[EXECUTION COPY]
Exhibit 10.5
FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH AMENDMENT, dated as of March 28, 2005 (this "Fourth
Amendment"), to the Credit Agreement, dated as of May 28, 2004 (as amended by
the First Amendment, dated as of August 6, 2004, as further amended by the
Second Amendment and Waiver, dated as of December 28, 2004, as further amended
by the Third Amendment, dated as of January 25, 2005, and as otherwise amended,
supplemented or modified from time to time, the "Credit Agreement"), among ANR
HOLDINGS, LLC, a Delaware limited liability company ("LLC Holdings"), ALPHA
NATURAL RESOURCES, LLC, a Delaware limited liability company (the "Borrower"),
the LENDERS from time to time party thereto, CITICORP NORTH AMERICA, INC., as
administrative agent (in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent"), CREDIT SUISSE FIRST
BOSTON, acting through its Cayman Islands Branch, as syndication agent (in such
capacity, the "Syndication Agent"), UBS SECURITIES LLC, as documentation agent
(in such capacity, the "Documentation Agent"), CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch, UBS SECURITIES LLC and CITIGROUP
GLOBAL MARKETS INC., as joint lead arrangers (in such capacities, collectively,
the "Arrangers"), and CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch, and UBS SECURITIES LLC, as joint bookrunners (in such
capacities, collectively, the "Bookrunners").
W I T N E S S E T H:
WHEREAS, LLC Holdings, the Borrower and the Administrative Agent,
among others, are parties to the Credit Agreement;
WHEREAS, LLC Holdings and the Borrower have requested that the
Lenders agree to amend certain provisions of the Credit Agreement as set forth
in this Fourth Amendment;
WHEREAS, the Lenders whose signatures appear below, constituting at
least the Required Lenders, are willing to amend the Credit Agreement on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises contained herein, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Amendment to Section 1.01 (Defined Terms). Section 1.01 of the
Credit Agreement is hereby amended by adding the following defined term in the
proper alphabetical order:
"Fund IX Holdings" shall mean ANR Fund IX Holdings, L.P.
3. Amendment to Section 5.04 (Financial Statements, Reports, etc.).
Section 5.04 of the Credit Agreement is hereby amended by deleting the semicolon
at the end of clause (a) and inserting "." in lieu thereof and adding the
following new sentence at the end thereof:
"Notwithstanding the foregoing, the financial statements to be
delivered for the year ended December 31, 2004 shall be the combined financial
statements of Fund IX Holdings and Alpha NR Holding and Subsidiaries;"
4. Amendment to Section 6.01 (Indebtedness). Section 6.01(f) of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"(f) Indebtedness of the Borrower under the Senior Notes and
Indebtedness of Holdings and the Subsidiary Guarantors under any Guarantees in
respect of the Senior Notes and any Permitted Refinancing Indebtedness in
respect of any such Indebtedness;"
5. Amendment to Section 6.09 (Other Indebtedness and Agreements).
Section 6.09(a) of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"(a) Permit any waiver, supplement, modification, amendment,
termination or release of any indenture, instrument or agreement pursuant to
which any Material Indebtedness of Holdings, the Borrower or any of the
Subsidiaries is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release would materially increase the
obligations of the obligor (excluding increases in the amount of such
Indebtedness to the extent permitted to be incurred pursuant to Section 6.01) or
confer additional material rights on the holder of such Indebtedness in a manner
adverse to Holdings, the Borrower, any of the Subsidiaries or the Lenders (other
than by virtue of the Guarantees given by Holdings in respect of the Senior
Notes). Permit any waiver, supplement, modification or amendment of any of the
documentation governing, evidencing or otherwise relating to Alpha Terminal
Company, LLC's partnership interest in Dominion Terminal Associates if the
effect of such waiver, supplement, modification or amendment would materially
increase the obligations of Alpha Terminal Company, LLC or any of its Affiliates
with respect thereto."
6. Representations and Warranties. In order to induce the other
parties hereto to enter into this Fourth Amendment, LLC Holdings and the
Borrower represent and warrant to each other party hereto that, after giving
effect to this Fourth Amendment, (a) the representations and warranties set
forth in each of the Loan Documents shall be true and correct in all material
respects on and as of the date hereof with the same effect as though made on and
as of such date, except to the extent such representations and warranties relate
to an earlier date, in which case such representations and warranties shall be
true and correct in all material respects on and as of such earlier date;
provided that the references to the Credit Agreement in such representations and
warranties shall be deemed to refer to the Credit Agreement as amended pursuant
to this Fourth Amendment and (b) no Event of Default or Default shall have
occurred and be continuing.
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7. Conditions to Effectiveness of this Fourth Amendment. This Fourth
Amendment shall become effective on the date (the "Fourth Amendment Effective
Date") on which:
(a) the Administrative Agent shall have received duly executed and
delivered counterparts of this Fourth Amendment that, when taken together, bear
the signatures of LLC Holdings, the Borrower and the Required Lenders;
(b) the Borrower shall have paid to the Administrative Agent all
outstanding fees, costs and expenses owing to the Administrative Agent as of
such date; and
(c) the Administrative Agent shall have received such additional
documentation as the Administrative Agent may reasonably require.
8. Continuing Effect; No Other Amendments. Except as expressly set
forth in this Fourth Amendment, all of the terms and provisions of the Credit
Agreement are and shall remain in full force and effect and each of LLC Holdings
and the Borrower shall continue to be bound by all of such terms and provisions.
The amendments provided for herein are limited to the specific subsections of
the Credit Agreement specified herein and shall not constitute an amendment of,
or an indication of the Administrative Agent's or the Lenders' willingness to
amend or waive, any other provisions of the Credit Agreement or the same
subsections for any other date or purpose. This Fourth Amendment shall
constitute a Loan Document.
9. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution and
delivery of this Fourth Amendment, and any other documents prepared in
connection herewith, and the transactions contemplated hereby, including,
without limitation, reasonable fees and disbursements and other charges of
counsel to the Administrative Agent and the charges of IntraLinks.
10. Counterparts. This Fourth Amendment may be executed by one or
more of the parties to this Fourth Amendment on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page
of this Fourth Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of this
Fourth Amendment signed by all the parties shall be lodged with the Borrower and
the Administrative Agent. The execution and delivery of this Fourth Amendment by
the Borrower, the Lenders party hereto and the Administrative Agent shall be
binding upon the Loan Parties, the Lenders, the Agents and all future holders of
the Loans.
11. Effect of Amendment. On the Fourth Amendment Effective Date, the
Credit Agreement shall be amended as provided herein. The parties hereto
acknowledge and agree that (a) this Fourth Amendment and any other Loan
Documents executed and delivered in connection herewith do not constitute a
novation or termination of the "Obligations" under the Credit Agreement as in
effect prior to the Fourth Amendment Effective Date; (b) such "Obligations" are
in all respects continuing (as amended hereby) with only the terms thereof being
modified to the extent provided in this Fourth Amendment; and (c) the Liens and
security
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interests as granted under the Security Documents securing payment of such
"Obligations" are in all respects continuing and in full force and effect and
secure the payment of the "Obligations".
12. GOVERNING LAW. THIS FOURTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[Signature Pages Follow]
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[EXECUTION COPY]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
ANR HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ALPHA NATURAL RESOURCES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as a Lender,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE TO FOURTH AMENDMENT DATED AS OF MARCH 28, 2005, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS AMENDED
To Approve the Fourth Amendment:
Name of Institution: Credit Suisse First Boston
Acting through its Cayman Islands Branch
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Associate
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SIGNATURE PAGE TO FOURTH AMENDMENT DATED AS OF MARCH 28, 2005, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS AMENDED
To Approve the Fourth Amendment: LOAN FUNDING VII LLC
By: Highland Capital Management, L.P.
as Collateral Manager
Name of Institution:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
Highland Capital Management, L.P.
SIGNATURE PAGE TO FOURTH AMENDMENT DATED AS OF MARCH 28, 2005, TO THE ALPHA
NATURAL RESOURCES, LLC CREDIT AGREEMENT DATED AS OF MAY 28, 2004, AS AMENDED
To Approve the Fourth Amendment: LOAN FUNDING IV, LLC
By: Highland Capital Management, L.P.
As Portfolio Manager
Name of Institution:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
Highland Capital Management, L.P.