thirdamendmenttocreditagr.htm


    
      EXHIBIT 10.1

       

      THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT

       

      This
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as
of March 10, 2008 by and among A. T. MASSEY COAL COMPANY, INC., a
Virginia corporation (the “Administrative Borrower”),
individually and as agent on behalf of the other Loan Parties (such term and
each other capitalized term used but not defined herein having
the meaning given to it in Article I of
the Credit Agreement referenced below), the Required Lenders signatory hereto,
UBS AG, STAMFORD BRANCH, as
administrative agent (the “Administrative Agent”), and
THE CIT GROUP/BUSINESS CREDIT, INC., as collateral agent and as security trustee
(the “Collateral Agent”; and
together with the Administrative Agent, the “Agents”) for the Secured Parties and Issuing Bank.

       

      RECITALS

       

      WHEREAS,
the Administrative Borrower, the other Borrowers, the Guarantors, the
Administrative Agent, the Collateral Agent and Lenders entered into that certain
Amended and Restated Credit Agreement dated as of August 15, 2006 (as amended,
supplemented, restated or otherwise modified from time to time, the “Credit
Agreement”);

       

      WHEREAS,
the Administrative Borrower is required to deliver to the Collateral Agent and
Administrative Agent an Inventory Appraisal reasonably satisfactory to both
Agents pursuant to Section 5.15(e) of the Credit Agreement simultaneously with
its delivery of the annual financial statements required by Section 5.01(a) of
the Credit Agreement;

       

      WHEREAS,
the Administrative Borrower is able to timely deliver the financial statements
for the fiscal year ending December 31, 2007 as required by Section 5.01(a) of
the Credit Agreement, but anticipates that it will be unable to timely deliver
the Inventory Appraisal required by Section 5.15(e) of the Credit Agreement;
and

       

      WHEREAS,
the Administrative Borrower (on behalf of itself and each of the other Loan
Parties) has requested that Agents and the Required Lenders amend Section
5.15(e) of the Credit Agreement to change the deadline by which the Inventory
Appraisal must be delivered for the 2007 and subsequent fiscal
years.

       

      NOW
THEREFORE, in consideration of the foregoing recitals, mutual agreements
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Agents, the Required Lenders
and the Administrative Borrower (on behalf of itself and each of the other Loan
Parties) agree as follows:

       

      1 Amendment
to Credit Agreement.  Effective on the
date of the satisfaction of the conditions precedent set forth in Section 2 hereof,
Section 5.15(e) of the Credit Agreement is amended by amending and restating
Section 5.15(e) as follows:

       

      “(i) as
soon as available after the end of the 2007 fiscal year but no later than April
15, 2008, (ii) as soon as available after the end of the 2008 fiscal year but no
later than August 15, 2009 and (iii) as soon as available after the end of the
2009 fiscal year and each fiscal year thereafter but no later than November
15th
of the year following the end


      
        
          
            


             

          

           


        

        
           


          
            

          

        

        
           


        

      


      of such
fiscal year, in each case, an Inventory Appraisal to be conducted by an
appraiser satisfactory to the Collateral Agent, and in form, scope and
substance, substantially the same as the Inventory Appraisal delivered on or
about the Original Closing Date and, otherwise reasonably satisfactory to the
Collateral Agent and Administrative Agent;”

      


      2 Conditions
to Effectiveness.  This Agreement
shall be effective on the date on which all of the following conditions
precedent are satisfied:

       

      2.1 This
Agreement shall have been executed and delivered by the Administrative Agent,
the Collateral Agent, the Required Lenders and the Administrative Borrower (on
behalf of itself and each of the other Loan Parties).

       

      2.2 The
representations and warranties contained herein shall be true and correct in all
respects, and, after giving effect to this Agreement, no Event of Default or
Default shall exist on the date hereof.

       

      3 Representations and
Warranties.

       

      3.1 The
execution, delivery and performance by Administrative Borrower (on behalf of
itself and each of the other Loan Parties) of this Agreement has been duly
authorized by all necessary corporate action and this Agreement is a legal,
valid and binding obligation of the Administrative Borrower and each of the
other Loan Parties enforceable against the Administrative Borrower and each of
the other Loan Parties in accordance with its terms, except as the enforcement
thereof may be subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors’
rights generally and (ii) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law);

       

      3.2 Each of
the representations and warranties contained in the Credit Agreement is true and
correct in all material respects on and as of the date hereof as if made on the
date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date; and

       

      3.3 Neither
the execution, delivery and performance of this Agreement by the Administrative
Borrower (on behalf of itself and each of the other Loan Parties) nor the
consummation of the transactions contemplated hereby does or shall result in a
breach of, or violate (i) any provision of the Administrative Borrower’s or any
other Loan Party’s articles of incorporation or bylaws, (iii) any law or
regulation, or any order or decree of any court or government instrumentality,
applicable to the Administrative Borrower or the other Loan Parties or binding
upon any of their properties, or (iii) any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which the Administrative Borrower or any
other Loan Party is a party or by which the Administrative Borrower or any other
Loan Party or any of their property is bound, except in any such case to the
extent such conflict or breach has been waived by a written waiver document, a
copy of which has been delivered to the Agents on or before the date
hereof.

       


      
        
          
             

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      4.           Reference
to and Effect upon the Credit Agreement.

       

      4.1           Except
as specifically set forth above, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.

       

      4.2           The
execution, delivery and effectiveness of this Agreement shall not operate as a
waiver of any right, power or remedy of any Agent or any Lender under the Credit
Agreement or any other Loan Document, nor constitute amendment of any provision
of the Credit Agreement or any other Loan Document, except as specifically set
forth herein.  Upon the effectiveness of this Agreement, each
reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”,
“herein” or words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.

       

      4.3           The
Administrative Borrower (on behalf of itself and each of the other Loan Parties)
acknowledges and agrees that the execution and delivery by Agents and Required
Lenders of this Agreement shall not be deemed (i) to create a course of dealing
or otherwise obligate Agents or Lenders to forbear, waive, consent or execute
similar amendments under the same or similar circumstances in the future, or
(ii) to amend, relinquish or impair any right of Agents or Lenders to receive
any indemnity or similar payment from any Person or entity as a result of any
matter arising from or relating to this Agreement.

       

      4.4           The
Administrative Borrower (on behalf of itself and each of the other Loan Parties)
affirms and acknowledges that this Agreement constitutes a Loan Document under
the Credit Agreement and any reference to the Loan Documents under the Credit
Agreement contained in any notice, request, certificate or other document
executed concurrently with or after the execution and delivery of this Agreement
shall be deemed to include this Agreement unless the context shall otherwise
specify.

       

      5.           Costs and
Expenses.  As provided in Section 11.03 of the
Credit Agreement, Borrowers agree to reimburse Agents for all reasonable
out-of-pocket expenses incurred by the Administrative Agent and the Collateral
Agent in connection with the preparation, execution and delivery of this
Agreement, including the fees, charges and disbursements of Latham &
Watkins, LLP, counsel for the Administrative Agent and Hahn & Hessen, LLP,
counsel to the Collateral Agent.

       

      6. GOVERNING
LAW.  THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.

       

      7.           Headings.  Section
headings in this Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other
purposes.

       

      8.           Counterparts.  This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed an original, but all such counterparts shall constitute
one and the same instrument.    In the event that any
signature is delivered by facsimile

       


      
        
          
             

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      transmission,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf the signature is executed) the same with the same
force and effect as if such facsimile signature page were an original thereof,
and such party shall promptly follow its facsimile signature page by mailing of
a hard copy original.

       

      [Signature
Pages Follow]

       


      
        
          
             

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      IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first written above.

       

      ADMINISTRATIVE
BORROWER

      


      A. T.
MASSEY COAL COMPANY, INC., individually and as agent for each of the other Loan
Parties

      


      


      By:           /s/ Philip W.
Nichols                                                                

      Name:
Philip W. Nichols

      Title:  Treasurer

      


       

      AGENTS

       

      UBS AG,
STAMFORD BRANCH, as the Administrative Agent

      


      


      By:           /s/ Mary E.
Evans                                                                

      Name:  Mary
E. Evans

      Title:  Associate
Director

      


      


      By:           /s/ David B.
Julie                                                                

      Name:
David B. Julie

      Title:  Associate
Director

      



      


      THE CIT
GROUP/BUSINESS CREDIT, INC., as the Collateral Agent

      


      By:           /s/ Eddy L.
Milstein                                                                

      Name:  Eddy
L. Milstein

      Title:  Vice
President

      



      LENDERS

      


      UBS LOAN
FINANCE LLC,

      as
Swingline Lender

      


      


      By:           /s/ Mary E.
Evans                                                                

      Name:  Mary
E. Evans

      Title:  Associate
Director

      


      


      By:           /s/ David B.
Julie                                                                

      Name:  David
B. Julie

      Title:  Associate
Director


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      UBS LOAN
FINANCE LLC,

      as a
Lender

      


      


      By:           /s/ Mary E.
Evans                                                                

      Name:  Mary
E. Evans

      Title:  Associate
Director

      


      


      By:           /s/ David B.
Julie                                                                

      Name:  David
B. Julie

      Title:  Associate
Director

      
 

      The CIT
Group/Business Credit, Inc., as a Lender

      


      


      By:           /s/ Eddy L.
Milstein                                                                

            Name:  Eddy
L. Milstein

            Title:  Vice
President

       


      
        GENERAL
ELECTRIC CAPITAL CORPORATION, as a Lender

        


        


        By:           /s/ Randall F.
Hornick

        Name:  Randall
F. Hornick

        Title:  Authorized
Signatory

         

         

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

        


        


        By:           /s/ Lawrence P.
Garni

        Name:  Lawrence
P. Garni

        Title:  SVP

         

         

        PNC BANK,
NATIONAL ASSOCIATION, as a Lender

        


        


        By:           /s/ Dale A.
Stein

        Name:  Dale
A. Stein

        Title:  Sr.
Vice President