Exhibit 10.1
Execution
Version
Third Amendment and
Joinder Agreement
This Third Amendment and
Joinder Agreement , dated as of March 28, 2008 (this
“ Amendment ”), to that certain Credit Agreement, dated as of
October 26, 2005, among, Alpha NR Holding, Inc ., a
Delaware corporation (“ Holdings ”), A
lpha Natural Resources,
LLC , a Delaware limited liability company (the “
Borrower ”), the L enders and Issuing Banks party thereto from
time to time, and C iticorp
North America, Inc. , as administrative agent (in such
capacity, the “ Administrative Agent ”) and as
collateral agent for the Lenders and Issuing Banks, as amended by
that certain Amendment and Consent, dated as of December 22,
2006 (the “ First Amendment ”), among Holdings,
the Borrower and the Administrative Agent, as further amended by
that certain Second Amendment and Consent, dated as of
June 28, 2007 (the “ Second Amendment ”),
among Holdings, the Borrower and the Administrative Agent (as so
amended and as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”), among ALPHA NATURAL RESOURCES, INC., a
Delaware corporation and the successor by merger to Holdings
(“ ANR ”), the Borrower, the Administrative
Agent and the New Revolving Facility Lenders (this “
Amendment ”). Capitalized terms used herein but not
defined herein are used as defined in the Credit Agreement.
W i t n e s s e t h
:
Whereas, pursuant to
Section 2.21 of the Credit Agreement, the Borrower has
delivered a facility increase notice to the Administrative Agent
proposing New Revolving Facility Commitments in an aggregate
principal amount of $100,000,000 (the “ Facility
Increase ”); and;
Whereas, the Borrower
desires to make certain amendments to the Credit Agreement as more
fully described herein, solely for the purposes of implementing the
terms and conditions of the Facility Increase; and
Whereas, pursuant to
clause (f) of Section 9.08 (Waivers; Amendment) and
clause (a) of Section 2.21 (New Commitments) of the Credit
Agreement, the consent of ANR, the Borrower, the Administrative
Agent and each New Revolving Facility Lender providing the Facility
Increase is required to effect the amendments set forth herein;
and
Whereas , each New
Revolving Facility Lender identified on the signature pages hereto
(and having a commitment as set forth on Schedule I
hereto) and the Administrative Agent agree, subject to the
limitations and conditions set forth herein, to amend or otherwise
modify the Credit Agreement as set forth herein.
Now, Therefore, in
consideration of the foregoing, the mutual covenants and
obligations herein set forth and other good and valuable
consideration, the adequacy and receipt of which is hereby
acknowledged, and in reliance upon the representations, warranties
and covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1.
Amendment .
(a) Section 1.01 (Defined
Terms) of the Credit Agreement is hereby amended by inserting the
following definitions in such Section 1.01 in the appropriate
place to preserve the alphabetical order of the definitions in such
Section 1.01 (and, if applicable, the following definitions
shall replace in their entirety existing definitions for the
corresponding terms in such Section 1.01):
“ Facility
Increase ” means that certain facility increase
effective on the Third Amendment Effective Date, providing for a
Revolving Facility Commitment increase in an aggregate principal
amount of $100,000,000.”
“ Third Amendment
” means that certain Third Amendment to this Agreement, dated
as of the Third Amendment Effective Date, among ANR, Inc., the
Borrower, the Administrative Agent and each New Revolving Facility
Lender providing the New Revolving Facility Commitments under the
Facility Increase.
“ Third Amendment
Effective Date ” means the date on which the Third
Amendment shall have become effective in accordance with its
terms.
(b) Section 1.01 (Defined
Terms) of the Credit Agreement is hereby amended by deleting the
last two sentences of the definition of “Revolving Facility
Commitment” in their entirety and replacing them with the
following:
The initial amount of each Revolving
Facility Lender’s Revolving Facility Commitment is
(i) as of the Closing Date, as set forth on
Schedule 2.01 and (ii) as of the Third Amendment
Effective Date with respect to the Facility Increase, as set forth
on Schedule I to the Third Amendment, or in the
Assignment and Acceptance pursuant to which such Revolving Facility
Lender shall have assumed its Revolving Facility Commitment, as
applicable. The aggregate amount of the Revolving Facility
Commitments on the Third Amendment Effective Date is
$375,000,000.
Section 2. Conditions
Precedent . This Amendment shall become effective as of the
date (the “ Effective Date ”) on which each of
the following conditions precedent shall have been satisfied or
duly waived:
(a) Certain Documents.
The Administrative Agent shall have received each of the following,
in form and substance satisfactory to the Administrative
Agent:
(i) counterparts
of this Amendment, duly executed by each of ANR and the Borrower
(in each case, on behalf of itself and each other Loan Party), the
Administrative Agent and each New Revolving Facility Lender
providing a New Revolving Facility Commitment with respect to the
Facility Increase;
(ii) certified
copies of resolutions of the Board of Directors of each Loan Party
approving the consummation of the Facility Increase and the
execution, delivery and performance of this Amendment and the other
Loan Documents delivered in connection herewith;
(iii) a
favorable opinion of counsel to the Loan Parties, in form and
substance reasonably satisfactory to the Administrative Agent and
addressed to the Administrative Agent and the Lenders, addressing
such matters relating to this Amendment as the Administrative Agent
may
2
reasonably request, including without limitation a no conflicts
opinion with respect to material contracts; and
(iv) such
additional documentation as the Administrative Agent may reasonably
require.
(b) Payment of Costs and
Expenses. The Administrative Agent and the Lenders shall have
received payment of all fees, costs and expenses, including,
without limitation, all costs and expenses of the Administrative
Agent and the Lenders (including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent) in connection with this Amendment, the Credit
Agreement and each other Loan Document due and payable on or before
the Effective Date, as required by Section 5 hereof and any
separate fee letter dated on or about the date hereof among the
Administrative Agent and the Borrower).
(c) Representations and
Warranties. Each of the representations and warranties
conta
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