LIMITED CONSENT AND SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT DATED JULY 19, 2007Loan Agreement |
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A T MASSEY COAL COMPANY, INC | BANK OF AMERICA, N.A. | CIT GROUP/BUSINESS CREDIT, INC | PNC BANK, NATIONAL ASSOCIATION | UBS AG | UBS LOAN FINANCE LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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EXHBIT
10.1
TO AMENDED AND RESTATED CREDIT
AGREEMENT
This
LIMITED CONSENT AND SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT (this “ Agreement
”) is entered into as of July 19, 2007, 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,
the Administrative Borrower (on behalf of itself and each of
the other Loan Parties), the Administrative Agent, the
Collateral Agent, and the Required Lenders entered into that
certain Limited Waiver, Consent and First Amendment to Credit
Agreement effective as of March 12, 2007;
WHEREAS,
the Administrative Borrower has informed the Administrative
Agent of its desire to form one or more corporations (each an
“ Insurance Subsidiary ”), as
direct or indirect Wholly-Owned Subsidiaries of the
Administrative Borrower to engage in the Insurance Business
(as defined in Section 2.1 hereof);
WHEREAS,
the parties acknowledge that federal and state insurance laws
and regulations will impose certain restrictions on the
business and activities of the Insurance Subsidiaries,
including their ability to declare and issue Dividends, to
grant or permit Liens on their assets, to guarantee
Obligations of their parent corporations and to incur
Indebtedness and such insurance laws and regulations may
preclude or restrict any transfer or pledge of the Equity
Interests of the Insurance Subsidiaries;
WHEREAS,
the Administrative Borrower (on behalf of itself and each of
the other Loan Parties) has requested that Agents and the
Required Lenders (i) consent to the formation of one or more
Insurance Subsidiaries under Section 6.12 of the Credit
Agreement as direct or indirect Wholly-Owned Subsidiaries of
the Administrative Borrower, and (ii) amend certain Sections
of the Credit Agreement to permit the capitalization of such
Insurance Subsidiaries, to permit the incurrence of
Indebtedness and other obligations by the Insurance
Subsidiaries in the ordinary course of their business and the
granting of Liens (except Liens on the Collateral) to secure
such obligations and to relieve the Insurance Subsidiaries of
certain covenants and restrictions otherwise applicable to
Subsidiaries under the provisions of the Credit Agreement, all
upon the terms, and subject to the limitations, set forth
herein.
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
Limited Consent . Subject to the
satisfaction of each of the conditions to effectiveness set forth
in Section 3 hereof, the Administrative Borrower (on
behalf of itself and each of the other Loan Parties), the Agents
and the Required Lenders hereby agree as follows:
1.1
Immediately
upon the effectiveness of this Agreement, the Agents and the
Required Lenders hereby consent to the formation of one or more
Insurance Subsidiaries pursuant to Section 6.12 of the
Credit Agreement and to the issuance by any such Insurance
Subsidiary of the Equity Interests therein to the Administrative
Borrower or to any of its direct or indirect Wholly-Owned
Subsidiaries.
1.2
The
limited consent set forth in Section 1.1 above
is effective solely for the purposes set forth herein
and shall be limited precisely as written and shall not be deemed
to be a consent to any amendment, waiver or modification of any
term or condition of the Credit Agreement, Security Agreement or of
any other Loan Document, except as expressly provided in this
Agreement, or prejudice any right or rights that Administrative
Agent or Lenders have or may have in the future under or in
connection with the Credit Agreement, the Security Agreement or any
other Loan Document.
2
Agreements and Amendments to Credit Agreement
. Subject to the satisfaction of each
of the conditions to effectiveness set forth in
Section 3 hereof, the Administrative Borrower (on
behalf of itself and each of the other Loan Parties), the Agents
and the Required Lenders hereby agree as follows:
2.1
Immediately
upon the effectiveness of this Agreement, the following sections of
the Credit Agreement are amended as follows:
2.1.1
Section 1.01 (Defined Terms) of the Credit Agreement
is amended by adding the following additional defined
terms:
“Insurance
Business” shall mean the business of (i) issuing surety
bonds, reclamation bonds, performance bonds, workers’
compensation insurance policies, fronting policies for all
risk general liability, casualty and property insurance and
other similar obligations as a captive insurance/bonding
company to support and/or insure reclamation and
workers’ compensation obligations and all risk general
liability, casualty and property risks customarily covered by
fronting policies, in each case incurred by the Companies in
the ordinary course of their businesses, and (ii) conducting
all activities ancillary thereto, including entering into
reinsurance arrangements, receiving premiums, establishing
reserves for the payment of claims and for the return of
unearned premiums and investing funds in support of such
reserves, all as may be required or permitted by applicable
insurance laws and regulations.
“Insurance
Subsidiary” shall mean any direct or indirect
Wholly-Owned Subsidiary of the Administrative Borrower that is
engaged solely in the Insurance Business.
2.1.2
Section 5.04 (Insurance) of the Credit Agreement is
amended by adding a new clause (c) as follows:
“(c) Notwithstanding
any provision of this Section 5.04 to the contrary, no
Insurance Subsidiary shall be permitted to provide any
insurance coverage with respect to the Collateral without the
prior written consent of each of the Administrative Agent and
the Collateral Agent (as determined in their sole discretion)
and the Required Lenders. Subject to the provisions
of the preceding sentence, the Loan Parties shall not be
deemed to have breached any provision of this Section
5.04 solely as a result of maintaining insurance coverages
with any Insurance Subsidiary.”
2.1.3
Section 5.11 (Additional Collateral; Additional
Guarantors) of the Credit Agreement is amended by
inserting the following provision as new clause
(d):
“(d) Notwithstanding
any provision of this Section 5.11 to the contrary,
clauses (a), (b) and (c) above shall not apply to any
Insurance Subsidiary.”
2.1.4
Section 6.01 (Indebtedness) of the Credit Agreement is
amended by (i) deleting the “and” at the end of
existing clause (o) thereof, (ii) deleting the
“.” at the end of existing clause (p) thereof and
substituting “; and” in its place and (iii)
inserting the following provision as new clause
(q):
“(q) Indebtedness
and other obligations incurred by any Insurance Subsidiary in
the ordinary course of its Insurance
Business.”
2.1.5
Section 6.02 (Liens) of the Credit Agreement is
amended by amending and restating clause (l) and (v) as
follows:
“(l) claims
of insureds against properties of any Insurance Subsidiary and
Liens granted or incurred on properties of any Insurance
Subsidiary in the ordinary course of its Insurance
Business.”
* * *
“(v) other
Liens (not of a type set forth in clauses (a) through (u)
above) incurred in the ordinary cour
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