jrcc_ex1023.htm

Exhibit 10.23


    FOURTH
AMENDMENT TO TERM CREDIT AGREEMENT

    


     

    THIS FOURTH AMENDMENT TO TERM CREDIT AGREEMENT
(this “Agreement”), is made and
entered into as of November 5, 2008 (the “Effective Date”), by and among
James River Coal Company, a corporation organized under the laws of Virginia
(“JRCC”), and certain of
JRCC’s Subsidiaries identified on the signature pages hereof, as borrowers (such
Subsidiaries, together with JRCC, are referred to hereinafter each individually
as a “Borrower”, and
collectively, jointly and severally, as the “Borrowers”), and the other
credit parties hereto, identified on the signature pages hereof as Guarantors
(together, the Borrowers and Guarantors, the “Credit Parties”), the lenders
party hereto from time to time (the “Lenders”), Morgan Stanley
Senior Funding, Inc. (“MS”), a corporation formed
under the laws of Delaware, as administrative agent
for the Lenders (in such capacity, together with its successors and assigns, if
any, the “Administrative
Agent”) and as sole-bookrunner and lead arranger (in such capacity, the
“Lead Arranger”), and
Morgan Stanley & Co. Incorporated, as collateral agent for the Lenders (in
such capacity, together with its successors and assigns, if any, the “Collateral
Agent”).

    


    W I T N E S S E T
H:

     

    WHEREAS, the Borrowers, the
other Credit Parties signatory thereto, the Lenders and L/C Issuers party
thereto, and the Administrative Agent are parties to that certain Term Credit
Agreement, dated as of February 26, 2007 (as amended, restated, supplemented and
revised from time to time, the “Credit Agreement”), pursuant
to which the Lenders have committed to make certain loans and other extensions
of credit to the Borrowers upon the terms and conditions set forth therein;
and

     

    WHEREAS, the Borrowers have
requested that the Lenders make certain changes to the Credit Agreement and that
the Lenders consent to certain actions of the Borrowers; and

     

    WHEREAS, the Lenders are
willing, upon and subject to certain conditions, to amend the Credit Agreement
in certain respects, all in accordance with and subject to the terms and
conditions set forth herein.

     

    NOW, THEREFORE, in
consideration of the premises, the covenants and agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree that capitalized
terms used herein and not otherwise defined herein shall have the meanings given
to such terms in the Credit Agreement and as follows:

     


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    1.            Waiver. The Administrative Agent and
the undersigned Lenders, subject to the terms and conditions of this Agreement,
including without limitation the conditions to effectiveness specified in Section 7 below,
hereby waive any Default or Event of Default solely occurring by reason of the
Borrower’s failure to comply at any time with the financial covenants set forth
in Article X of
the Credit Agreement solely for the periods ending September 30, 2008 and
December 31, 2008.

     

    2.            Amendments
to the Credit Agreement.

     

    (a)           Section 1.01 of the
Credit Agreement, Definitions, is
hereby amended by adding the following definitions in the appropriate
alphabetical order:

    


    
      “Fourth Amendment
Date” means the effective date of the Fourth Amendment to Term Credit
Agreement dated as of November 5, 2008.

    

    


    
      “Fourth Amendment Fee”
means each Lender’s pro rata share of $2,738,898.26.

    

    


    
      “Supplemental Fourth
Amendment Fee” means each Lender’s pro rata share of
$5,477,796.52.

    

     

    (b)           Section
1.01 of the Credit Agreement, Definitions, is
hereby amended by deleting the definitions of “Applicable Margin”,
“Commitment
Fee” in their entirety and substituting in lieu thereof the
following:


    "Applicable
Margin” means (a)
from and including October 1, 2008 until December 31, 2008 the Applicable Margin
shall be six and a half percentage points (6.50%) in the case of Base Rate Loans
and seven and a half percentage points (7.50%) in the case of LIBOR Rate Loans;
(b) from and including January 1, 2009 until March 31, 2009 the Applicable
Margin shall be nine percentage points (9.0%) in the case of Base Rate Loans and
ten percentage points (10.0%) in the case of LIBOR Rate Loans; (c) from and
including April 1, 2009 the Applicable Margin shall be eleven and a half
percentage points (11.50%) in the case of Base Rate Loans and twelve and a half
percentage points (12.50%) in the case of LIBOR Rate Loans.

     

    (c)           Section 4.04, of the Credit Agreement,
Fees, is hereby amended by deleting the “and” immediately prior to subsection
(c) and adding a final clause “(d)” and “(e)” as follows:

     

    “, (d) substantially
contemporaneously with the effectiveness of the Fourth Amendment, the Borrowers
hereby agree to pay the Fourth Amendment Fee to each Lender that, on or before
November 12, 2008, executes and delivers its consent to the Fourth Amendment,
and (e) on the earlier of February 28, 2009 or date on which the Loans have been
prepaid in full the Borrowers hereby agree to pay the Supplemental Fourth
Amendment Fee to each Lender that delivered its consent to the Fourth Amendment
on or before November 12, 2008. Such Fees shall be fully earned upon the Fourth
Amendment Date, and for the avoidance of doubt, shall constitute Obligations of
the Borrower.”

     


    
      
         


      

      
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    3.          Affirmation
and Acknowledgment of the Borrowers.  The Borrowers
hereby ratify and confirm all of their Obligations to the Lenders, including,
without limitation, the Loans, and the Borrowers hereby affirm their absolute
and unconditional promise to pay to the Lenders all indebtedness, obligations
and liabilities in respect of the Loans, the Letters of Credit, and all other
amounts due under the Credit Agreement and the other Loan Documents as amended
hereby.  The Borrowers hereby confirm that the Obligations are and
remain secured pursuant to the Loan Documents and pursuant to all other
instruments and documents executed and delivered by the Borrowers as security
for the Obligations.

     

    4.          No Other
Waivers, Amendments or Consents.  Except for the
waiver in Section
1 hereof and the amendments expressly set forth and referred to in Section 2 hereof, the
Credit Agreement shall remain unchanged and in full force and
effect.  The waiver and consents contained herein shall not extend
beyond the terms expressly set forth herein for such waiver and consents, nor
impair any right or power accruing to the Administrative Agent or any Lender
with respect to any other Default or Event of Default or any Default or Event of
Default which occurs after the date hereof.  Nothing in this Agreement
is intended or shall be construed to be a novation of any Obligations or any
part of the Credit Agreement or any of the other Loan Documents or to affect,
modify or impair the continuity or perfection of the Administrative Agent’s
Liens under the Credit Agreement and Loan Documents.

     

    5.           Representations,
Warranties and Covenants.  To induce the undersigned Lenders to
enter into this Agreement, the Credit Parties hereby warrant, represent and
covenant to and with to the Lenders and the Administrative Agent that: (a) this Agreement
has been duly authorized, executed and delivered by the Credit Parties; (b) this
Agreement and the Credit Agreement as amended hereby constitute legal, valid and
binding obligations of the Credit Parties, enforceable in accordance with their
respective terms; (c) after giving effect to this Agreement, no Default or Event
of Default has occurred and is continuing as of this date; (d) no approval or
consent of, or filing with, any governmental agency or authority is required to
make valid and legally binding the execution, delivery or performance by the
Credit Parties of this Agreement or the Credit Agreement as amended hereby; and
(e) after giving effect to this Agreement, all of the representations and
warranties made by the Credit Parties in the Credit Agreement are true and
correct in all material respects on and as of the date of this Agreement (except
to the extent that any such representations or warranties expressly referred to
a specific prior date and except for changes therein expressly permitted or
expressly contemplated by the Credit Agreement or the other Loan
Documents).  Any breach by the Credit Parties of any of its
representations, warranties and covenants contained in this Section 5 shall be an
Event of Default under the Credit Agreement.

     

    6.           
Conditions
to Effectiveness.  This Agreement shall not become effective
unless and until the Administrative Agent has received (a) payment by the
Borrowers of the Fourth Amendment Fee and (b) one or more counterparts of this
Agreement, duly executed, completed and delivered by the Borrowers, the other
Credit Parties and the Required Lenders.

     

    7.           Reimbursement
of Expenses.  The Borrowers hereby agree to reimburse the
Administrative Agent on demand for all reasonable fees and reasonable
out-of-pocket costs and expenses (including without limitation the reasonable
and actual fees and expenses of its counsel) incurred by the Administrative
Agent in connection with the negotiation, documentation and consummation of this
Agreement and the other documents executed in connection herewith and the
transactions contemplated hereby.

     


    
      
         


      

      
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    8.           Governing
Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED
ENTIRELY WITHIN SAID STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.

     

    9.           Severability
of Provisions.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.  To the
extent permitted by applicable law, the Borrowers hereby waive any provision of
law that renders any provision hereof prohibited or unenforceable in any
respect.

     

    10.           Counterparts.  This
Agreement may be executed in any number of several counterparts, all of which
shall be deemed to constitute but one original and shall be binding upon all
parties, their successors and permitted assigns.  Delivery of an
executed signature page of this Agreement by facsimile transmission or
electronic transmission shall be as effective as delivery of a manually executed
counterpart hereof.

     

    11.           Entire
Agreement.  The Credit Agreement as amended through this
Agreement embodies the entire agreement between the parties hereto relating to
the subject matter thereof and supersedes all prior agreements, representations
and understandings, if any, relating to the subject matter thereof.

     

    12.           No Strict
Construction.  The parties hereto have participated jointly in
the negotiation and drafting of this Agreement.  In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.

     

    13.           No Third
Party Reliance.  This Agreement is solely for the benefit of
the parties signatory hereto, their successors and permitted
assigns.  No waiver, consent or amendment pursuant to this Agreement
may be relied upon by any third parties.

     


    
      
         


      

      
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    14.           Release. The Credit Parties
hereby remise, release, acquit, satisfy and forever discharge the Lenders, the
Administrative Agent, the Collateral Agent, and the L/C Issuer and their
respective agents, employees, officers, directors, predecessors, attorneys and
all others acting or purporting to act on behalf of or at the direction of the
Lenders, the Administrative Agent, the Collateral Agent, or the L/C Issuer of
and from any and all manner of actions, causes of action, suit, debts, accounts,
covenants, contracts, controversies, agreements, variances, damages, judgments,
claims and demands whatsoever, in law or in equity, which any of such parties
ever had or now has against the Lenders, the Administrative Agent, the
Collateral Agent, and the L/C Issuer their respective agents, employees,
officers, directors, attorneys and all persons acting or purporting to act on
behalf of or at the direction of the Lenders or the Administrative Agent (“Releasees”), for, upon or by
reason of any matter, cause or thing whatsoever arising from, in connection with
or in relation to the Credit Agreement or any of the other Loan Documents
(including this Agreement) through the date hereof.  Without limiting
the generality of the foregoing, the Credit Parties waive and affirmatively
agree not to allege or otherwise pursue any defenses, affirmative defenses,
counterclaims, claims, causes of action, setoffs or other rights they do, shall
or may have as of the date hereof, including, but not limited to, the rights to
contest any conduct of the Lenders, Administrative Agent or other Releasees on
or prior to the date hereof.

     

    


     

     

     

     

     

     

     

     

     

     

    
 

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    IN WITNESS WHEREOF, the
parties have caused this Fourth Amendment to Term Credit Agreement to be duly
executed by their respective officers or representatives thereunto duly
authorized, as of the date first above written.

     

    


     

    
      	
              BORROWERS:

            
	 
	
              JAMES
      RIVER COAL COMPANY

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              JAMES
      RIVER COAL SERVICE COMPANY

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
      
	
              LEECO,
      INC.

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            


    


    
      
         


      

      
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              TRIAD
      MINING, INC.

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              TRIAD
      UNDERGROUND MINING, LLC

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              BLEDSOE
      COAL CORPORATION

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              JOHNS
      CREEK ELKHORN COAL CORPORATION

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              JAMES
      RIVER COAL SALES, INC.

            
	 
	
              By: /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              BLEDSOE
      COAL LEASING COMPANY

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            


    

    



    
      
         


      

      
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              BLUE
      DIAMOND COAL COMPANY

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              MCCOY
      ELKHORN COAL CORPORATION

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              GUARANTORS:

            
	 
	
              BDCC
      HOLDING COMPANY, INC.

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              EOLIA
      RESOURCES, INC.

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            


    

    



    
      
         


      

      
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              SHAMROCK
      COAL COMPANY, INCORPORATED

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              JOHNS
      CREEK COAL COMPANY

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            
	 
	 
	
              JOHNS
      CREEK PROCESSING COMPANY

            
	 
	
              By:
      /s/  Peter
      T. Socha

            
	
              Name:
      Peter T. Socha

            
	
              Title:   Chief
      Executive Officer

            


    

    



    
      
         


      

      
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              LENDER:

              MORGAN
      STANLEY SENIOR FUNDING, INC.

            
	
              _________________________________________

            
	 
	 
	
              By:
      /s/  Stephen
      B. King

            
	
              Name:
      Stephen B. King

            
	
              Title:   VP

            
	 
	 
	
              COLLATERAL
      AGENT

            
	 
	
              MORGAN
      STANLEY & CO. INCORPORATED

            
	 
	
              By: /s/  Stephen
      B. King

            
	
              Name:
      Stephen B. King

            
	
              Title:   Executive
      Director

            
	 
      


    

    



    
      
         


      

      
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              LENDER:

               

              SANDELMAN
      FINANCE 2006-1, LTD.

               

            
	
              By:
      /s/  Peter
      A. Bio

            
	
              Name:
      Peter A. Bio

            
	
              Title:   Head
      of Capital Structure

            


    

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 


    
      
         


      

      
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              LENDER:

               

              TRILOGY
      PORTFOLIO COMPANY, LLC

               

            
	
              By:
      /s/  Paul
      S. Greenberg

            
	
              Name:
      Paul S. Greenbergo

            
	
              Title:   Principle

            


    

    


    


     

    


    


    
 

     

     

     

     

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