subject to the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises, the covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:

 

1.           Defined Terms.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.

 

2.           Waiver. The Administrative Agent and the undersigned Lenders, subject to the terms and conditions of this Agreement, including without limitation the conditions to effectiveness specified in Section 7 below, hereby waive the Specified Defaults.

 

3.           Amendments to the Credit Agreement.  

 

(a)           Section 1.01 of the Credit Agreement, Definitions, is hereby amended by restating the definitions of “Base Rate” and “Senior Funded Indebtedness” in their entirety as follows:

“Base Rate” means, for any day, the highest of (a) the Federal Funds Rate plus one half of one percent, (b) the Prime Rate and (c) the sum of (x) the LIBOR Rate with respect to a LIBOR Rate Loan with a LIBOR Period of three months, plus (y) the excess of the Applicable Margin for Libor Rate Loans over the Applicable Margin for Base Rate Loans, in each instance, as of such day.  Any change in the Base Rate due to a change in any of the foregoing shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Rate, or LIBOR Rate with respect to a LIBOR Rate Loan with a LIBOR Period of three months.  If no offered rate for LIBOR exists as of such date, such rate will be the rate of interest per annum, as determined by the Administrative Agent (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits of Dollars in immediately available funds are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to the applicable day by major financial institutions reasonably satisfactory to the Administrative Agent in the London interbank market for such LIBOR Period for the applicable principal amount on such date of determination.

“Senior Funded Indebtedness” means the Loans (including any outstanding Letter of Credit hereunder) and the amount of the Term Loan Obligations (as that term is defined in the Term Credit Agreement in effect as of the date hereof); provided, however, that Senior Funded Indebtedness shall exclude (a) any outstanding Letter of Credit issued hereunder to the extent that such outstanding Letter of Credit is Cash Collateralized in a manner contemplated under and in accordance with the terms and conditions set forth Agreement), and (b) any outstanding Term Letter of Credit (as that term is defined in the Term Credit Agreement in effect as of the date hereof) to the extent that such outstanding Term Letter of Credit is cash collateralized in a manner contemplated under and in accordance with the terms and conditions set forth in the Term Credit Agreement.

 

(b)           Clause (a) of Section 4.04 of the Credit Agreement, Fees, is hereby amended by replacing the percentage of “0.50%” set forth in the first line thereof with the percentage of “0.75%”:

 

(c)           Section 10.01, Minimum Consolidated EBITDA, of the Credit Agreement is hereby amended by restating the fourth row of the table set forth therein (which row sets forth the minimum Consolidated EBITDA for the period ending December 31, 2008) in its entirety as follows:

 

December 31, 2008

(12 Months)

$5.0 million

(d)           Section 10.02, Leverage Ratio, of the Credit Agreement is hereby amended by inserting the following sentence immediately after the table set forth in such Section:

 

Notwithstanding the foregoing, the Borrowers shall not be required to comply with this Section 10.02 for the Fiscal Quarter of the Borrowers ending on December 31, 2008.

4.           Affirmation and Acknowledgment of the Borrowers.  The Borrowers hereby ratify and confirm all of their Obligations to the Lenders, including, without limitation, the Loans, and the Borrowers hereby affirm their absolute and unconditional promise to pay to the Lenders all indebtedness, obligations and liabilities in respect of the Loans, the Letters of Credit, and all other amounts due under the Credit Agreement and the other Loan Documents as amended hereby.  The Borrowers hereby confirm that the Obligations are and remain secured pursuant to the Loan Documents and pursuant to all other instruments and documents executed and delivered by the Borrowers as security for the Obligations.

 

5.           No Other Waivers, Amendments or Consents.  Except for the waiver in Section 2 hereof and the amendments expressly set forth and referred to in Section 3 hereof, the Credit Agreement shall remain unchanged and in full force and effect.  The waiver contained herein shall not extend beyond the terms expressly set forth herein for such waiver, nor impair any right or power accruing to the Administrative Agent or any Lender with respect to any Default or Event of Default (other than the Specified Defaults) or any Default or Event of Default which occurs after the date hereof.  Nothing in this Agreement is intended or shall be construed to be a novation of any Obligations or any part of the Credit Agreement or any of the other Loan Documents or to affect, modify or impair the continuity or perfection of the Administrative Agent’s Liens under the Credit Agreement and Loan Documents.

 

6.           Representations, Warranties and Covenants.  To induce the undersigned Lenders to enter into this Agreement, the Credit Parties hereby warrant, represent and covenant to and with to the Lenders and the Administrative Agent that: (a) this Agreement has been duly authorized, executed and delivered by the Credit Parties; (b) this Agreement and the Credit Agreement as amended hereby constitute legal, valid and binding obligations of the Credit Parties, enforceable in accordance with their respective terms; (c) after giving effect to this Agreement and the Term Credit Agreement Amendment (as defined below), no Default or Event of Default has occurred and is continuing as of this date; (d) no approval or consent of, or filing with, any governmental agency or authority is required to make valid and legally binding the execution, delivery or performance by the Credit Parties of this Agreement or the Credit Agreement as amended hereby; and (e) after giving effect to this Agreement and the Term Credit Agreement Amendment, all of the representations and warranties made by the Credit Parties in the Credit Agreement are true and correct in all material respects on and as of the date of this Agreement (except to the extent that any such representations or warranties expressly referred to a specific prior date and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement or the other Loan Documents).  Any breach by the Credit Parties of any of its representations, warranties and covenants contained in this Section 7 shall be an Event of Default under the Credit Agreement.

 

 

7.            Conditions to Effectiveness.  This Agreement shall not become effective unless and until the Administrative Agent has received (a) one or more counterparts of this Agreement, duly executed, completed and delivered by the Borrowers, the other Credit Parties and the Required Lenders, (b) a fully-executed and effective fee letter dated as of the date hereof (the “Third Amendment Fee Letter”) by and among the Borrowers and the Administrative Agent; (c) payment by the Borrowers of all fees and expenses that are due and payable on or prior to the date hereof; (d) a fully-executed Fourth Amendment to the Term Credit Agreement, in substantially the form attached hereto as Exhibit A (the "Term Credit Agreement Amendment").

 

8.           Reimbursement of Expenses.  The Borrowers hereby agree to reimburse the Administrative Agent on demand for all reasonable fees and reasonable out-of-pocket costs and expenses (including without limitation the reasonable and actual fees and expenses of its counsel) incurred by the Administrative Agent in connection with the negotiation, documentation and consummation of this Agreement and the other documents executed in connection herewith and the transactions contemplated hereby.

 

9.           Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.

 

10.           Severability of Provisions.  Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.  To the extent permitted by applicable law, the Borrowers hereby waive any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

 

11.           Counterparts.  This Agreement may be executed in any number of several counterparts, all of which shall be deemed to constitute but one original and shall be binding upon all parties, their successors and permitted assigns.  Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

 

12.           Entire Agreement.  The Credit Agreement as amended through this Agreement embodies the entire agreement between the parties hereto relating to the subject matter thereof and supersedes all prior agreements, representations and understandings, if any, relating to the subject matter thereof.

 

13.           No Strict Construction.  The parties hereto have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

 

14.           No Third Party Reliance.  This Agreement is solely for the benefit of the parties signatory hereto, their successors and permitted assigns.  No waiver, consent or amendment pursuant to this Agreement may be relied upon by any third parties.

 

15.           Release.  The Credit Parties hereby remise, release, acquit, satisfy and forever discharge the Lenders, the Administrative Agent, the Collateral Agent, and the L/C Issuer and their respective agents, employees, officers, directors, predecessors, attorneys and all others acting or purporting to act on behalf of or at the direction of the Lenders, the Administrative Agent, the Collateral Agent, or the L/C Issuer of and from any and all manner of actions, causes of action, suit, debts, accounts, covenants, contracts, controversies, agreements, variances, damages, judgments, claims and demands whatsoever, in law or in equity, which any of such parties ever had or now has against the Lenders, the Administrative Agent, the Collateral Agent, and the L/C Issuer their respective agents, employees, officers, directors, attorneys and all persons acting or purporting to act on behalf of or at the direction of the Lenders or the Administrative Agent (“Releasees”), for, upon or by reason of any matter, cause or thing whatsoever arising from, in connection with or in relation to the Credit Agreement or any of the other Loan Documents (including this Agreement) through the date hereof.  Without limiting the generality of the foregoing, the Credit Parties waive and affirmatively agree not to allege or otherwise pursue any defenses, affirmative defenses, counterclaims, claims, causes of action, setoffs or other rights they do, shall or may have as of the date hereof, including, but not limited to, the rights to contest any conduct of the Lenders, Administrative Agent or other Releasees on or prior to the date hereof.

 

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IN WITNESS WHEREOF, the parties have caused this Third Amendment to Revolving Credit Agreement to be duly executed by their respective officers or representatives thereunto duly authorized, as of the date first above written.

 

 

BORROWERS:

JAMES RIVER COAL COMPANY

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

JAMES RIVER COAL SERVICE COMPANY

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

LEECO, INC.

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

TRIAD MINING, INC.

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

 

 

 

TRIAD UNDERGROUND MINING, LLC

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

BLEDSOE COAL CORPORATION

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

JOHNS CREEK ELKHORN COAL CORPORATION

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:

JAMES RIVER COAL SALES, INC.

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

BLEDSOE COAL LEASING COMPANY

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

BLUE DIAMOND COAL COMPANY

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

MCCOY ELKHORN COAL CORPORATION

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

GUARANTORS:

BDCC HOLDING COMPANY, INC.

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

EOLIA RESOURCES, INC.

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

SHAMROCK COAL COMPANY, INCORPORATED

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

JOHNS CREEK COAL COMPANY

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

JOHNS CREEK PROCESSING COMPANY

By: /S/ Peter T. Socha

Name: Peter T. Socha

Title:   CEO

 

 

 

 

 

 

 

 

 

 

 

LENDER, ADMINISTRATIVE AGENT AND COLLATERAL AGENT:

GENERAL ELECTRIC CAPITAL CORPORATION

By: /S/ James Desantis

Name: James Desantis

Title: Duly Authorized Signatory

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Term Loan Credit Agreement Amendment]