exhibit101.htm


Exhibit 10.1




 


 


AMENDMENT NO. 1


 


TO


 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT


 


This Amendment No. 1 to Third Amended and Restated Credit Agreement, dated as of June 26, 2012 (this “Amendment”), is entered into among ALPHA NATURAL RESOURCES, INC., a Delaware corporation (“Borrower”), the Lenders party hereto and Citicorp North America, Inc., a Delaware corporation, in its capacity as administrative agent for the Lenders and as agent for the Secured Parties (in such capacity, the “Administrative Agent”), and amends the Third Amended and Restated Credit Agreement dated as of May 19, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) entered into among the Borrower, the institutions from time to time party thereto as Lenders (the “Lenders”), the Administrative Agent, Bank of America, N.A., JPMorgan Chase Bank, N.A., PNC Bank, National Association, The Royal Bank of Scotland PLC and Union Bank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, LTD., as Co-Documentation Agents and Morgan Stanley Senior Funding, Inc. as Sole Syndication Agent, and Citigroup Global Markets Inc. and Morgan Stanley Senior Funding, Inc., as Joint Lead Arrangers.  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.


 


W I T N E S S E T H:


 


WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement to effect the changes below;


 


WHEREAS, the Borrower and Lenders wish to make certain other amendments set forth in Section 1 below;


 


NOW, THEREFORE, in consideration of these premises and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as follows:


 




  





  











  




 




Section 1. Amendments to the Credit Agreement


 



(a) Section 1.01 of the Credit Agreement is amended by (i) deleting the definition of “Applicable Margin” and replacing it in its entirety with the following:


 










““Applicable Margin” shall mean (i) for any day with respect to any ABR Loan, the applicable margin per annum set forth below under the caption “ABR Spread” based upon the Leverage Ratio as of the most recent determination date, (ii) for any day with respect to any Eurocurrency Loan, the applicable margin per annum set forth below the caption “Eurocurrency Spread” based upon the Leverage Ratio as of the most recent determination date and (iii) for any day with respect to any Commitment Fee, the fee per annum set forth below the caption “Commitment Fee” based upon the Leverage Ratio as of the most recent determination date.


 










	
Leverage Ratio:

	
ABR Spread

	
Eurocurrency Spread

	
Commitment Fee


	
Category 1


Greater than 3.75 to 1.00

	
2.00%

	
3.00%

	
0.50%


	
Category 2


Equal to or less than 3.75 to 1.00 but equal to or greater than 2.00 to 1.00

	
1.50%

	
2.50%

	
0.50%


	
Category 3


Less than 2.00 to 1.00 but equal to or greater than 1.50 to 1.00

	
1.25%

	
2.25%

	
0.50%


	
Category 4


Less than 1.50 to 1.00

	
1.00%

	
2.00%

	
0.375%












 


For purposes of the foregoing, (1) the Leverage Ratio shall be determined as of the end of each fiscal quarter of the Borrower’s fiscal year based upon the consolidated financial information of the Borrower and its Restricted Subsidiaries delivered pursuant to Section 5.04(a) or (b) and (2) each change in the Applicable Margin resulting from a change in the Leverage Ratio shall be effective during the period commencing on and including the first Business Day after the date of delivery to the Administrative Agent of such consolidated financial information indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the Leverage Ratio shall be deemed to be in Category 1 for purposes of this definition at the option of the Administrative Agent or the Required Lenders at any time during which the Borrower fails to deliver the consolidated financial information when required to be delivered pursuant to Section 5.04(a) or (b), during the period from the expiration of the time for delivery thereof until such consolidated financial information is delivered.”


 




  





  











  






 


(b) Section 1.01 of the Credit Agreement is amended by (i) deleting the definition of “Consolidated Net Debt” and replacing it in its entirety with the following:


 


““Consolidated Net Debt” as of any date shall mean (without duplication) (i) the aggregate amount of all Indebtedness of the Borrower and its Restricted Subsidiaries specified in clauses (a), (b), (c) and (e) of the definition of Indebtedness (so long as, in the case of clause (e), such Guarantees are full and unconditional and such Guarantees are of Indebtedness of Unrestricted Subsidiaries or Minority Ventures specified in clauses (a), (b) and (c) of the definition of Indebtedness), plus (ii) any Receivables Net Investment of the Borrower and its Restricted Subsidiaries, minus (iii) the aggregate amount of unrestricted cash, cash equivalents and Permitted Investments of the Borrower and its Restricted Subsidiaries; provided that, for the purposes of the definition of Consolidated Senior Secured Debt, the aggregate amount of unrestricted cash, cash equivalents and Permitted Investments that reduces clauses (i) and (ii) above shall not exceed $500 million.”


 


(c) Section 1.01 of the Credit Agreement is amended by (i) replacing the period at the end of the definition of “Equity Interests” with “;” and (ii) adding the following proviso at the end of such definition:


 


“provided that, for the avoidance of doubt, "Equity Interests" shall not include convertible notes.”


 


(d) Section 1.01 is amended by deleting the words “or directly and fully guaranteed or insured” and “(provided that the full faith and credit of the United States is pledged in support of those securities)” in clause (b) of the definition of “Permitted Investments”.


 


(e) Section 1.01 is amended by deleting the words “Sections 6.10 and 6.11” in clause (e) of the definition of “Permitted Notes” and inserting the words “Sections 6.10, 6.11 and 6.15, as applicable” in lieu thereof.


 


(f) Section 1.01 is amended by inserting the words “other than in the case of a refinancing of the Massey 3.25% Convertible Notes,” at the beginning of clause (d) of the definition of “Permitted Refinancing Indebtedness”.


 


(g) Section 1.01 is amended by deleting the words “, all determined on a consolidated basis in accordance with GAAP” in the definition of “Senior Secured Leverage Ratio”.


 




  





  











  






 


(h) Section 1.01 is further amended by inserting the following new definitions in the appropriate alphabetic order:


 


““Amendment No. 1 Material Real Property” shall mean (i) any real property owned  in fee by any Loan Party as of the Amendment No. 1 Effective Date that (x) is not a Mortgaged Property as of such date, (y)  has a net book value  as of March 31, 2012 in excess of $10 million and (z) is not a Massey Principal Property and (ii) any real property in which a Loan Party  has a leasehold interest as of the Amendment No. 1 Effective Date that (x) is not a Mortgaged Property as of such date, (y) has annual minimum  royalties, rents or any similar payment obligations in excess of $1 million in the most recently  ended fiscal year and (z) is not a Massey Principal Property; provided that, Amendment No. 1 Material Real Property shall not include Excluded Assets.”


 


““Consolidated Debt” as of any date shall mean (without duplication) (i) the aggregate amount of all Indebtedness of the Borrower and its Restricted Subsidiaries specified in clauses (a), (b), (c) and (e) of the definition of Indebtedness (so long as, in the case of clause (e), such Guarantees are full and unconditional and such Guarantees are of Indebtedness of Unrestricted Subsidiaries or Minority Ventures specified in clauses (a), (b) and (c) of the definition of Indebtedness), plus (ii) any Receivables Net Investment of the Borrower and its Restricted Subsidiaries.”


 


““Consolidated Gross Senior Secured Debt” shall mean, as of any date of determination, the aggregate principal amount of Consolidated Debt that is not Subordinated Indebtedness on such date and that is secured by a Lien.”


 


““Consolidated Liquidity” means, for the Borrower and its Restricted Subsidiaries on a consolidated basis, the sum of (x) all unrestricted cash, cash equivalents and Permitted Investments, (y) the aggregate Available Unused Commitments (assuming for such purpose, that the Borrower would be permitted to immediately incur such Available Unused Commitments) and (z) the unused availability under any Permitted Receivables Financing.”


 


““Gross Senior Secured Leverage Ratio” shall mean, on any date, the ratio of (a) Consolidated Gross Senior Secured Debt as of such date to (b) EBITDA for the period of four consecutive fiscal quarters of the Borrower most recently ended as of such date; provided that, to the extent any Asset Disposition or any Asset Acquisition (or any similar transaction or transactions that require a waiver or a consent of the Required Lenders pursuant to Section 6.04 or 6.05) or incurrence or repayment of Indebtedness (excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes) has occurred during the relevant Test Period, EBITDA shall be determined for the respective Test Period on a Pro Forma Basis for such occurrences.”


 


(i) Subsection 2.20(a)(ii) shall be amended by deleting the words “Sections 6.10 and 6.11” and inserting the words “Sections 6.10, 6.11 and 6.15, as applicable” in lieu thereof.


 




  





  











  






 


(j) Subsection 2.20(a)(iii) shall be amended by deleting it in its entirety and replacing it with the following


 


“(iii)           The sum of the outstanding Additional Revolving Facility Commitments and the principal amount outstanding of Additional Term Loans, when aggregated with the principal amount outstanding of Permitted Notes, shall not exceed $500 million; provided that this limitation shall be increased by (x) $750 million if, at the time of such increase, after giving effect on a Pro Forma Basis to Additional Revolving Facility Commitments as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), and to the incurrence of Additional Term Loans and Permitted Notes as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 2.00 to 1.00 and (y) an additional $750 million if, at the time of such increase, after giving effect on a Pro Forma Basis to Additional Revolving Facility Commitments as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), and to the incurrence of Additional Term Loans and Permitted Notes as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 1.00 to 1.00.


 


(k) Subsection 2.20(a)(iv) shall be amended by deleting the second sentence thereof in its entirety and replacing it with the following:


 


“In the event that the all-in-yield for any Additional Term Loans in excess of the initial $500 million in Additional Term Loans is greater than the all-in-yield for the Term Loans (or other term loan previously established as an Additional Term Loan hereunder), then the all-in-yield for the Term Loans (or other term loan previously established as an Additional Term Loan hereunder) will be increased such that after giving effect thereto the all-in-yield for the Term Loans (or other term loan established as an Additional Term Loan hereunder) is equal to the all-in-yield for the Additional Term Loans.”


 


(l) Subsection 5.04(c) shall be amended by deleting the words “Sections 6.10 and 6.11” and inserting the words “Sections 6.10, 6.11 and 6.15, as applicable” in lieu thereof in both clause (x) and (y).


 


(m) Subsection 5.13(a)(ii) shall be amended by deleting the words “Sections 6.10 and 6.11” and inserting the words “Sections 6.10, 6.11 and 6.15, as applicable” in lieu thereof.


 


(n) Subsection 6.01(c) shall be amended by deleting the words “Sections 6.10 and 6.11” and inserting the words “Sections 6.10, 6.11 and 6.15, as applicable” in lieu thereof.


 


(o) Subsection 6.02(b) shall be amended by deleting the words “Sections 6.10 and 6.11” and inserting the words “Sections 6.10, 6.11 and 6.15, as applicable” in lieu thereof.


 


(p) Subsection 6.02(d) shall be amended by deleting the words “(other than the Massey 3.25% Convertible Notes)”.


 




  





  











  






 


(q) Subsection 6.02(f) shall be amended by deleting it in its entirety and replacing it with the following:


 


“(f)           (i)  Permitted Notes in an aggregate principal amount, when aggregated with the amount of Additional Term Loans and Additional Revolving Facility Commitments outstanding pursuant to Section 2.20, not to exceed $500 million; provided that this limitation shall be increased by (x) $750 million if, at the time of such incurrence, after giving effect on a Pro Forma Basis to such incurrence and to the incurrence of any Additional Term Loans and any Additional Revolving Facility Commitments (as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b)) as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 2.00 to 1.00 and (y) an additional $750 million if, at the time of such incurrence, after giving effect on a Pro Forma Basis to such incurrence and to the incurrence of any Additional Term Loans and any Additional Revolving Facility Commitments (as if they were fully drawn on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b)) as if such incurrence had occurred on such day, the Gross Senior Secured Leverage Ratio shall not be in excess of 1.00 to 1.00; provided further that the full amount of Indebtedness incurred pursuant to this clause (i) would have been permitted to be incurred under Section 2.20; (ii) Permitted Notes in excess of the amount permitted under the foregoing clause (i), the Net Cash Proceeds of which are applied to the permanent repayment of Term Loans pursuant to Section 2.11; and (iii) in the case of Permitted Notes incurred under any of the foregoing clauses (i) and (ii), Permitted Refinancing Indebtedness in respect thereof;


 


(r) Subsection 6.06(a)(B) shall be amended by deleting it in its entirety and replacing it with the following:


 


“(B)           after giving effect to such Restricted Payment on a Pro Forma Basis as if such Restricted Payment had occurred on the first day of the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.04(a) or (b), the Borrower shall be in compliance with Sections 6.10, 6.11 and 6.15, as applicable; and”


 




  





  











  






 


(s) Section 6.10 shall be amended by deleting it in its entirety and replacing it with the following:


 


“Permit the Interest Coverage Ratio as of the last day of any fiscal quarter of the Borrower ending on the dates set forth below to be less than the ratio corresponding to such fiscal quarter:


 



	
Fiscal Quarter Ending

	
Minimum Interest


Coverage Ratio


	
June 30, 2012

	
2.50:1.00


	
September 30, 2012

	
2.50:1.00


	
December 31, 2012

	
2.25:1.00


	
March 31, 2013

	
2.00:1.00


	
June 30, 2013

	
2.25:1.00


	
September 30, 2013

	
2.25:1.00


	
December 31, 2013

	
2.25:1.00


	
March 31, 2014 and thereafter

	
2.50:1.00












 




  





  











  






 


(t) Section 6.11 shall be amended by deleting it in its entirety and replacing it with the following:


 


“(a) Senior Secured Leverage Ratio.  Permit the Senior Secured Leverage Ratio as of the last day of any fiscal quarter of the Borrower ending on the dates set forth below to be greater than the ratio corresponding to such fiscal quarter:


 



	
Fiscal Quarter Ending

	
Senior Secured


Leverage Ratio


	
June 30, 2012

	
2.50:1.00


	
September 30, 2012

	
2.50:1.00


	
December 31, 2012

	
2.50:1.00


	
March 31, 2013

	
2.50:1.00


	
June 30, 2013

	
2.50:1.00


	
September 30, 2013

	
2.50:1.00


	
December 31, 2013

	
2.50:1.00


	
March 31, 2014

	
2.50:1.00


	
June 30, 2014

	
2.50:1.00


	
September 30, 2014

	
2.50:1.00


	
December 31, 2014

	
2.50:1.00







 


 




  





  











  






 


(b) Leverage Ratio.  Permit the Leverage Ratio as of the last day of any fiscal quarter of the Borrower ending on the dates set forth below to be greater than the ratio corresponding to such fiscal quarter:


 



	
Fiscal Quarter Ending

	
Leverage Ratio


	
March 31, 2015

	
4.25:1.00


	
June 30, 2015

	
4.00:1.00


	
September 30, 2015 and thereafter

	
3.75:1.00












 


(u) Article VI shall be amended by inserting the following new Section 6.15 thereto:


 


“Minimum Liquidity.  Permit the Consolidated Liquidity as of the end of any fiscal quarter of the Borrower beginning with the fiscal quarter ending June 30, 2012 through and including the fiscal quarter ending December 31, 2014, to be less than $500 million.”


 




  





  











  






 


Section 2. Conditions Precedent to the Effectiveness of this Amendment


 


This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied or waived (the “Amendment No. 1 Effective Date”) by the Administrative Agent:


 


(a)           Executed Counterparts.  The Administrative Agent shall have received this Amendment, duly executed by the Borrower, the Subsidiary Guarantors, the Administrative Agent, the Collateral Agent and the Required Lenders;


 


(b)           Lender Fees.  All Lenders who have executed this Amendment prior to 5:00 P.M. New York City time on June 25, 2012 shall have received a fee equal to 0.25% of their outstanding Revolving Facility Commitments and Term Loans.


 


(c)           Reimbursement of Expenses.  The Borrower shall have paid to the Administrative Agent all reasonable out-of-pocket expenses incurred by the Administrative Agent and invoiced to the Borrower prior to the Amendment No. 1 Effective Date in connection with the preparation, reproduction, execution and delivery of this Amendment (including, without limitation the reasonable fees, charges and disbursements of Cahill Gordon & Reindel llp, special counsel to the Administrative Agent);


 


(d)           Representations and Warranties.  The representations and warranties set forth in Section 3 of this Amendment shall be true and correct and the Administrative Agent shall have received a certificate to that effect from a Responsible Officer of the Borrower;


 


(e)           Opinions of Counsel.  The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Amendment No. 1 Effective Date, a favorable written opinion of Cleary Gottlieb Steen and Hamilton LLP, special counsel for the Borrower addressed to the Administrative Agent, the Collateral Agent, each Issuing Bank and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent; and


 


(f)           Flood Insurance.  The Administrative Agent shall have a received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each property subject to an Existing Mortgage on which a “Building” (as defined in 12 CFR Chapter III, Section 339.2) is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto) and, if any portion of such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance to the extent required pursuant to Section 5.02(c) of the Credit Agreement.


 




  





  











  






 


Section 3. Representations and Warranties


 


On and as of the Amendment No. 1 Effective Date, after giving effect to this Amendment, the Borrower hereby represents and warrants to the Administrative Agent and each Lender as follows:


 


(a) this Amendment has been duly authorized, executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with its terms, and the Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, in each case, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing;


 


(b) each of the representations and warranties contained in Article III (Representations and Warranties) of the Credit Agreement and each other Loan Document is true and correct in all material respects on and as of the Amendment No. 1 Effective Date, as if made on and as of such date, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, however, that references therein to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended hereby and after giving effect to the consents and waivers set forth herein; and


 


(c) no Default or Event of Default has occurred and is continuing.


 




  





  











  






 


Section 4. Post Closing Matters


 


Within ninety (90) days of the Amendment No. 1 Effective Date, Borrower shall, and shall cause the applicable Loan Parties to, deliver a supplement to the Perfection Certificate updating the real property schedules in form and substance reasonably satisfactory to the Collateral Agent and, within one hundred eighty (180) days of the Amendment No. 1 Effective Date, Borrower shall, and shall cause the applicable Loan Parties to, take all actions required by Section 5.10(b) of the Credit Agreement with respect to each real property that falls within the definition of Amendment No. 1 Material Real Property, as if Amendment No. 1 Material Real Property had been acquired after the Third Amendment Effective Date and as if Section 5.10(b) were applicable by its terms to Amendment No. 1 Material Real Property.  In addition, on such date as, pursuant to Section 5.10(c), the requirements of Section 5.10(b) become applicable to Massey Principal Property, Borrower shall, and shall cause the applicable Loan Parties to, take all actions required by Section 5.10(c) of the Credit Agreement with respect to each Massey Principal Property that falls within the definition of Amendment No. 1 Material Real Property, as if Amendment No.1 Material Real Property had been acquired on such date.


 


Section 5. Fees and Expenses


 


The Borrower and each other Loan Party agrees to pay on demand in accordance with the terms of Section 9.05 (Expenses; Indemnity) of the Credit Agreement all reasonable out-of-pocket expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).


 




  





  











  






 


Section 6. Reference to the Effect on the Loan Documents


 


(a) As of the Amendment No. 1 Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Loan Documents to the Credit Agreement (including, without limitation, by means of words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument.  Each of the table of contents and lists of Exhibits and Schedules of the Credit Agreement shall be amended to reflect the changes made in this Amendment as of the Amendment No. 1 Effective Date.


 


(b) Except as expressly amended hereby, all of the terms and provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed.


 


(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Borrower or the Administrative Agent under any of the Loan Documents, nor constitute a waiver or amendment of any other provision of any of the Loan Documents or for any purpose except as expressly set forth herein.


 


(d) This Amendment is a Loan Document.


 




  





  











  






 


Section 7. Execution in Counterparts


 


This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document.  Delivery of an executed counterpart by telecopy shall be effective as delivery of a manually executed counterpart of this Amendment.


 


Section 8. Affirmation of Guarantee and Collateral Agreement and Other Obligations


 


Each Loan Party (other than the Borrower) hereby consents to the amendments to the Credit Agreement effected hereby, and hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment, the obligations of such Loan Party contained in the Guarantee and Collateral Agreement, or in any other Loan Documents to which it is a party are, and shall remain, in full force and effect and are hereby ratified and confirmed in all respects and the Collateral and the Loan Documents shall continue to secure, guarantee, support and otherwise benefit the Obligations and the of the Borrower and the other Loan Parties under this Agreement and the other Loan Documents.


 


Section 9. Governing Law


 


This Amendment shall be construed in accordance with and governed by the laws of the State of New York.


 




  





  











  






 


Section 10. Section Titles


 


The section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto, except when used to reference a section.  Any reference to the number of a clause, sub-clause or subsection of any Loan Document immediately followed by a reference in parenthesis to the title of the section of such Loan Document containing such clause, sub-clause or subsection is a reference to such clause, sub-clause or subsection and not to the entire section; provided, however, that, in case of direct conflict between the reference to the title and the reference to the number of such section, the reference to the title shall govern absent manifest error.  If any reference to the number of a section (but not to any clause, sub-clause or subsection thereof) of any Loan Document is followed immediately by a reference in parenthesis to the title of a section of any Loan Document, the title reference shall govern in case of direct conflict absent manifest error.


 


Section 11. Notices


 


All communications and notices hereunder shall be given as provided in the Credit Agreement.


 


Section 12. Severability


 


The fact that any term or provision of this Agreement is held invalid, illegal or unenforceable as to any person in any situation in any jurisdiction shall not affect the validity, enforceability or legality of the remaining terms or provisions hereof or the validity, enforceability or legality of such offending term or provision in any other situation or jurisdiction or as applied to any person.


 




  





  











  






 


Section 13. Successors


 


The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.


 


Section 14. Waiver of Jury Trial


 


Each of the parties hereto irrevocably waives trial by jury in any action or proceeding with respect to this Amendment or any other Loan Document.


 


[SIGNATURE PAGES FOLLOW]


 




  





  











  











IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers and general partners thereunto duly authorized, as of the date first written above.


 



	
  

	
ALPHA NATURAL RESOURCES, INC., as the Borrower







 


 



	
  

	
By:

	/s/ Frank J. Wood                                                                    	 






	
  

	
Name: Frank J. Wood








	
  

	
Title: Executive Vice President, Chief Financial Officer, Treasurer and Assistant Secretary







 




  





  











  






 




	 	
A. T. MASSEY COAL COMPANY, INC.


	 	
ALEX ENERGY, INC.


	 	
ALLIANCE COAL CORPORATION


	 	
ALPHA AMERICAN COAL COMPANY, LLC


	 	
ALPHA AMERICAN COAL HOLDING, LLC


	 	
ALPHA APPALACHIA SERVICES, INC.


	 	
ALPHA COAL RESOURCES COMPANY, LLC


	 	
ALPHA COAL SALES CO., LLC


	 	ALPHA COAL WEST, INC.
	 	
ALPHA ENERGY SALES, LLC


	 	
ALPHA EUROPEAN SALES, INC.


	 	
ALPHA GAS AND OIL COMPANY


	 	
ALPHA INDIA, LLC


	 	
ALPHA LAND AND RESERVES, LLC


	 	
ALPHA MIDWEST HOLDING COMPANY


	 	
ALPHA PA COAL TERMINAL, LLC


	 	
ALPHA SHIPPING AND CHARTERING, LLC


	 	ALPHA TERMINAL COMPANY, LLC
	 	
ALPHA WYOMING LAND COMPANY, LLC


	 	
AMFIRE, LLC


	 	
AMFIRE HOLDINGS, LLC


	 	
AMFIRE MINING COMPANY, LLC


	 	
APPALACHIA COAL SALES COMPANY, INC.


	 	
APPALACHIA HOLDING COMPANY


	 	
ARACOMA COAL COMPANY, INC.


	 	
AXIOM EXCAVATING AND GRADING SERVICES, LLC


	 	
BANDMILL COAL CORPORATION


	 	
BANDYTOWN COAL COMPANY


	 	
BARBARA HOLDINGS INC.


	 	
BARNABUS LAND COMPANY


	 	
BELFRY COAL CORPORATION


	 	
BEN CREEK COAL COMPANY


	 	
BIG BEAR MINING COMPANY


	 	
BIG LAUREL MINING CORPORATION


	 	
BLACK DOG COAL, LLC


	 	
BLACK KING MINE DEVELOPMENT CO.


	 	
BLACK MOUNTAIN RESOURCES LLC


	 	
BLUFF SPUR COAL CORPORATION


	 	
BOONE EAST DEVELOPMENT CO.


	 	
BOONE ENERGY COMPANY


	 	
BOONE WEST DEVELOPMENT CO.


	 	
BROOKS RUN MINING COMPANY, LLC


	 	
BUCHANAN ENERGY COMPANY, LLC


	 	
BULL MOUNTAIN MINING CORPORATION


	 	
CALLAWAY LAND AND RESERVES, LLC











  





  











  







	 	
CASTLE GATE HOLDING COMPANY


	 	
CAVE SPUR COAL LLC


	 	
CENTRAL PENN ENERGY COMPANY, INC.


	 	
CENTRAL WEST VIRGINIA ENERGY COMPANY


	 	
CERES LAND COMPANY


	 	
CLEAR FORK COAL COMPANY


	 	
CLOVERLICK COAL COMPANY LLC


	 	
CLOVERLICK MANAGEMENT LLC


	 	
COAL GAS RECOVERY, LLC


	 	
COBRA NATURAL RESOURCES, LLC


	 	
CORAL ENERGY SERVICES, LLC


	 	
CRYSTAL FUELS COMPANY


	 	
CUMBERLAND EQUIPMENT CORPORATION


	 	
CUMBERLAND RESOURCES CORPORATION


	 	
DEHUE COAL COMPANY


	 	
DELBARTON MINING COMPANY


	 	
DELTA MINE HOLDING COMPANY


	 	
DEMETER LAND COMPANY


	 	
DICKENSON-RUSSELL COAL COMPANY, LLC


	 	
DICKENSON-RUSSELL LAND AND RESERVES, LLC


	 	
DORCHESTER ASSOCIATES LLC


	 	
DORCHESTER ENTERPRISES, INCORPORATED


	 	
DOUGLAS POCAHONTAS COAL CORPORATION


	 	
DRIH CORPORATION


	 	
DRY SYSTEMS TECHNOLOGIES, INC.


	 	
DUCHESS COAL COMPANY


	 	
EAGLE ENERGY, INC.


	 	
ELK RUN COAL COMPANY, INC.


	 	
EN ROUTE LLC


	 	
ENERGY DEVELOPMENT CORPORATION


	 	
ENTERPRISE LAND AND RESERVES, LLC


	 	
ENTERPRISE MINING COMPANY, LLC


	 	
ESPERANZA COAL CO., LLC


	 	
EXETER COAL CORPORATION


	 	
FOGLESONG ENERGY COMPANY


	 	
FOUNDATION MINING, LLC


	 	
FOUNDATION PA COAL COMPANY, LLC


	 	
FOUNDATION ROYALTY COMPANY


	 	
FREEPORT MINING, LLC


	 	
FREEPORT RESOURCES COMPANY, LLC


	 	
GOALS COAL COMPANY


	 	
GREEN VALLEY COAL COMPANY


	 	
GREYEAGLE COAL COMPANY


	 	
GUEST MOUNTAIN MINING CORPORATION


	 	
HADEN FARMS, INC.











  





  











  







	 	
HANNA LAND COMPANY, LLC


	 	
HARLAN RECLAMATION SERVICES LLC


	 	
HAZY RIDGE COAL COMPANY


	 	
HERNDON PROCESSING COMPANY, LLC


	 	
HIGH SPLINT COAL LLC


	 	
HIGHLAND MINING COMPANY


	 	
HOPKINS CREEK COAL COMPANY


	 	
INDEPENDENCE COAL COMPANY, INC.


	 	
JACKS BRANCH COAL COMPANY


	 	
JAY CREEK HOLDING, LLC


	 	
JOBONER COAL COMPANY


	 	
JST LAND COMPANY


	 	
JST MINING COMPANY


	 	
JST RESOURCES LLC


	 	
KANAWHA ENERGY COMPANY


	 	
KEPLER PROCESSING COMPANY, LLC


	 	
KINGSTON MINING, INC.


	 	
KINGSTON PROCESSING, INC.


	 	
KINGSTON RESOURCES, INC.


	 	
KINGWOOD MINING COMPANY, LLC


	 	
KNOX CREEK COAL CORPORATION


	 	
LAUREL CREEK CO., INC.


	 	
LAUREN LAND COMPANY


	 	
LAXARE, INC.


	 	
LITWAR PROCESSING COMPANY, LLC


	 	
LOGAN COUNTY MINE SERVICES, INC.


	 	
LONG FORK COAL COMPANY


	 	
LYNN BRANCH COAL COMPANY, INC.


	 	
MAGGARD BRANCH COAL LLC


	 	
MAJESTIC MINING, INC.


	 	
MAPLE MEADOW MINING COMPANY


	 	
MARFORK COAL COMPANY, INC.


	 	
MARTIN COUNTY COAL CORPORATION


	 	
MAXXIM REBUILD CO., LLC


	 	
MAXXIM SHARED SERVICES, LLC


	 	
MAXXUM CARBON RESOURCES, LLC


	 	
MCDOWELL-WYOMING COAL COMPANY, LLC


	 	
MEADOW BRANCH COAL LLC


	 	
MEADOW BRANCH MINING CORPORATION


	 	
MILL BRANCH COAL CORPORATION


	 	
MOUNTAIN MANAGEMENT, INCORPORATED


	 	
NEW MARKET LAND COMPANY


	 	
NEW RIDGE MINING COMPANY


	 	
NEW RIVER ENERGY CORPORATION


	 	
NEWEAGLE COAL SALES CORP.











  





  











  







	 	
NEWEAGLE DEVELOPMENT CORP.


	 	
NEWEAGLE INDUSTRIES, INC.


	 	
NEWEAGLE MINING CORP.


	 	
NICCO CORPORATION


	 	
NICEWONDER CONTRACTING, INC.


	 	
NICHOLAS ENERGY COMPANY


	 	
NINE MILE SPUR LLC


	 	
NORTH FORK COAL CORPORATION


	 	
ODELL PROCESSING INC.


	 	
OMAR MINING COMPANY


	 	
OSAKA MINING CORPORATION


	 	
PALLADIAN LIME, LLC


	 	
PANTHER MINING LLC


	 	
PARAMONT COAL COMPANY VIRGINIA, LLC


	 	
PAYNTER BRANCH MINING, INC.


	 	
PEERLESS EAGLE COAL CO.


	 	
PENNSYLVANIA LAND HOLDINGS COMPANY, LLC


	 	
PENNSYLVANIA SERVICES CORPORATION


	 	
PERFORMANCE COAL COMPANY


	 	
PETER CAVE MINING COMPANY


	 	
PIGEON CREEK PROCESSING CORPORATION


	 	
PILGRIM MINING COMPANY, INC.


	 	
PIONEER FUEL CORPORATION


	 	
PIONEER MINING, INC.


	 	
PLATEAU MINING CORPORATION


	 	
POWELL RIVER RESOURCES CORPORATION


	 	
POWER MOUNTAIN COAL COMPANY


	 	
PREMIUM ENERGY, LLC


	 	
RAVEN RESOURCES, INC.


	 	
RAWL SALES & PROCESSING CO.


	 	
RED ASH SALES COMPANY, INC.


	 	
RESOURCE DEVELOPMENT LLC


	 	
RESOURCE LAND COMPANY LLC


	 	
RIVER PROCESSING CORPORATION


	 	
RIVEREAGLE CORP.


	 	
RIVERSIDE ENERGY COMPANY, LLC


	 	
RIVERTON COAL PRODUCTION INC.


	 	
RIVERTON COAL SALES, INC.


	 	
ROAD FORK DEVELOPMENT COMPANY, INC.


	 	
ROBINSON-PHILLIPS COAL COMPANY


	 	
ROCKSPRING DEVELOPMENT, INC.


	 	
RODA RESOURCES LLC


	 	
ROSTRAVER ENERGY COMPANY


	 	
RUHRKOHLE TRADING CORPORATION


	 	
RUM CREEK COAL SALES, INC.











  





  











  







	 	
RUSSELL FORK COAL COMPANY


	 	
SC COAL CORPORATION


	 	
SCARLET DEVELOPMENT COMPANY


	 	
SHANNON-POCAHONTAS COAL CORPORATION


	 	
SHENANDOAH CAPITAL MANAGEMENT CORP.


	 	
SIDNEY COAL COMPANY, INC.


	 	
SIMMONS FORK MINING, INC.


	 	
SOLOMONS MINING COMPANY


	 	
SPARTAN MINING COMPANY


	 	
STILLHOUSE MINING LLC


	 	
STIRRAT COAL COMPANY


	 	
STONE MINING COMPANY


	 	
SUPPORT MINING COMPANY


	 	
SYCAMORE FUELS, INC.


	 	
T. C. H. COAL CO.


	 	
TALON LOADOUT COMPANY


	 	
TENNESSEE CONSOLIDATED COAL COMPANY


	 	
TENNESSEE ENERGY CORP.


	 	
TOWN CREEK COAL COMPANY


	 	
TRACE CREEK COAL COMPANY


	 	
TUCSON LIMITED LIABILITY COMPANY


	 	
TWIN STAR MINING, INC.


	 	
VANTAGE MINING COMPANY


	 	
VIRGINIA ENERGY COMPANY, LLC


	 	
WABASH MINE HOLDING COMPANY


	 	
WARRICK HOLDING COMPANY


	 	
WEST KENTUCKY ENERGY COMPANY


	 	
WHITE BUCK COAL COMPANY


	 	
WHITE FLAME ENERGY, INC.


	 	
WILLIAMS MOUNTAIN COAL COMPANY


	 	
WINIFREDE COAL CORPORATION


	 	
WYOMAC COAL COMPANY, INC.,









 


 



	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: Vice President and Secretary







 




  





  











  






 




	 	
ALPHA APPALACHIA HOLDINGS, INC.


	 	
ALPHA NATURAL RESOURCES, LLC













 



	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: Executive Vice President, General Counsel and Assistant Secretary














 







 



	 	
ALPHA NATURAL RESOURCES SERVICES, LLC












 





	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: Executive Vice President, General Counsel and Secretary





















 



	 	
ALPHA AUSTRALIA, LLC


	 	
ALPHA AUSTRALIA SERVICES, LLC







 



 





	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: Vice President















  





  











  













	 	
AMFIRE WV, L.P.


	 	
By: AMFIRE Holdings, LLC,


       as General Partner







 



 





	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: Vice President











 


 


 







	 	
CUMBERLAND COAL RESOURCES, LP


	 	
By: Pennsylvania Services Corporation,


       as General Partner














 





	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: Vice President and Secretary











 


 









	 	
EMERALD COAL RESOURCES, LP


	 	
By: Pennsylvania Services Corporation,


       as General Partner







 




 





	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: Vice President and Secretary













  





  











  







	 	
ALPHA NATURAL RESOURCES INTERNATIONAL, LLC


	 	
ALPHA SUB FIVE, LLC


	 	
ALPHA SUB FOUR, LLC


	 	
ALPHA SUB ONE, LLC


	 	
ALPHA SUB THREE, LLC


	 	
ALPHA SUB TWO, LLC













 





	
  

	
By:

	/s/ Vaughn R. Groves                                                                 	 






	
  

	
Name: Vaughn R. Groves








	
  

	
Title: President, Manager and Secretary























 











  





  











  














	
  

	
CITICORP NORTH AMERICA, INC.








	
  

	
as Administrative Agent, Collateral Agent








	
  

	
 and Lender







 


 



	
  

	
By:

	/s/ Christopher Wood                                                                        	 






	
  

	
Name: Christopher Wood








	
  

	
Title: Vice President







 










  





  











  














	
  

	
AMMC CLO III, LIMITED, as a Lender









	
  

	
By:

	American Money Management Corp., as Collateral Manager	 







 


 



	
  

	
By:

	/s/ Chester M. Eng                                                                            	 






	
  

	
Name: Chester M. Eng








	
  

	
Title: Senior Vice President







 






  





  











  









	
  

	
AMMC CLO IV, LIMITED, as a Lender









	
  

	
By:

	American Money Management Corp., as Collateral Manager	 





 



 



	
  

	
By:

	/s/ Chester M. Eng                                                                            	 






	
  

	
Name: Chester M. Eng








	
  

	
Title: Senior Vice President















  





  











  









	
  

	
AMMC CLO V, LIMITED, as a Lender









	
  

	
By:

	American Money Management Corp., as Collateral Manager	 





 



 



	
  

	
By:

	/s/ Chester M. Eng                                                                            	 






	
  

	
Name: Chester M. Eng








	
  

	
Title: Senior Vice President















  





  











  









	
  

	
AMMC CLO VI, LIMITED, as a Lender









	
  

	
By:

	American Money Management Corp., as Collateral Manager	 





 



 



	
  

	
By:

	/s/ Chester M. Eng                                                                            	 






	
  

	
Name: Chester M. Eng








	
  

	
Title: Senior Vice President

















  





  











  



















	
  

	
BANK OF AMERICA, N.A., as a Lender







 


 



	
  

	
By:

	/s/ Adam H. Fey                                                                                    	 






	
  

	
Name: Adam H. Fey








	
  

	
Title: Director









  





  











  









	
  

	
Bank of Montreal, Chicago Branch, as a Lender







 


 



	
  

	
By:

	/s/ Yacouba Kane                                                                                     	 






	
  

	
Name: Yacouba Kane








	
  

	
Title: Vice President









  





  











  









	
  

	
The Bank of Tokyo-Mitsubishi UFJ, Limited, as a Lender







 


 



	
  

	
By:

	/s/ Charles Stewart                                                                                    	 






	
  

	
Name: Charles Stewart








	
  

	
Title: Director









  





  











  









	
  

	
BARCLAYS BANK PLC, as a Lender







 


 



	
  

	
By:

	/s/ Michael J. Mozer                                                                                	 






	
  

	
Name: Michael J. Mozer








	
  

	
Title: Vice President









  





  











  















	
  

	
The Bank of East Asia, New York Branch, as a Lender







 


 



	
  

	
By:

	/s/ James Hua                                                                                	 






	
  

	
Name: James Hua








	
  

	
Title: SVP








 



	
  

	
By:

	/s/ Kitty Sin                                                                                	 






	
  

	
Name: Kitty Sin








	
  

	
Title: SVP









 










  





  











  









































	
  

	
Branch Banking and Trust Company, as a Lender







 


 




	
  

	
By:

	/s/ Troy R. Weaver                                                                               	 






	
  

	
Name: Troy R. Weaver








	
  

	
Title: Senior Vice President









 










  





  











  











	
  

	
Cadence Bank, N.A., as a Lender







 


 




	
  

	
By:

	/s/ Ashley Sloan                                                                               	 






	
  

	
Name: Ashley Sloan








	
  

	
Title: Vice President









 










  





  











  









	
  

	
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender







 


 




	
  

	
By:

	/s/ Blake Wright                                                                             	 






	
  

	
Name: Blake Wright








	
  

	
Title: Managing Director










 




	
  

	
By:

	/s/ Matt Helm                                                                             	 






	
  

	
Name: Matt Helm








	
  

	
Title: Director









 












  





  











  









	 	
Citicorp North America, Inc., as a Lender







 


 




	
  

	
By:

	/s/ Justin S. Tichauer                                                                             	 






	
  

	
Name: Justin S. Tichauer








	
  

	
Title: Vice President










 







  





  











  









	 	
Deutsche Bank Trust Company Americas, as a Lender







 


 




	
  

	
By:

	/s/ Marcus M. Tarkington                                                                             	 






	
  

	
Name: Marcus M. Tarkington








	
  

	
Title: Director











 




	
  

	
By:

	/s/ Michael Getz                                                                                             	 






	
  

	
Name: Michael Getz








	
  

	
Title: Vice President










 











  





  











  









	 	
GOLDMAN SACHS BANK USA, as a Lender







 


 




	
  

	
By:

	/s/ Michelle Latzoni                                                                     	 






	
  

	
Name: Michelle Latzoni








	
  

	
Title: Authorized Signatory










 







  





  











  









	 	
JPMORGAN CHASE BANK, N.A. as a Lender







 


 




	
  

	
By:

	/s/ Brian Knapp                                                                     	 






	
  

	
Name: Brian Knapp








	
  

	
Title: Vice President










 







  





  











  







	 	
CONFLUENT 4 LIMITED


	 	
As Lender


 


By: Loomis, Sayles & Company, L.P.


       As Sub-Manager


 



By: Loomis, Sayles & Company, Incorporated


       Its General Partner


, as a Lender









 


 




	
  

	
By:

	/s/ Mary McCarthy                                                             	 






	
  

	
Name: Mary McCarthy









	 	

Title: Vice President











  





  











  








	 	
MORGAN STANLEY SENIOR FUNDING, INC.


   as a Lender





 


 




	
  

	
By:

	/s/ Dmitriy Barskiy                                                                    	 






	
  

	
Name: Dmitriy Barskiy








	
  

	
Title: Vice President










 







  





  











  

















	 	
PNC Bank, National Association, as a Lender







 


 




	
  

	
By:

	/s/ Richard C. Munsick                                                                    	 






	
  

	
Name: Richard C. Munsick








	
  

	
Title: Senior Vice President










 







  





  











  









	 	
RAYMOND JAMES BANK N.A., as a Lender







 


 




	
  

	
By:

	/s/ Scott G. Axelrod                                                                    	 






	
  

	
Name: Scott G. Axelrod








	
  

	
Title: Vice President










 







  





  











  









	 	
The Royal Bank of Scotland plc, as a Lender







 


 




	
  

	
By:

	/s/ David Slye                                                                    	 






	
  

	
Name: David Slye








	
  

	
Title: Authorised Signatory










 







  





  











  









	 	
Sumitomo Mitsui Banking Corp., as a Lender







 


 




	
  

	
By:

	/s/ Shuji Yabe                                                                    	 






	
  

	
Name: Shuji Yabe








	
  

	
Title: Managing Director










 







  





  











  









	 	
Sovereign Bank, N.A., as a Lender







 


 




	
  

	
By:

	/s/ Robert D. Lanigan                                                                    	 






	
  

	
Name: Robert D. Lanigan








	
  

	
Title: SVP










 







  





  











  









	 	
UBS LOAN FINANCE LLC, as a Lender







 


 




	
  

	
By:

	/s/ Irja R. Otsa                                                                    	 






	
  

	
Name: Irja R. Otsa








	
  

	
Title: Associate Director











 




	
  

	
By:

	/s/ Mary E. Evans                                                               	 






	
  

	
Name: Mary E. Evans








	
  

	
Title: Associate Director










 











  





  











  









	 	
UNION BANK, .N.A., as a Lender







 


 




	
  

	
By:

	/s/ Richard G. Reeves                                                                    	 






	
  

	
Name: Richard G. Reeves








	
  

	
Title: Senior Vice President










 







  





  











  









	 	
U.S. Bank National Association, as a Lender







 


 




	
  

	
By:

	/s/ John M. Eyerman                                                                    	 






	
  

	
Name: John M. Eyerman








	
  

	
Title: Vice President










 







  





  











  









	 	
1776 CLO I, Ltd., as a Lender







 


 




	
  

	
By:

	/s/ Ron Polye                                                                    	 






	
  

	
Name: Ron Polye








	
  

	
Title: Trade










 







  





  











  









	 	
Wells Fargo Bank N.A., as a Lender







 


 




	
  

	
By:

	/s/ Jeffrey S. Linick                                                                    	 






	
  

	
Name: Jeffrey S. Linick








	
  

	
Title: Senior Vice President