Exhibit 10.28
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT, dated as of June 29, 2005 (this "SECOND
AMENDMENT"), is by and among ICG, LLC, a Delaware limited liability company
("BORROWER"), ICG, INC. (f/k/a International Coal Group, Inc.) ("ICG, INC."),
UBS AG, STAMFORD BRANCH, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"), and the Lenders (as defined below) party hereto, and is
with respect to the Amended and Restated Credit Agreement, dated as of November
5, 2004 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among Borrower, ICG, Inc., the
Guarantors party thereto, the lenders party thereto (the "LENDERS"), UBS
Securities LLC, as Arranger, Bookmanager and Syndication Agent, General Electric
Capital Corporation, as Documentation Agent, the Administrative Agent, UBS AG,
Stamford Branch, as Issuing Bank and Collateral Agent, and UBS Loan Finance LLC,
as Swingline Lender. Capitalized terms used but not defined in this Second
Amendment have the meanings given to such terms in the Credit Agreement.
RECITALS
WHEREAS, before giving effect to the Merger Transactions (as defined
below), Borrower is a direct wholly owned subsidiary of ICG, Inc.;
WHEREAS, for the purpose of facilitating the acquisition by
International Coal Group, Inc. of Anker Coal Group, Inc. ("ANKER") and its
subsidiaries and CoalQuest Development LLC ("COALQUEST"), International Coal
Group, Inc. has been formed as a direct wholly owned subsidiary of ICG, Inc.,
New ICG, LLC has been formed as a direct wholly owned subsidiary of
International Coal Group, Inc. and ICG Merger Sub, Inc. and Anker Merger Sub,
Inc. have each been formed as a direct wholly owned subsidiary of New ICG, LLC;
WHEREAS, pursuant to the Business Combination Agreement, dated as of
March 31, 2005 (as amended on May 10, 2005, the "▇▇▇▇▇ ▇▇ Agreement"), among
ICG, Inc., International Coal Group, Inc., ICG Merger Sub, Inc., Anker Merger
Sub, Inc. and Anker, (1) ICG, Inc. will be merged downstream with ICG Merger
Sub, Inc., leaving ICG, Inc. as the surviving entity, all shares of
International Coal Group, Inc. owned by ICG, Inc. will be canceled and ICG, Inc.
shareholders will receive International Coal Group, Inc. shares in exchange for
their ICG, Inc. shares, resulting in ICG, Inc. becoming a direct wholly owned
subsidiary of New ICG, LLC, and (2) Anker and Anker Merger Sub, Inc. will merge,
with Anker being the surviving company, and Anker shareholders will receive
International Coal Group, Inc. shares in exchange for their Anker shares,
resulting in Anker becoming a direct wholly owned subsidiary of New ICG, LLC
(the transactions described in clauses (1) and (2), the "ANKER BUSINESS
COMBINATION TRANSACTIONS");
WHEREAS, pursuant to the Business Combination Agreement, dated as of
March 31, 2005 (as amended on May 10, 2005, the "COALQUEST BC AGREEMENT"), among
ICG, Inc., International Coal Group, Inc., CoalQuest and the members of
CoalQuest, such members will contribute their membership interests in CoalQuest
to International Coal Group, Inc. in exchange for shares of International Coal
Group, Inc. (the "COALQUEST BUSINESS COMBINATION
TRANSACTION" and, together with the Anker Business Combination Transaction, the
"BUSINESS COMBINATION TRANSACTIONS");
WHEREAS, promptly following the Business Combination Transactions,
(1) Borrower will distribute its subsidiaries existing before the Merger
Transactions to ICG, Inc., (2) Borrower will merge upstream with New ICG, LLC,
with Borrower being the surviving entity, (3) WLR Coalquest Holding Corp. will
liquidate and distribute its assets to International Coal Group, Inc., and (4)
International Coal Group, Inc. will contribute all of its interests in CoalQuest
to Borrower (the "RELATED TRANSACTIONS" and, together with the Business
Combination Transactions, the "MERGER TRANSACTIONS");
WHEREAS, following the consummation of the Merger Transactions,
Borrower will be a direct wholly owned subsidiary of International Coal Group,
Inc., each of ICG, Inc., Anker and CoalQuest will be direct wholly owned
subsidiaries of Borrower and Borrower's subsidiaries existing before the Merger
Transactions will be direct wholly owned subsidiaries of ICG, Inc.;
WHEREAS, Section 6.05 and Section 6.07 of the Credit Agreement
prohibit the Loan Parties from merging with, purchasing or otherwise acquiring
any part of the property of any person (the "MERGER Prohibition"), other than in
certain limited circumstances set forth therein;
WHEREAS, Borrower has requested $35.0 million in aggregate principal
amount of additional Term Loans in accordance with Section 11.02(e) of the
Credit Agreement;
WHEREAS, Borrower wishes to make amendments to the Credit Agreement
related to the Merger Transactions, the additional Term Loans described in the
immediately preceding paragraph and certain other matters as more particularly
described herein; and
WHEREAS, the Required Lenders party hereto are willing to agree to
such amendments and waive the Merger Prohibition with respect to the Merger
Transactions 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.
WAIVER AND CONSENT
Section 1.01 Merger Transactions. The Required Lenders hereby waive the
Merger Prohibition with respect to the Merger Transactions on the terms and
subject to the conditions contained herein; provided that the Merger
Transactions shall be consummated in accordance in all material respects with
the Merger Documents as in effect on the date hereof, without the waiver or
amendment of any such terms that the Administrative Agent determines in its
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reasonable discretion has had or would reasonably be expected to result in a
Material Adverse Effect, unless approved by the Arranger and provided further
that true, correct and complete copies of such Merger Documents shall have been
provided to the Lenders.
ARTICLE II.
AMENDMENTS TO CREDIT AGREEMENT
Section 2.01 Amendments Related to Second Amendment Generally.
(a) The following terms are added to Section 1.01 of the Credit
Agreement in their proper alphabetical order:
"SECOND AMENDMENT" shall mean the Second Amendment to this Credit
Agreement, dated as of June 29, 2005.
"SECOND AMENDMENT EFFECTIVE DATE" shall mean the date on which the
Second Amendment becomes effective in accordance with the terms thereof.
Section 2.02 Amendments Related to LC Sublimit.
(a) The fifth "Whereas" clause of the Recitals to the Credit
Agreement is amended by (i) deleting the words "$60.0 million" in lines two and
three thereof and (ii) replacing them with the words "$75.0 million".
(b) The definition of "LC COMMITMENT" in the Credit Agreement is
amended by (i) deleting the words "$60.0 million" in line three thereof and (ii)
replacing them with the words "$75.0 million".
Section 2.03 Amendments Related to Fixed Charge Coverage Ratio.
(a) The text and table set forth in Section 6.10(c) of the Credit
Agreement are deleted in their entirety and replaced with the following:
[Intentionally left blank.]
(b) The definitions of "Consolidated Fixed Charge Coverage Ratio"
and "Consolidated Fixed Charges" are deleted in their entirety.
Section 2.04 Amendments Related to Merger Transactions.
(a) The Preamble to the Credit Agreement is amended by deleting the
words "formerly known as Newcoal, LLC" in the third line thereof.
(b) The following terms are added to Section 1.01 of the Credit
Agreement in their proper alphabetical order:
"▇▇▇▇▇ ▇▇ AGREEMENT" shall have the meaning given in the third
recital to the Second Amendment.
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"COALQUEST BC AGREEMENT" shall have the meaning given in the fourth
recital to the Second Amendment.
"MERGER AMENDMENTS EFFECTIVE DATE" shall mean the date on which each
of the conditions set forth in Section 3.02 of the Second Amendment has
been either satisfied or waived.
"MERGER DOCUMENTS" shall mean the ▇▇▇▇▇ ▇▇ Agreement, the CoalQuest
BC Agreement and the other documents effecting or evidencing the Merger
Transactions.
"MERGER TRANSACTIONS" shall have the meaning given in the fifth
recital to the Second Amendment.
(c) The following defined terms in Section 1.01 of the Credit
Agreement are amended as follows:
(i) The definition of "HOLDINGS" is deleted in its entirety
and replaced with the following:
"HOLDINGS" shall mean (a) prior to the Merger Amendments
Effective Date, ICG, Inc. (formerly known as International
Coal Group, Inc.) and (b) on and after the Merger Amendments
Effective Date, International Coal Group, Inc.
(ii) The definition of "MATERIAL AGREEMENTS" is amended by
adding "the Merger Documents," after "the Acquisition Documents," in the
first line thereof.
(iii) The definition of "PERMITTED ACQUISITION" is amended by
deleting the "," after "shall mean" in the first line thereof and
inserting "(1) the Merger Transactions or (2)" in place thereof.
(iv) The definitions of "TRANSACTION DOCUMENTS" and
"TRANSACTIONS" are deleted in their entirety and replaced with the
following:
"TRANSACTION DOCUMENTS" shall mean the Acquisition Documents,
the Merger Documents, the Reclamation Documents and the Loan
Documents.
"TRANSACTIONS" shall mean, collectively, the transactions to
occur on or prior to the Merger Amendments Effective Date pursuant
to the Transaction Documents, including (a) the consummation of the
Acquisition; (b) the consummation of the Merger Transactions; (c)
the execution, delivery and performance of the Loan Documents, the
initial Credit Extensions hereunder and the Credit Extensions made
on the Restatement Date and the Merger Amendments Effective Date;
(d) the Equity Financing; and (e) the payment of all fees and
expenses to be paid on or prior to the Merger Amendments Effective
Date and owing in connection with the foregoing.
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(d) The following Sections of the Credit Agreement are amended by
replacing "Restatement Date" with "Merger Amendments Effective Date" each time
it appears: 3.05, 3.06, 3.07, 3.09, 3.16, 3.19, 3.22 and 3.23.
(e) Section 3.06(b) of the Credit Agreement is amended by replacing
"date hereof" with "Merger Amendments Effective Date" in the third line thereof.
(f) Section 6.15 of the Credit Agreement is amended by (i) replacing
clause (a) of the first and third sentences with "the consummation of the
Transactions on the Closing Date, the Restatement Date and the Merger Amendments
Effective Date" and (ii) replacing "Restatement Date" with "Merger Amendments
Effective Date" in the fourth sentence thereof.
(g) Certain Schedules to the Credit Agreement to be agreed by the
Administrative Agent, shall be amended by replacing them in their entirety with
updated Schedules reflecting changes relating to the Merger Transactions. In
each case the substitution of such new Schedules shall be subject to the review
of such new Schedules by the Administrative Agent and its satisfaction with the
form and substance of such new Schedules.
Section 2.05 Amendments Related to Additional Term Loans.
(a) The following term is added to Section 1.01 of the Credit
Agreement in its proper alphabetical order:
"UPSIZED TERM LOAN COMMITMENT" shall mean, with respect to each
Lender, the commitment, if any, of such Lender to make a Term Loan
hereunder on the Merger Amendments Effective Date in the amount set forth
on Schedule I to the Lender Addendum executed and delivered by such Lender
on the Merger Amendments Effective Date.
(b) The following defined terms in Section 1.01 of the Credit
Agreement are amended as follows:
(i) The definition of "LENDER ADDENDUM" is amended by adding
"or the Merger Amendments Effective Date" after "Restatement Date" in the
first and third lines thereof.
(ii) The definition of "TERM LOAN COMMITMENT" is deleted in
its entirety and replaced with the following:
"TERM LOAN COMMITMENT" shall mean, with respect to each
Lender, (i) the commitment, if any, of such Lender to make a Term
Loan hereunder on the Closing Date or the Restatement Date in the
amount set forth on Schedule I to the Lender Addendum executed and
delivered by such Lender on the Restatement Date, and (ii) such
Lender's Upsized Term Loan Commitment, if any. The aggregate amount
of the Lenders' Term Loan Commitments is $210.0 million.
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(c) Section 2.01(a) of the Credit Agreement is deleted in
its entirety and replaced with the following:
"(a)(i) each Term Loan Lender having a Term Loan Commitment as of
the Closing Date or the Restatement Date agrees, severally and not
jointly, to make Term Loans to Borrower on the Closing Date and the
Restatement Date in the principal amount not to exceed its Term Loan
Commitment as of the Closing Date or the Restatement Date, and (ii) each
Term Loan Lender having an Upsized Term Loan Commitment as of the Merger
Amendments Effective Date agrees, severally and not jointly, to make Term
Loans on the Merger Amendments Effective Date in the principal amount not
to exceed its Upsized Term Loan Commitment as of the Merger Amendments
Effective Date; and"
(d) Section 2.07(a) of the Credit Agreement is amended by replacing
the first sentence thereof with the following:
"The Term Loan Commitments (other than the Upsized Term Loan
Commitments) shall automatically terminate at 5:00 p.m., New York City
time, on the Restatement Date, and the Upsized Term Loan Commitments shall
automatically terminate at 5:00 p.m., New York City time, on the Merger
Amendments Effective Date."
(e) Section 3.12 of the Credit Agreement is amended by adding "and
the Merger Transactions" after "the Acquisition" in the second line thereof.
(f) Section 11.14 of the Credit Agreement is amended by adding "or
on the Merger Amendments Effective Date" after "on the date hereof" in the first
line thereof.
(g) Annex II to the Credit Agreement (Amortization Table) shall be
amended by replacing it in its entirety with a revised amortization table
reflecting the new Term Loans to be extended on the Merger Amendments Effective
Date; provided that such new amortization table is in form and substance
satisfactory to the Administrative Agent.
Section 2.06 Amendments Related to Real Estate Collateral.
(a) The definition of "MORTGAGED PROPERTY" is amended by changing
"5.15(a)" to "5.15" in the last line thereof.
(b) Section 5.15 of the Credit Agreement is amended by
adding the following at the end of such Section:
"(c) Execute and deliver the documents and complete the tasks set
forth on Schedule 5.15A, in each case within the time limits specified on
such Schedule."
(c) The Credit Agreement is amended by adding as Schedule 5.15A (New
Post Closing Real Estate Collateral Requirements) thereto the Schedule contained
in Annex I to this Second Amendment.
(d) Article VIII subsection (e) is amended by inserting the words
"or Schedule 5.15A" immediately after the words "Schedule 5.15" in line two
thereof.
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Section 2.07 Amendments Related to the IPO.
(a) The following term is added to Section 1.01 of the Credit
Agreement in its proper alphabetical order:
"SUCCESSFUL IPO" shall mean an IPO resulting in at least $250.0
million in gross cash proceeds to Holdings.
(b) Section 6.08 of the Credit Agreement is amended by (i) deleting
the word "and" at the end of clause (c) thereof; (ii) deleting the "." at the
end of clause (d) thereof and replacing it with "; and"; and (iii) inserting the
following new clause (e) immediately after clause (d) thereof:
"(e) after a Successful IPO, (i) payments to Holdings in an amount
not to exceed $40.0 million in any fiscal year and (ii) cash dividends by
Holdings to its shareholders with the proceeds of the funds received by it
pursuant to the foregoing subclause (i)."
(c) Limitation on Capital Expenditures. The table set forth
in Section 6.10(d) of the Credit Agreement is deleted in its entirety and
replaced with the following:
PRIOR TO A AFTER A SUCCESSFUL
---------- ------------------
PERIOD SUCCESSFUL IPO IPO
------ -------------- ---
AMOUNT (IN MILLIONS)
--------------------
January 1, 2005 - December 31, 2005 $155,000,000 $175,000,000
January 1, 2006 - December 31, 2006 $180,000,000 $200,000,000
January 1, 2007 - December 31, 2007 $255,000,000 $350,000,000
January 1, 2008 - December 31, 2008 $125,000,000 $315,000,000
January 1, 2009 - December 31, 2009 $75,000,000 $125,000,000
January 1, 2010 - Final Maturity Date $85,000,000 $125,000,000
(d) Section 11.02(e) of the Credit Agreement is amended by deleting
the proviso to the first sentence thereof in its entirety and replacing it with
the following:
"provided that the aggregate outstanding principal amount of (i) any
such new Term Loans and the new Term Loan Commitments of all Classes shall at no
time, without the
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consent of the Required Lenders, exceed $50.0 million, and (ii) any such new
Revolving Commitments shall at no time, without the consent of the Required
Lenders, exceed $190.0 million."
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.01 Conditions to Waiver, Consent and Certain Amendments. The
waiver and consent set forth in Article I and the effectiveness of the
amendments contained in Sections 2.01, 2.02 and 2.03 shall be subject to the
prior condition that the Arranger, the Administrative Agent and the
Documentation Agent shall have received all Fees and other amounts due and
payable on or prior to the Second 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
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.
Section 3.02 Conditions to Term Loans and Certain Amendments. The making
of the Term Loans on the Merger Amendments Effective Date and the effectiveness
of the amendments contained in Sections 2.04, 2.05 and 2.06 shall be subject to
the prior satisfaction of the conditions set forth in Section 3.01 and the
satisfaction prior to or concurrently with the consummation of the Merger
Transactions of each of the following conditions (with references to the
"Companies" and the "Loan Parties" being references thereto after giving effect
to the Merger Transactions unless otherwise specified):
(a) Loan Documents. All legal matters incident to this Second
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 Merger
Amendments Effective Date, including but not limited to, (i) this Second
Amendment, (ii) the consent of the Guarantors attached hereto as Exhibit A
executed by each of the Guarantors (including the persons becoming Guarantors on
the date hereof), (iii) the amendments, supplements and Joinder Agreements
required to be delivered for the persons becoming Guarantors (including
International Coal Group, Inc.) on the date hereof and (iv) a Perfection
Certificate Supplement dated the date hereof.
(b) Corporate Documents. The Administrative Agent shall have
received:
(i) a certificate of the secretary or assistant secretary of
each Loan Party dated the Merger Amendments Effective Date, certifying (A)
that attached thereto is a true and complete copy of each Organizational
Document of such Loan Party certified (to the extent applicable) as of a
recent date by the Secretary of State of the state of its organization or
stating that the there has been no change to the Organizational Documents
of such Loan Party since the Restatement Date, (B) that attached thereto
is a true and complete copy of resolutions duly adopted by the Board of
Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in
the case of Borrower, the borrowings to be made
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on the date hereof, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect and (C) as to the
incumbency and specimen signature of each officer executing any Loan
Document on the Merger Amendments Effective Date or any other document
delivered in connection herewith on behalf of such Loan Party (together
with a certificate of another officer certifying the incumbency and
specimen signature of the secretary or assistant secretary executing the
certificate in this clause (i)); and
(ii) a certificate as to the good standing of each Loan Party
(in so-called "long-form" if available) as of a recent date, from such
Secretary of State.
(c) Officers' Certificate. The Administrative Agent shall have
received a certificate, dated the Merger Amendments Effective Date and signed by
the vice president and the chief financial officer of Borrower, confirming
compliance with the conditions precedent set forth in this Section 3.02 hereof
and Sections 4.02(b), (c) and (d) of the Credit Agreement.
(d) Merger Transactions.
(i) The Lenders shall have been furnished true, correct and
complete copies of each Merger Document and be satisfied with the final
terms and conditions thereof.
(ii) The Merger Transactions shall have been consummated or
shall be consummated simultaneously on the Merger Amendments Effective
Date, in each case in accordance with the terms hereof and in accordance
in all material respects with the terms of the Merger Documents, without
the waiver or amendment of any such terms that the Administrative Agent
determines in its reasonable discretion has had or would reasonably be
expected to result in a Material Adverse Effect, unless approved by the
Arranger.
(iii) The Lenders shall be satisfied with the capitalization,
the terms and conditions of any equity arrangements and the corporate or
other organizational and management structure of the Companies.
(e) Financial Statements; Financial Condition; Reports.
(i) The Lenders shall have received and shall be satisfied with
(A) the financial statements included in the Registration Statement of the
Company on Form S-1 (File No. 333-124393), as declared effective by the
Securities and Exchange Commission and (B) the five-year forecasts of the
financial performance of Holdings and its Subsidiaries.
(ii) (A) Consolidated EBITDA for the most recent four
consecutive fiscal quarters of Holdings ending more than 30 days prior to
the Merger Amendments Effective Date shall not be less than $64.0 million
and (B) the Leverage Ratio as of the end of the most recent four
consecutive fiscal quarters of Holdings ending more than 30 days prior to
the Merger Amendments Effective Date shall not be greater than 2.40 to
1.00, in each case calculated on a Pro Forma Basis.
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(f) Opinions of Counsel. The Administrative Agent shall have
received, on behalf of itself, the other Agents, the Arranger, the Lenders and
the Issuing Bank, a favorable written opinion of (i) ▇▇▇▇▇ Day, special counsel
for the Loan Parties, and (ii) each local counsel relating to the Mortgaged
Property as of the Merger Amendments Effective Date, in each case (1)
satisfactory in form and substance to the Administrative Agent, (2) dated the
Merger Amendments Effective Date, (3) addressed to the Agents, the Issuing Bank
and the Lenders and (4) covering such other matters relating to the transactions
contemplated by this Second Amendment as the Administrative Agent shall
reasonably request.
(g) Solvency Certificate. The Administrative Agent shall have
received a solvency certificate in the form of Exhibit N to the Credit
Agreement, dated the Merger Amendments Effective Date and signed by the chief
financial officer of Borrower.
(h) Requirements of Law. The Lenders shall be satisfied that the
Companies and the transactions contemplated by this Second Amendment shall be in
compliance in all material respects with all applicable Requirements of Law,
including Regulations T, U and X of the Board and all applicable Environmental
Laws. The Lenders shall have received satisfactory evidence of such compliance
reasonably requested by them.
(i) Consents. The Lenders shall be satisfied that all governmental
and material third party approvals required in connection with the transactions
contemplated by this Second Amendment to be consummated on or before the Merger
Amendments Effective Date have been obtained, and there shall be no governmental
or judicial action, actual or threatened, that has or would have, singly or in
the aggregate, a reasonable likelihood of restraining, preventing or imposing
burdensome conditions on the transactions contemplated by this Second Amendment.
(j) Litigation. There shall be no litigation, public or private, or
administrative proceedings, governmental investigations or other legal or
regulatory developments, actual or threatened, that, singly or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect, or would
reasonably be expected to materially and adversely affect the ability of the
Companies to fully and timely perform their respective obligations under the
Transaction Documents, or the ability of the parties to consummate the
transactions contemplated by this Second Amendment.
(k) Fees. The Arranger, the Administrative Agent and the
Documentation Agent shall have received all Fees and other amounts due and
payable on or prior to the Merger Amendments 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
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.
(l) Personal Property Requirements. The Collateral Agent shall have
received:
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(i) all certificates, agreements or instruments representing
or evidencing the Securities Collateral of each person that becomes a
Subsidiary of the Borrower upon the consummation of the Merger
Transactions (each a "NEW GUARANTOR"), accompanied by instruments of
transfer and stock powers undated and endorsed in blank;
(ii) an amended and restated Intercompany Note executed by and
among the Companies, accompanied by instruments of transfer undated and
endorsed in blank;
(iii) all other certificates, agreements, including control
agreements, or instruments necessary to perfect on the Merger Amendments
Effective Date the Collateral Agent's security interest in all Chattel
Paper, all Instruments, all Deposit Accounts and all Investment Property
(as each such term is defined in the Security Agreement and to the extent
required by the Security Agreement) of each New Guarantor, in each case in
accordance with the Security Agreement;
(iv) UCC financing statements in appropriate form for filing
under the UCC, filings with the United States Patent and Trademark Office
and United States Copyright Office and such other documents under
applicable Requirements of Law in each jurisdiction as may be necessary or
appropriate or, in the opinion of the Collateral Agent, desirable to
perfect the Liens created, or purported to be created, by the Security
Documents with respect to the New Guarantors and, with respect to all UCC
financing statements required to be filed pursuant to the Loan Documents
with respect to the New Guarantors, evidence satisfactory to the
Administrative Agent that Borrower has retained, at its sole cost and
expense, a service provider acceptable to the Administrative Agent for the
tracking of all such financing statements and notification to the
Administrative Agent of, among other things, the upcoming lapse or
expiration thereof;
(v) certified copies of UCC, United States Patent and
Trademark Office and United States Copyright Office, tax and judgment lien
searches, bankruptcy and pending lawsuit searches or equivalent reports or
searches, each of a recent date listing all effective financing
statements, lien notices or comparable documents that name any Loan Party
as debtor and that are filed in those state and county jurisdictions in
which any property of any Loan Party is located and the state and county
jurisdictions in which any Loan Party is organized or maintains its
principal place of business and such other searches that the Collateral
Agent deems reasonably necessary or appropriate, none of which encumber
the Collateral covered or intended to be covered by the Security Documents
(other than Permitted Collateral Liens or any other Liens acceptable to
the Collateral Agent); and
(vi) evidence acceptable to the Collateral Agent of payment or
arrangements for payment by the New Guarantors of all applicable recording
taxes, fees, charges, costs and expenses required for the recording of the
Security Documents.
(m) Real Property Requirements. The Collateral Agent shall have
received:
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(i) evidence that with respect to each Mortgaged Property of
each Loan Party (other than the New Guarantors), each Company shall have
made all modifications, registrations and filings, to the extent required
by, and in accordance with, all Requirements of Law (the "Mortgage
Modifications") in order to maintain a perfected security interest in such
Mortgaged Property; and
(ii) local counsel opinions regarding the enforceability of
the Mortgage Modifications, in each case (A) dated the Merger Amendments
Effective Date (B) addressed to the Agents, the Issuing Bank and the
Lenders and (C) otherwise in form and substance reasonably acceptable to
Administrative Agent.
(n) Insurance. The Arranger shall be satisfied with the insurance
program covering the Companies' facilities. The Administrative Agent shall have
received a copy of, or a certificate as to coverage under, the insurance
policies required by Section 5.04 of the Credit Agreement and the applicable
provisions of the Security Documents, each of which shall be endorsed or
otherwise amended to include a "standard" or "New York" lender's loss payable or
mortgagee endorsement (as applicable) and shall name the Collateral Agent, on
behalf of the Secured Parties, as additional insured, in form and substance
satisfactory to the Administrative Agent.
(o) Representations and Warranties; No Default. (i) Each of the
representations and warranties contained in Article III of the Credit Agreement
(with references to the "Companies" and the "Loan Parties" being references
thereto after giving effect to the Merger Transactions unless otherwise
expressly stated) shall be true and correct in all material respects as of the
Merger Amendments Effective Date, except that any representation and warranty
that is qualified as to "Materiality" or "Material Adverse Effect" shall be true
and correct in all respects as of the Merger Amendments Effective Date, except
to the extent such representations and warranties expressly relate to an earlier
date, (ii) Except with respect to any Default intended to be cured by the
amendments set forth in Sections 2.04, 2.05 and 2.06, both before and after
giving effect to the making of the Term Loans on the Merger Amendments Effective
Date and the effectiveness of the amendments contained in Sections 2.04, 2.05
and 2.06. no event shall have occurred and be continuing that constitutes a
Default or an Event of Default.
Section 3.03 Conditions to Effectiveness of Amendments Related to IPO.
The effectiveness of the amendments contained in Section 2.07 shall
be subject to (i) the prior satisfaction of each of the conditions set forth in
Section 3.02 as of the Merger Amendments Effective Date and (ii) the
consummation of an IPO resulting in at least $250.0 million in gross cash
proceeds to Holdings.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 Holdings.
Effective as of the Merger Amendments Effective Date, International
Coal Group, Inc. hereby replaces ICG, Inc. as "Holdings" under the Credit
Agreement. ICG, Inc. hereby
12
assigns to International Coal Group, Inc., and International Coal Group, Inc.
hereby assumes from ICG, Inc., all rights and obligations of ICG, Inc. as
"Holdings" under the Credit Agreement.
Section 4.02 Execution of this Second Amendment; Authorization.
This Second Amendment is executed and shall be construed as an
amendment to the Credit Agreement and forms a part of the Credit Agreement to
the extent applicable thereto. By its signature below, each of the undersigned
Required Lenders hereby authorizes and directs the Administrative Agent to
execute this Second Amendment.
Section 4.03 Representations and Warranties.
Holdings and Borrower hereby represent and warrant to the
Administrative Agent and the Lenders that, as of the date hereof:
(a) Authority; Enforceability. (i) All consents, approvals and
authorizations necessary for Holdings' and Borrower's execution, delivery and
performance of this Second Amendment have been obtained or made and (ii) this
Second Amendment has been duly executed and delivered by Holdings and Borrower
and constitutes a legal, valid and binding obligation of Holdings and Borrower,
enforceable against Holdings and Borrower in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law
(b) No Conflict. Neither the execution and delivery of this Second
Amendment or any other agreement or instrument contemplated hereby nor the
performance of, and compliance with the terms and provisions of, this Second
Amendment or any such other agreement or instrument by any Loan Party will, at
the time of such performance, (i) violate or conflict with any provision of such
Loan Party's articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Loan Party, (ii) violate,
contravene or materially conflict with any Requirements of Law or any other law,
regulation, order, writ, judgment, injunction, decree or permit applicable to
such Loan Party, except for any violation, contravention or conflict which would
not reasonably be expected to have a Material Adverse Effect, (iii) (A) violate,
contravene or conflict with the contractual provisions of, or cause an event of
default under, any Loan Document or (B) violate, contravene or conflict with the
contractual provisions of, or cause an event of default under any other loan
agreement, indenture, mortgage, deed of trust, contract or other agreement or
instrument to which such Loan Party is a party or by which such Loan Party may
be bound, except for any violation, contravention, conflict or default that
would not reasonably be expected to have a Material Adverse Effect, or (iv)
result in or require the creation of any Lien (other than those contemplated in
or created in connection with the Loan Documents) upon or with respect to such
Loan Party's properties. No consent or authorization of, filing with, notice to
or other act by or in respect of, any Governmental Authority or any other person
is required in connection with the performance of and compliance with the terms
and provisions of this Second Amendment or any other agreement or instrument
contemplated hereby.
13
(c) Representations and Warranties in Credit Agreement. Each of the
representations and warranties contained in Article III of the Credit Agreement
(with references to the "Companies" and the "Loan Parties" being references
thereto after giving effect to the Merger Transactions unless otherwise
expressly stated) is true and correct in all material respects, except that any
representation and warranty that is qualified as to "Materiality" or "Material
Adverse Effect" shall be true and correct in all respects as of the date hereof,
except to the extent such representations and warranties expressly relate to an
earlier date.
(d) No Default. Except with respect to any Default intended to be
cured by the amendments contained in this Second Amendment, both before and
after giving effect to this Second Amendment, no event has occurred and is
continuing that constitutes a Default or an Event of Default.
Section 4.04 No Waiver.
Except as specifically modified pursuant to the terms of this Second
Amendment, the terms and conditions of the Credit Agreement and the other Loan
Documents remain in full force and effect. Nothing herein shall limit in any way
the rights and remedies of the Administrative Agent and the Lenders under the
Credit Agreement and the other Loan Documents. The execution and delivery by the
Lenders of this Second Amendment shall not constitute a waiver, forbearance or
other indulgence with respect to any Default or Event of Default now existing or
hereafter arising.
Section 4.05 Counterparts; Integration; Effectiveness.
This Second Amendment may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Second Amendment and any agreements referred to herein
constitute the entire contract among the parties hereto relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. This Second Amendment
shall become effective when it shall have been executed by each of Borrower and
each of the Required Lenders, and thereafter shall be binding upon and inure to
the benefit of the parties to the Credit Agreement and, subject to and in
accordance with Section 11.04 of the Credit Agreement, their respective
successors and assigns; provided that the effectiveness of the consent, waiver
and amendments contained herein is conditioned upon the satisfaction of the
applicable conditions set forth in Article III. Delivery of an executed
counterpart of a signature page of this Second Amendment by telecopy shall be as
effective as delivery of a manually executed counterpart of this Second
Amendment.
Section 4.06 Severability.
Any provision of this Second Amendment held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality or enforceability of the remaining
provisions hereof, and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
14
Section 4.07 Governing Law.
This SECOND Amendment shall be construed in accordance with and
governed by the law of the State of New York, without regard to conflicts of law
principles that would require the application of the laws of another
jurisdiction.
Section 4.08 Headings.
Article and Section headings used herein are for convenience of
reference only, are not part of this Second Amendment and shall not affect the
construction of, or be taken into consideration in interpreting, this Second
Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their respective authorized officers as
of the day and year first above written.
ICG, LLC,
as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG, Inc.,
as Holdings prior to the Second Amendment
Effective Date
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
International Coal Group, Inc.,
as Holdings after the Second Amendment
Effective Date
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
UBS AG, STAMFORD BRANCH,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
----------------------------------
Title: Director, Banking Products
Services, US
----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Associate Director,
Banking Products Services, US
----------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT]
----------------------,
[NAME OF INSTITUTION]
as Lender
By:
-----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT]
EXHIBIT A
CONSENT OF GUARANTORS
Each of the undersigned is a Guarantor of the Obligations of
Borrower under the Credit Agreement and hereby (a) consents to the foregoing
Second Amendment, (b) acknowledges that notwithstanding the execution and
delivery of the foregoing Second Amendment, the obligations of each of the
undersigned Guarantors are not impaired or affected and all guaranties given to
the holders of Obligations and all Liens granted as security for the Obligations
continue in full force and effect, and (c) confirms and ratifies its obligations
under the Credit Agreement and each other Loan Document executed by it.
Capitalized terms used herein without definition shall have the meanings given
to such terms in the Second Amendment to which this Consent is attached or in
the Credit Agreement referred to therein, as applicable.
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this Consent of Guarantors as of June 29, 2005.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
INTERNATIONAL COAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG NATURAL RESOURCES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG ADDCAR SYSTEMS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG EAST KENTUCKY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG ILLINOIS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President/Treasurer/Secretary
-------------------------------
ICG EASTERN, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President/Treasurer/Secretary
-------------------------------
ICG HAZARD, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG ▇▇▇▇▇ COUNTY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG EASTERN LAND, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ICG HAZARD LAND, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer/Secretary
----------------------------------
ANNEX I
SCHEDULE 5.15A - NEW POST-CLOSING REAL ESTATE COLLATERAL REQUIREMENTS
See attached.