Exhibit 10.1
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (this “ Agreement ”)
is entered into as of October 10, 2008 by and among. A.T.
MASSEY COAL COMPANY, INC., a Virginia corporation (the “
Administrative Borrower ”), individually and as agent
on behalf of the other Loan Parties (such term and each other
capitalized term used but not defined herein having the meaning
given to it in Article I of the Credit Agreement referenced
below), the Required Lenders signatory hereto, UBS AG, STAMFORD
BRANCH, as administrative agent (the “ Administrative
Agent ”), and THE CIT GROUP/BUSINESS CREDIT, INC., as
collateral agent and as security trustee (the “ Collateral
Agent ”), and together with the Administrative Agent, the
“ Agents ”) for the Secured Parties and Issuing
Bank.
RECITALS
WHEREAS, the Administrative
Borrower, the other Borrowers, the Guarantors, the Administrative
Agent, the Collateral Agent and Lenders entered into that certain
Amended and Restated Credit Agreement dated as of August 15,
2006 (as amended, supplemented, restated or otherwise modified from
time to time, the “ Credit Agreement
”);
WHEREAS, on August 12, 2008,
Holdings issued its 3.25% unsecured convertible senior notes in the
aggregate principal amount of $690 million due 2015 (the “
3.25% Convertible Notes ”), the net proceeds of which
have or will be used to fund the purchase in a tender offer and
refinancing all or substantially all of Holdings’ outstanding
6.625% Senior Notes and for other general corporate
purposes;
WHEREAS, the definition of
“Convertible Notes” under the Credit Agreement
currently does not include the 3.25% Convertible Notes;
and
WHEREAS, the Administrative Borrower
(on behalf of itself and each of the other Loan Parties) has
requested the Agents and the Required Lenders to approve certain
technical amendments to the Credit Agreement on the terms, and
subject to the conditions, set forth herein for the purpose of
including the 3.25% Convertible Notes where the defined terms
“Convertible Notes” and/or “Senior Notes”
are used in the Credit Agreement.
NOW THEREFORE, in consideration of
the foregoing recitals, mutual agreements contained herein and for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Agents, the Required Lenders and
the Administrative Borrower (on behalf of itself and each of the
other Loan Parties) agree as follows:
1. Amendments to Credit
Agreement . Effective on the date of the satisfaction of
the conditions precedent set forth in Section 2
hereof:
(a) Section 1.01 (Defined
Terms) of the Credit Agreement is amended by adding or changing
certain defined terms as follows:
“ 3.25% Convertible Note
Documents ” shall mean the 3.25% Convertible Note
Indenture, the 3.25% Convertible Notes and all other documents
executed and delivered with respect to the 3.25% Convertible Notes
or the 3.25% Convertible Note Indenture.”
“ 3.25% Convertible Note
Indenture ” shall mean the Indenture, dated as of
August 12, 2008, among Holdings, as issuer, certain
Subsidiaries of Holdings party thereto as guarantors and Wilmington
Trust Company, as Trustee.”
“ 3.25% Convertible
Notes ” shall mean Holdings’ 3.25% Convertible
Senior Notes due August 1, 2015, issued under the 3.25%
Convertible Note Indenture in an aggregate original principal
amount of $690 million.”
“ Convertible Note
Documents ” shall mean the 2.25% Convertible Note
Documents, the 4.75% Convertible Note Documents and the 3.25%
Convertible Note Documents.”
“ Convertible Notes
” shall mean the 2.25% Convertible Notes, the 4.75%
Convertible Notes and the 3.25% Convertible
Notes.”
(b) Clause (b) of
Section 6.01 (Indebtedness) of the Credit Agreement is amended
and restated as follows:
“(b) (i) Indebtedness actually
outstanding on the Restatement Date and listed on Schedule 6.01(b),
including, without limitation, the Senior Notes (other than the
3.25% Convertible Notes), (ii) the 3.25% Convertible Notes (a
portion of the net proceeds thereof have been or will be used to
refinance all or substantially all of the 6.625% Senior Notes) or
(iii) refinancings or renewals of the Indebtedness described
in the preceding clauses (i) or (ii); provided that
(A) any such refinancing Indebtedness is in an aggregate
principal amount not greater than the aggregate principal amount of
the Indebtedness being renewed or refinanced, plus the amount of
any premiums required to be paid thereon and fees and expenses
associated therewith, (B) such refinancing Indebtedness has a
later or equal final maturity and longer or equal remaining
weighted average life than the Indebtedness being renewed or
refinanced and (C) except for any refinancing of the 6.625%
Senior Notes or the 3.25% Convertible Notes, the covenants, events
of default, subordination and other provisions thereof (including
any guarantees thereof) shall be, in the aggregate, no less
favorable to the Lenders than those contained in the Indebtedness
being renewed or refinanced;”
(c) Clauses (e) and (f) of
Section 6.06 (Prepayments and Redemptions of Senior Notes;
Dividends) of the Credit Agreement are amended and restated as
follows:
“(e) so long as no
Default exists or would result therefrom and Excess Availability
shall be no less than $30 million after giving effect thereto, any
Company (other than Holdings) may pay cash Dividends, directly or
indirectly, to Holdings for the purpose of purchasing or redeeming,
so long as all the proceeds thereof are promptly used by Holdings
to purchase or rede
