|
Exhibit 10.3
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of September 27, 2006
This AMENDMENT NO. 1 TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT (this " Amendment No.
1 ") is made by and among PEABODY ENERGY CORPORATION, a
Delaware corporation (the " Borrower "), the Lenders (as
defined below) and BANK OF AMERICA, N.A., as Administrative Agent
(the " Administrative Agent ").
PRELIMINARY STATEMENTS:
1. The Borrower, each lender
from time to time party thereto (collectively, the " Lenders
" and individually, a " Lender ") and the Administrative
Agent have entered into that certain Third Amended and Restated
Credit Agreement, dated as of September 15, 2006 (the "
Credit Agreement "); capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms
in the Credit Agreement.
2. The Borrower has requested
that the Lenders amend the Credit Agreement to permit the Borrower
to acquire the shares of Excel by way of a tender offer.
3. Subject to the terms and
conditions set forth below, and in consideration of certain
agreements of the Borrower and other Loan Parties set forth herein
and in the accompanying Consent of Loan Parties, the requisite
Lenders are willing to agree to this Amendment No. 1.
NOW, THEREFORE, in consideration
of the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1 Amendments to the Credit Agreement . Upon the satisfaction
of the applicable conditions precedent set forth in Section 2,
the Credit Agreement is hereby amended as follows:
(a) The following new section
heading is hereby added to the Table of Contents following
Section 5.17 in the Table of Contents,:
"Section 5.18. Use of
Proceeds."
(b) The following new
definitions are hereby added to Section 1.01 of the
Credit Agreement:
"" Excel Board Control "
has the meaning specified in the definition of Consolidated
EBITDA."
"" Tender Offer " means a
takeover offer pursuant to the laws of Australia for all of the
outstanding ordinary shares of Excel and any follow up arrangements
to acquire any remaining outstanding ordinary shares of Excel
pursuant to lawful means."
(c) The following definitions
to Section 1.01 of the Credit Agreement are hereby
amended in its entirety to read:
"" Acquisition " means the
proposed acquisition of Excel through either (i) a scheme of
arrangement to acquire all of the outstanding ordinary shares of
Excel on the Acquisition Effective Date and the payment of fees and
expenses related thereto, or (ii) the Tender Offer and the
payment of fees and expenses related thereto."
"" Acquisition Effective
Date " means either (i) the date on which the Scheme is
implemented, currently expected to be on or before
December 31, 2006, as such date may be postponed by the
parties to the Merger Agreement, and in no event later than
January 31, 2007, or (ii) each date on which the Tender
Offer is consummated, and in no event later than January 31,
2007."
"" Term Loan Borrowing "
means (i) a borrowing consisting of simultaneous Term Loans of
the same Type and (ii) one or more borrowings of Delayed Draw
Term Loans of the same Type, and, in the case of Eurocurrency Rate
Loans, having the same Interest Period made by each of the Term
Loan Lenders pursuant to Section 2.01(a) ."
(d) The definition of "
Consolidated EBITDA " in Section 1.01 of the
Credit Agreement shall be amended by deleting the period at the end
and adding the following at the end of such definition:
"; provided that, in
calculating Consolidated EBITDA of the Borrower and its
Subsidiaries for any period after the consummation of the
Acquisition: (i) if the Borrower and its Subsidiaries own
greater than 50% but less than all of the outstanding ordinary
shares of Excel and a majority of the members of the board of
directors or equivalent governing body of Excel are individuals
whose election or nomination to such board of directors or other
governing body was approved by the Borrower (" Excel Board
Control "), the portion of Consolidated EBITDA attributable to
Excel and its Subsidiaries shall be limited to a percentage of the
Consolidated EBITDA equal to the percentage of outstanding ordinary
shares of Excel then owned by the Borrower and its Restricted
Subsidiaries, and (ii) if the Borrower and its Restricted
Subsidiaries own less than a majority of the common stock of Excel
or the Borrower does not have Excel Board Control, the calculation
of Consolidated EBITDA (A) shall exclude any amounts
attributable to Excel and its Subsidiaries, and (B) shall not
include any earnings on the Borrower’s equity investment in
Excel unless the Borrower receives cash distributions of such
equity earnings in such period."
2
(e) The first subsection
(ii) of Section 2.01(a) shall be amended in its
entirety to read:
"(ii) each Lender holding a
Delayed Draw Term Loan Commitment severally agrees to make, in
Dollars during the Delayed Draw Term Loan Commitment Period, one or
more delayed draw term loans, each of which shall be a Term Loan
hereunder (each a " Delayed Draw Term Loan "), to the
Borrower in an aggregate principal amount not to exceed such Term
Loan Lender’s Applicable Percentage of the Delayed Draw Term
Loan Commitment;"
(f) The first paragraph to
Section 4.02 of the Credit Agreement is hereby amended
in its entirety to read:
"The obligation of each Lender to
honor any Request for Credit Extension with respect to the Delayed
Draw Term Loan or with respect to the Revolving Credit Facility,
the proceeds of which will be used to finance the Acquisition is
subject to the Effective Date having occurred and the following
conditions precedent, which shall be either (i) in the case of
the Scheme, conclusively tested no later than 8:00 a.m., Sydney
time, on the Second Court Date (as defined in the Merger Agreement)
for the Scheme (other than conditions which require court approval
for the Scheme and assuming the effectiveness of the Scheme
substantially contemporaneously with such Second Court Date), or
(ii) in the case of any Request for Credit Extension to
finance the Tender Offer, be tested on the date of the applicable
requested Borrowing:"
(g)
Section 4.02(a) of the Credit Agreement is hereby
amended in its entirety to read:
"(A) In the case of the Scheme,
there shall not have occurred either (1) one or more changes,
events, occurrences or matters which has had or is likely to have
the effect of a diminution in the (i) consolidated net assets
of Excel and all its Subsidiaries, taken as a whole (calculated on
the basis of the International Financial Reporting Standards as
adopted in Australia (" AIFRS ")), of at least A$50,000,000,
(ii) consolidated annual net profit after tax (calculated on
the basis of AIFRS), in any financial year after the one ending
June 30, 2006 of Excel and all its Subsidiaries, taken as a
whole, of at least A$12,500,000, or (iii) other than as a
consequence of changes in coal prices or currency exchange rate
changes or (2) an event takes place or is reasonably likely to
take place which would prevent Excel from operating its existing
mines, completing its development activities or entering into
arrangements in relation to the Wambo Underground, Wilpinjong or
Millenium projects (as defined in the Merger Agreement) in the
manner currently contemplated by Excel and such event is
sufficiently adverse to the financial position, profitability or
prospects of Excel so as to affect the commercial viability of the
Acquisition for the Borrower in a material respect, having regard
to the consideration to be paid in the Scheme, or (B) in the
case of the Tender Offer, all conditions precedent to the Tender
Offer have either been satisfied or waived with the consent of the
Administrative Agent."
(h) The first 2 words in
Section 4.02(b) is hereby deleted and replaced with the
following:
"In the case of the Scheme, the
Scheme"
(i)
Section 4.02(c) of the Credit Agreement is hereby
amended in its entirety to read:
"No Default shall exist, or would
result from such proposed Credit Extension or the application of
the proceeds thereof, by reason of (i) in the case of the
Scheme, any breach of any
3
representation or warranty which also constitutes a breach of a
representation and warranty in the Merger Agreement that is
material to the interests of the Lenders and would result in the
Borrower’s (or an applicable affiliate thereof) having a
right to terminate its obligations thereunder, (ii) in the
case of the Scheme or the Tender Offer, any breach of the
representations and warranties contained in
Section 5.01(a)(i) and (b)(ii) , 5.02(a)
, 5.04 or 5.14 (it being understood that the funding
of the Delayed Draw Term Loan and any Borrowing of Revolving Credit
Loans to fund the Acquisition shall not constitute a waiver by the
Lenders of any default or event of default that may exist under
this Agreement at the time of such funding), and (iii) in the
case of the Tender Offer, the occurrence of any event described in
Section 8.01(f) ;"
(j) The following
Section 5.18 is hereby added in its entirety following
Section 5.17 :
" Section 5.18. Use of
Proceeds . The Borrower will use the proceeds of the Loans
solely as provided for in Section 6.11 ."
(k) Section 6.11
is hereby amended in its entirety to read:
"On the Effective Date, the Term
Loan Facility and the Revolving Credit Facility shall be available
to (i) refinance and continue indebtedness under the Existing
Credit Agreement, and to pay fees and expenses related to such
refinancing and continuation, and (ii) for fees and expenses
related to the Acquisition. After the Effective Date, (i) the
Revolving Credit Facility shall be available for only working
capital, capital expenditures, and other lawful corporate purposes,
including to finance the Acquisition, and (ii) the Delayed
Draw Term Loan will be available only to finance the Acquisition
(A) on or about the Acquisition Effective Date if the Borrower
consummates the Acquisition pursuant to the Scheme, or (B) in
multiple draws during the period from the Effective Date through
the Acquisition Effective Date if the Borrower completes the
Acquisition pursuant to the Tender Offer; provided
that , if the Borrower proceeds to consummate the
Acquisition pursuant to (a) the Scheme, the Borrower agrees
that (i) if the Acquisition is not consummated within thirty
(30) days of the date on which the Delayed Draw Term Loan is
made to the Borrower to fund the Scheme, the proceeds of such
Delayed Draw Term Loan will be returned immediately to the Lenders
and used to prepay the Term Loan and (ii) such agreement will
be reflected to the reasonable satisfaction of the Administrative
Agent in a written escrow or similar arrangement governing the
proceeds of the Delayed Draw Term Loan for the period from the date
of making of such Loan until such proceeds are used to consummate
the Acquisition or returned to the Lenders as specified in clause
(i) of this sentence (whichever occurs first), or
| 
