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Exhibit
10.30
EXECUTION VERSION
FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT, dated
as of January 31, 2007 (this “First
Amendment” ), is by and among International Coal Group,
Inc., a Delaware corporation (“ Holdings ”),
ICG, LLC, a Delaware limited liability company and a wholly owned
direct subsidiary of Holdings ( “Borrower” ) and
the Lenders (as defined below) party hereto, and is with respect to
the Second Amended and Restated Credit Agreement, dated as of
June 23, 2006 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the “Credit
Agreement” ), among Holdings, Borrower, the Guarantors
party thereto, the lenders party thereto (the
“Lenders” ), J.P. Morgan Securities Inc. and UBS
Securities LLC, as Joint Lead Arrangers and Joint Bookrunners,
JPMorgan Chase Bank, N.A. and CIT Capital USA Inc., as
Co-Syndication Agents, Bank of America, N.A. and Wachovia Bank,
N.A., as Co-Documentation Agents, JPMorgan Chase Bank, N.A. and
Bank of America, N.A., as Issuing Banks, UBS Loan Finance LLC, as
Swingline Lender and UBS AG, Stamford Branch, as Issuing Bank,
Administrative Agent and Collateral Agent. Capitalized terms used
but not defined in this First Amendment have the meanings given to
such terms in the Credit Agreement.
RECITALS
WHEREAS, Borrower wishes to
make certain amendments to the Credit Agreement, as more
particularly described in Article I of this First Amendment;
and
WHEREAS, the Lenders party
hereto are willing to agree to such amendments on the terms and
subject to the conditions contained herein.
AGREEMENT
NOW, THEREFORE, in
consideration of the promises and the mutual agreements herein
contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I.
AMENDMENTS TO CREDIT
AGREEMENT
Section 1.01
Amendments Related to Additional Revolving Commitments
.
(a) The following terms are
added to Section 1.01 of the Credit Agreement in their proper
alphabetical order:
“ First
Amendment ” shall mean the First Amendment to this
Agreement, dated as of January 31, 2007.
“ First Amendment
Effective Date ” shall mean the date on which of each of
the conditions set forth in Article II of the First Amendment has
been either satisfied or waived.
(b) Subparts (a),
(e) and (f) of the definition of “ Consolidated
EBITDA ” are deleted in their entirety and replaced
respectively with the following:
(a) Consolidated Interest
Expense for such period plus to the extent directly related
to the Transactions, amortization of debt issuance costs, debt
discount or premium and other financing fees and
expenses,
(e) the aggregate amount of
charges reducing Consolidated Net Income that are directly incurred
in connection with (i) the Sago Mine Incident (not to exceed
$15.2 million) and (ii) the Viper Mine Incident (not to exceed
$3.5 million); provided that such charges shall not be
included in Consolidated EBITDA for the purposes of determining the
Applicable Margin or the Commitment Fee pursuant to Annex I
,
(f) for any twelve-month
period following the twelve-month period in which the Sago Mine
Incident and/or the Viper Mine Incident occurred, the aggregate
amount of any extraordinary, non-recurring charges, as certified by
a Financial Officer of Borrower (not to exceed $10.0 million in any
twelve-month period); provided that such extraordinary,
non-recurring charges shall not be included in Consolidated EBITDA
for the purposes of determining the Applicable Margin or the
Commitment Fee pursuant to Annex I ,
(c) Paragraph (x) of the
definition of “ Permitted Acquisitions ” is
deleted in its entirety and replaced with the following:
(x) after giving effect to
such transaction, the aggregate Acquisition Consideration for all
Permitted Acquisitions shall not (A) at any time prior to
January 1, 2009, exceed $50.0 million or (B) at any time
on or after January 1, 2009, exceed $150.0 million (exclusive
in the case of both (A) and (B) of any amounts financed
by Excluded Issuances); provided that, in each case, any
Equity Interests constituting all or a portion of such Acquisition
Consideration shall not have a cash dividend requirement on or
prior to the Revolving Maturity Date; and
(d) Sections 6.01(e)(i)(i)
and (g) of the Credit Agreement are deleted in their entirety
and replaced respectively with the following:
(e)(i)(i) such Indebtedness
(other than any Indebtedness incurred pursuant to this section
relating to the financing (or refinancing) of the Borrower’s
headquarters in Scotts Depot, West Virginia) is incurred before or
within 180 days after such acquisition or the completion of such
construction or improvement,
(g) Indebtedness in respect
of bid, performance, surety or Reclamation bonds issued for the
account of any Company in the ordinary course of business, or any
similar financial assurance obligations under Environmental Laws or
worker’s compensation laws or with respect to self-insurance
obligations, including guarantees or obligations of any Company
with respect to letters of credit supporting such bid, performance
or surety obligations (in each case other than for an obligation
for money borrowed); provided that such Indebtedness is not
secured by any Lien other than a Lien described in
Section 6.02(t) ;
(e) Sections 6.10(a) and
(b) of the Credit Agreement are deleted in their entirety and
replaced with the following:
(a) Maximum Leverage
Ratio . Permit the Leverage Ratio, at any date during any
period set forth in the table below, to exceed the ratio set forth
opposite such period in the table below:
2
|
|
|
|
Period
|
|
Leverage Ratio |
| January 1, 2007 to March 31, 2007 |
|
3.75 to 1.0 |
| April 1, 2007 to September 30, 2007 |
|
4.00 to 1.0 |
| October 1, 2007 to December 31, 2007 |
|
4.25 to 1.0 |
| January 1, 2008 to March 31, 2008 |
|
4.50 to 1.0 |
| April 1, 2008 to June 30, 2008 |
|
4.00 to 1.0 |
| July 1, 2008 to September 30, 2008 |
|
3.50 to 1.0 |
| October 1, 2008 to December 31, 2008 |
|
3.00 to 1.0 |
| January 1, 2009 and thereafter |
|
2.75 to 1.0 |
(b) Minimum Interest
Coverage Ratio . Permit the Consolidated Interest Coverage
Ratio, at the last day of any Test Period during the periods set
forth table below, to exceed the ratio set forth opposite such
period in the table below:
|
|
|
|
Test
Period
|
|
Interest Coverage Ratio |
| January 1, 2007 to March 31, 2007 |
|
3.00 to 1.0 |
| April 1, 2007 to September 30, 2007 |
|
2.75 to 1.0 |
| October 1, 2007 to March 31, 2008 |
|
2.25 to 1.0 |
| April 1, 2008 to June 30, 2008 |
|
2.50 to 1.0 |
| July 1, 2008 to September 30, 2008 |
|
2.75 to 1.0 |
| October 1, 2008 to December 31, 2008 |
|
3.50 to 1.0 |
| January 1, 2009 and thereafter |
|
4.00 to 1.0 |
(f) The table in
Section 6.10(d) of the Credit Agreement is deleted in its
entirety and replaced with the following:
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|
|
|
Period
|
|
Amount (in millions) |
| January 1, 2007 to December 31, 2007 |
|
$175,000,000 |
| January 1, 2008 to December 31, 2008 |
|
$200,000,000 |
| January 1, 2009 to December 31, 2009 |
|
$200,000,000 |
| January 1, 2010 to December 31, 2010 |
|
$200,000,000 |
| January 1, 2011 to December 31, 2011 |
|
$100,000,000 |
(g) Clause (z) of the
proviso in Section 6.10(d) is deleted in its entirety and
replaced with the following:
3
(z) the amount set forth
in the table above for any period may be increased by an
amount equal to (A) 50% of (B) the amount of
(1) any Indebtedness incurred under
Section 6.01(n) and/or Section 6.01(o)
which a Responsible Officer of the Borrower has certified to the
Administrative Agent will be used prior to the Revolving Maturity
Date to finance Capital Expenditures and (2) any Equity
Interests issued under Section 6.13 which a Responsible
Officer of the Borrower has certified to the Administrative Agent
will be used prior to the Revolving Maturity Date to finance
Capital Expenditures, so long as the aggregate increase in Capital
Expenditures permitted by this proviso since the First Amendment
Effective Date does not exceed $250.0 million.
(h) The table entitled
“ Applicable Margin for Revolving Loans, Swingline Loans
and LC Participation Fee ” in Annex 1 of the Credit
Agreement is deleted in its entirety and replaced with the
following:
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|
|
|
|
|
|
| |
|
Revolving Loans and Swingline Loans
(and LC Participation
Fee)
|
|
|
Leverage
Ratio*
|
|
Eurodollar |
|
|
ABR |
|
|
Level I
³
3.75:1.0
|
|
3.00 |
% |
|
2.00 |
% |
|
|
|
|
Level II **
<3.75:1.0 but
³
2.50:1.0
|
|
2.75 |
% |
|
1.75 |
% |
|
|
|
|
Level III
<2.50:1.0 but
>2.00:1.0
|
|
2.50 |
% |
|
1.50 |
% |
|
|
|
|
Level IV
£
2.00:1.0
|
|
2.25 |
% |
|
1.25 |
% |
(i) A new footnote
“**” is inserted in Annex 1 of the Credit Agreement as
follows: “** Note: As of the First Amendment Effective Date,
the Applicable Margin shall be set at Level II and shall be
adjusted, if applicable, starting April 1,
2007.”
(j) The table entitled
“ Applicable Fee ” in Annex 1 of the Credit
Agreement is deleted in its entirety and replaced with the
following:
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|
|
|
|
|
|
|
Leverage
Ratio*
|
|
Applicable Fee (at
any time when the
Revolving Exposure
is ³ $162,500,000)
|
|
|
Applicable Fee (at
any time when the
Revolving Exposure
is <$162,500,000) |
|
|
Level I
>2.00:1.0
|
|
0.50 |
% |
|
0.625 |
% |
|
|
|
|
Level II
£
2.00:1.0
|
|
0.375 |
% |
|
0.50 |
% |
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ARTICLE II.
CONDITIONS TO
EFFECTIVENESS
Section 2.01
Conditions to Consent and Certain Amendments . The
effectiveness of the amendments contained in Article I of this
First Amendment are conditioned upon satisfaction of the following
conditions precedent (the date on which all such conditions
precedent have been satisfied being referred to herein as the
“ First Amendment Effective Date ”).
(a) Fees .
(i) The Arrangers and the
Administrative Agent shall have received all Fees and other amounts
due and payable on or prior to the First Amendment Effective Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses (including the reasonable legal
fees and expenses of Latham & Watkins LLP, special counsel
to the Agents, and the reasonable fees and expenses of any local
counsel, appraisers, consultants and other advisors) required to be
reimbursed or paid by Borrower hereunder or under any other Loan
Document.
(ii) The Administrative Agent
shall have received, for the benefit of each Lender whose signature
page to this First Amendment has been received, no later than the
date on which each of the other conditions in this
Section 2.01 are satisfied, a fee equal to 0.25% of the
aggregate Revolving Commitments, as of the First Amendment
Effective Date, of each such Lender, which such fee shall be
allocated pro rata among such Lenders.
(b) Loan Documents .
All legal matters incident to this First Amendment and the
transactions contemplated hereby and the other Loan Documents shall
be satisfactory to the Lenders and to the Administrative Agent and
there shall have been delivered to the Administrative Agent an
executed counterpart of each of the Loan Documents required to be
executed and delivered on the First Amendment Effective Date,
including but not limited to, (i) this First Amendment and
(ii) the consent of the Guarantors attached hereto as
Exhibit A executed by each of the Guarantors (including any
persons becoming Guarantors on the date hereof).
(c) Officers’
Certificate . The Administrative Agent shall have received a
certificate, dated the First Amendment Effective Date and signed by
the vice president
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