NINTHAMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

EX-10.1 2 ex10-1.htm

NINTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

THIS NINTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”) dated as of June 9, 2017, is made by and among RHINO ENERGY LLC, a Delaware limited liability company (the “Borrower”), each of the GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined), and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders under the Credit Agreement (hereinafter referred to in such capacity as the “Administrative Agent”).

W I T N E S S E T H:

WHEREAS, the Borrower, the Administrative Agent and the Lenders are parties to that certain Amended and Restated Credit Agreement dated July 29, 2011, as amended by that certain First Amendment to Amended and Restated Credit Agreement dated April 18, 2013, as amended by that certain Second Amendment and Consent to Amended and Restated Credit Agreement dated March 19, 2014, as amended by that certain Third Amendment to Amended and Restated Credit Agreement dated April 28, 2015, as amended by that certain Fourth Amendment to Amended and Restated Credit Agreement dated March 17, 2016, as amended by that certain Fifth Amendment to Amended and Restated Credit Agreement dated May 13, 2016, as amended by that certain Sixth Amendment and Consent to Amended and Restated Credit Agreement dated as of July 19, 2016, further amended by that certain Seventh Amendment to Amended and Restated Credit Agreement dated as of December 30, 2016, and further amended by that certain Eighth Amendment to Amended and Restated Credit Agreement dated as of March 23, 2017 (as the same may be further amended, modified or supplemented from time to time, the “Credit Agreement”);

WHEREAS, the Borrower wishes to make certain changes with respect to the sale of certain assets and reductions in Commitments as a result of the sale of such assets and reductions in the undrawn face amount of outstanding Letters of Credit.

NOW, THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows:

1. Definitions. Except as set forth in this Amendment, defined terms used herein shall have the meanings given to them in the Credit Agreement:

2. Amendment to Credit Agreement.

(a) Defined Terms - New. Section 1.1 of the Credit Agreement shall be amended by adding the following new definition thereto in appropriate alphabetical order:

“Mammoth Share Disposition shall mean the sale from time to time by the Borrower of its shares of stock in Mammoth Energy Service, Inc.”

“Ninth Amendment Effective Date shall mean June 9, 2017.”

“Rock Haul Truck Sale Leaseback shall mean that certain contemporaneous sale and leaseback transaction to be potentially entered into by certain of the Loan Parties of four 785D Rock Haul Trucks provided the sales price and lease terms are in form and substance satisfactory to the Administrative Agent.”

(b) Reduction of Revolving Credit Commitments. Subsection 2.12(i) of the Credit Agreement shall be amended and restated as follows:

“(i) Letter of Credit Reductions. Upon (a) the expiration or termination of a Letter of Credit, the Revolving Credit Commitments shall be reduced on a dollar for dollar basis by an amount equal to the undrawn face amount of such Letter of Credit; provided that with respect to any Letter of Credit that has expired or is terminated and the obligations of the Loan Parties supported by such Letter of Credit are being supported by another Letter of Credit (even if such new Letter of Credit is issued in favor of a different bonding company or other Person), the Revolving Credit Commitments shall only be reduced on a dollar for dollar basis in an amount equal to the difference (if positive) between the undrawn face amount of such expiring or terminating Letter of Credit and the face amount of the new Letter of Credit supporting such obligations, and (b) the reduction of a Letter of Credit, the Revolving Credit Commitments shall be reduced on a dollar for dollar basis by an amount equal to the reduction of such Letter of Credit; provided that with respect to any Letter of Credit that has been reduced as a result of such obligations of the Loan Parties being supported by a new Letter of Credit (even if such new Letter of Credit is issued in favor of a different bonding company or other Person), the Revolving Credit Commitments shall be reduced on a dollar for dollar basis only in an amount equal to the difference (if positive) between the reduction in undrawn face amount of such Letter of Credit and the face amount of the new or increased Letter of Credit supporting such obligations. Revolving Credit Commitment reductions shall be applied ratably among the Lenders in proportion to their Ratable Shares;”

“(iv) Indebtedness (A) secured by Purchase Money Security Interests and capital leases not exceeding $20,000,000 in the aggregate and entered into prior to February 25, 2016 and (B) incurred in connection with the lease component of the Rock Haul Truck Sale Leaseback;

(d) Dispositions of Assets or Subsidiaries. Subsection 8.2.7 (iv) of the Credit Agreement shall be amended to delete the “or” and the end of such subsection.

(e) Dispositions of Assets or Subsidiaries. Subsection 8.2.7 (v) of the Credit Agreement shall be amended to delete the “and” and the end of such subsection.

(f) Dispositions of Assets or Subsidiaries. Subsection 8.2.7 (vi) of the Credit Agreement shall be amended and restated as follows:

“(vi) subject to the Commitment reduction provisions of Section 2.12 of this Agreement, (a) the Mammoth Share Dispositions occurring from time to time, or (b) any other sale, conveyance, assignment, lease, abandonment or other transfer or disposal of assets or Subsidiaries under this clause (b) provided that the net proceeds of which shall not exceed $5,000,000 in the aggregate per fiscal year unless consented to by the Required Lenders; and”

(g) Dispositions of Assets or Subsidiaries. Section 8.2.7 of the Credit Agreement shall be amended to add the following new subsection (vii):

“(vii) any sale of the assets sold pursuant to the Rock Haul Truck Sale Leaseback.”

(h) Operating Leases. Section 8.2.16 of the Credit Agreement shall be amended and restated as follows:

“8.2.16 Operating Leases. The Loan Parties shall not, and shall not permit any of their Subsidiaries to, enter into, or be obligated in respect of, any operating lease other than (i) in the ordinary course of business on terms and conditions typical for similarly situated businesses or (ii) pursuant to the Rock Haul Truck Sale Leaseback.”

(i) Maximum Capital Expenditures. Section 8.2.22 of the Credit Agreement shall be amended and restated as follows:

“8.2.22 Maximum Capital Expenditures. The Loan Parties shall not, and shall not permit any of its Subsidiaries to, make any payments on account of Capital Expenditures other than (i) the prior purchase of certain 785D rock trucks for a purchase price of approximately $2,460,000 in March of 2017, and (ii) other payments that would cause the aggregate amount of such payments made, calculated as of end of the most recent month, on a trailing twelve month basis, to exceed $20,000,000 for such twelve-month period.”

(j) Notice of Certain Events. Section 8.3.6 [Certain Events] is amended and restated as follows:

“8.3.6 Certain Events. Written notice to the Administrative Agent (i) at least five (5) calendar days prior thereto, with respect to any proposed sale or transfer of assets pursuant to Section 8.2.7(vi)(b), and (ii) of the amount of any reduction in the Commitments promptly after the sale, conveyance, assignment, lease, abandonment or other transfer or disposal of assets pursuant to Section 8.2.7(vi).

3. Conditions Precedent. The Borrower acknowledges and agrees that this Amendment and the Administrative Agent and Lenders’ consent set forth in this Amendment are subject to the following conditions precedent as determined by the Administrative Agent to its satisfaction:

(a) Execution and Delivery of Amendment. The Borrower, the Loan Parties, the Administrative Agent, and the Required Lenders shall have executed and delivered this Amendment, and all other documentation necessary for effectiveness of this Amendment shall have been executed and delivered all to the satisfaction of the Borrower, the Required Lenders and the Administrative Agent.

(b) Officer’s Certificate. The representations and warranties of the Loan Parties contained in Section 6 of the Credit Agreement, as amended by the modifications and additional representations and warranties of this Amendment, and in each of the other Loan Documents shall be true and accurate on and as of the date hereof with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and each of the Loan Parties shall have performed and complied with all covenants and conditions hereof and thereof after giving effect to this Amendment, no Event of Default or Potential Default shall have occurred and be continuing or shall exist after giving effect to this Amendment; and there shall be delivered to the Administrative Agent for the benefit of each Lender a certificate of the Borrower dated the date hereof and signed by the Chief Executive Officer, President, or Chief Financial Officer of the Borrower to each such effect.

(c) Secretary’s Certificate. There shall be delivered to the Administrative Agent for the benefit of each Lender a certificate dated the date hereof and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to:

(i) all actions taken by each Loan Party in connection with this Amendment and the other Loan Documents;

(ii) the names of the officer or officers authorized to sign this Amendment and the other Loan Documents and the true signatures of such officer or officers and specifying the Authorized Officers permitted to act on behalf of each Loan Party for purposes of this Amendment and the true signatures of such officers, on which the Administrative Agent and each Lender may conclusively rely; and

(iii) copies of its organizational documents, including its certificate of incorporation and bylaws, certificate of limited partnership and limited partnership agreement or limited liability company certificate and operating agreement, as the case may be, as in effect on the date hereof and certified by the appropriate state official where such document is filed in a state office (or, in the event that no change has been made to such organizational documents previously delivered to the Administrative Agent, so certified by the Secretary or Assistant Secretary of such Loan Party), together with certificates from the appropriate state officials as to the continued existence and good standing of the Borrower in the state of its formation and the state of its principal place of business.

(d) Legal Details. All legal details and proceedings in connection with the transactions contemplated by this Amendment and the other Loan Documents, including but limited to all documentation and information required by the regulatory authorities under applicable “know your customer”, anti-money laundering, and Patriot Act rules and regulations with respect to the Loan Parties, shall be in form and substance satisfactory to the Administrative Agent, and the Administrative Agent shall have received all such other counterpart originals or certified or other copies of such documents and proceedings in connection with such transactions, in form and substance satisfactory to the Administrative Agent, as the Administrative Agent or its counsel may reasonably request.

(e) Payment of Fees. The Borrowers shall have paid to the Administrative Agent all fees, costs and expenses payable to the Administrative Agent, including but not limited to (i) a $10,000 consent fee to the Lenders who execute this Amendment on or before the Ninth Amendment Effective Date, and (ii) the fees and expenses of the Administrative Agent’s legal counsel.

4. Representations and Warranties. By its execution and delivery of this Amendment to Administrative Agent, Borrower, and each of the other Loan Parties represents and warrants to Administrative Agent and Lenders as follows:

(a) Authorization, Etc. Each Loan Party has duly authorized, executed, and delivered this Amendment.

(b) Material Adverse Change. After giving effect to this Amendment, no Material Adverse Change shall have occurred with respect to Borrower or any of the other Loan Parties since the Closing Date of the Credit Agreement.

(c) Litigation. After giving effect to this Amendment, there are no actions, suits, investigations, litigation, or governmental proceedings pending or, to Borrower’s or any other Loan Party’s knowledge, threatened against any of the Loan Parties that could reasonably be expected to result in a Material Adverse Change.

(d) Loan Documents. The representations and warranties set forth in the Credit Agreement and the Loan Documents shall be true and correct on and as of the date of this Amendment after giving effect to this Amendment with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties that relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and no Event of Default shall exist and be continuing under the Credit Agreement or under any Loan Document as of the date of this Amendment after giving effect to this Amendment.

5. Miscellaneous.

(a) Full Force and Effect. Nothing contained herein shall operate to release the Borrower, any other Loan Party, or any other person or persons from their liability to keep and perform the provisions, conditions, obligations, and agreements contained in the Credit Agreement or the other Loan Documents, except as expressly herein modified, and the Borrower and each other Loan Party hereby reaffirms that each and every provision, condition, obligation, and agreement in the Credit Agreement and the other Loan Documents shall continue in full force and effect, except as expressly herein modified. The Borrower and each other Loan Party acknowledge that there are no agreements to make any further amendments or modifications of the Credit Agreement and the Loan Documents, nor are the Administrative Agent and the Lenders under any obligation to make any further amendments or modifications to the Credit Agreement and the Loan Documents other than those changes expressly set forth in this Amendment. This Amendment shall not constitute or be construed as a waiver of any Event of Default or event which with the giving of notice or the passage of time or both would constitute an Event of Default by Borrower under any of the Loan Documents or any of the Administrative Agent’s or the Lenders’ rights and remedies with respect thereto. The validity, priority and perfection of all security interests and other liens granted or created by the Loan Documents is hereby acknowledged and confirmed, and the Loan Documents shall continue to secure the Loans, as amended by this Amendment, without any change, loss or impairment of the priority of such security interests or other liens.

(b) Release of Administrative Agent and Lenders. The Borrower and each of the other Loan Parties hereby fully and unconditionally release and forever discharge the Administrative Agent and the Lenders, their employees, directors, officers, attorneys, branches, affiliates, subsidiaries, successors and assigns and all persons, firms, corporations and organizations acting on any of their behalves (the “Released Parties”) of and from any and all claims, liabilities, demands, obligations, damages, losses, actions and causes of action whatsoever which the Borrower or any of the other Loan Parties may now have or claim to have against the Released Parties as of the date hereof, whether presently known or unknown and of any nature and extent whatsoever, including, without limitation, on account of or in any way affecting, concerning or arising out of or founded upon this Amendment, the Credit Agreement, or any of the Loan Documents, including but not limited to all such loss or damage of any kind heretofore sustained or that may arise as a consequence of the dealings between the parties up to and including the date hereof, including but not limited to, the administration or enforcement of the Obligations, the Loan or any of the Loan Documents. The obligations of the Borrower and the other Loan Parties under the Loan Documents and the Credit Agreement, as amended by this Amendment, shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by:

(i) any exercise or non-exercise of any right, remedy, power or privilege under or in respect of the Credit Agreement, as amended by this Amendment, the Loan Documents or any document relating to or evidencing any of the Lender’s liens or applicable law, including, without limitation, any waiver, consent, extension, indulgence or other action or inaction in respect thereof; or

(ii) any other act or thing or omission or delay to do any other act or thing which could operate to or as a discharge of the Borrower or any other Loan Party as a matter of law, other than payment in full of all Obligations, including but not limited to all obligations under the Loan Documents and the Credit Agreement, as amended by this Amendment.

(c) Counterparts. This Amendment may be signed in counterparts (by facsimile transmission or otherwise), but all of which together shall constitute one and the same instrument.

(d) Incorporation into Credit Agreement. This Amendment shall be incorporated into the Credit Agreement by this reference. All representations, warranties, Events of Default, and covenants set forth herein shall be a part of the Credit Agreement as if originally contained therein.

(e) Governing Law. This Amendment shall be deemed to be a contract under the Laws of the Commonwealth of Pennsylvania and for all purposes shall be governed by and construed and enforced in accordance with the internal laws of the Commonwealth of Pennsylvania without regard to its conflict of laws principles.

(f) No Novation. Except as amended hereby, all of the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect. Borrower, the other Loan Parties, each Lender, and Administrative Agent acknowledge and agree that this Amendment is not intended to constitute, nor does it constitute, a novation, interruption, suspension of continuity, satisfaction, discharge or termination of the obligations, loans, liabilities, or indebtedness under the Credit Agreement or the other Loan Documents.

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