Exhibit
10.6


 


FIFTH
AMENDMENT TO CREDIT AGREEMENT


 


THIS FIFTH
AMENDMENT TO CREDIT AGREEMENT, dated as of                     ,
2008 (this “Amendment”), is made by and among RHINO ENERGY
LLC, a Delaware limited liability company formerly known as CAM
Holdings LLC (the “Borrower”), EACH OF THE GUARANTORS
(as hereinafter defined), the LENDERS  PARTY HERETO, and PNC BANK, NATIONAL
ASSOCIATION, in its capacity as administrative agent for the Lenders
under this Agreement (hereinafter referred to in such capacity as the “Agent”).


 


WITNESSETH:


 


WHEREAS, the
Borrower, the Guarantors (as defined therein), the Lenders (as defined
therein), and the Agent are parties to that certain Credit Agreement, dated as
of August 30, 2006, as amended by that certain First Amendment to Credit
Agreement, dated as of December 28, 2006, as amended by that certain
Second Amendment to Credit Agreement and Consent, dated as of March 8,
2007, as amended by that certain Third Amendment to Credit Agreement, dated as
of February 29, 2008, as amended by that certain Fourth Amendment to
Credit Agreement, dated as of May 15, 2008 (as so amended and as the same
may be further amended, modified or supplemented from time to time, the “Credit
Agreement”);


 


WHEREAS,
capitalized terms used herein and not otherwise defined herein and defined in
the Credit Agreement shall have the meanings assigned to them in the Credit
Agreement;


 


WHEREAS,
Wexford Capital LLC and various affiliates thereof (the “Wexford Investors”)
hold 100% of the member interests of the Borrower, and the Wexford Investors
pledged such member interests to the Agent, on behalf of the Lenders, pursuant
to that certain Pledge Agreement dated August 30, 2006 (the “Pledge
Agreement”);


 


WHEREAS, the
Wexford Investors propose to transfer, pursuant to a series of transfers
(collectively, the “Borrower Equity Transfer”), all of the member
interests in the Borrower (which transfers shall be made subject to the lien
created by the existing Pledge Agreement) such that after giving effect to the
Borrower equity Transfer all of the member interests in the Borrower shall be
owned by the following Persons (collectively, the “Restated Pledgors”): (i) Rhino
Resources, Inc. (“Resources”), an entity indirectly owned by the
Wexford Investors,  (ii) [Wexford
Offshore CAM Preferred Corp.], an entity indirectly owned by certain Wexford
Investors, and (iii)  [Wexford Offshore CAM Common Corp.], an entity
indirectly owned by certain Wexford Investors;


 


WHEREAS, the
above restructuring is done in contemplation of the initial public offering by
Resources of up to 25% of its equity interest (the “IPO”); and


 


WHEREAS, the
Loan Parties now request that the Required Lenders agree to the amendments to
the Credit Agreement, consents and approvals set forth herein, and the Required
Lenders are willing to accommodate the request of the Loan Parties, subject to
and on the terms and conditions set forth herein.


 

















 


NOW,
THEREFORE, the parties hereto, in consideration of their mutual covenants and
agreements hereinafter set forth and intending to be legally bound hereby,
covenant and agree as follows:


 


1.             New
Definitions.  Section 1.1
[Certain Definitions] of the Credit Agreement is hereby amended to insert the
following new definitions in the appropriate alphabetical order therein:


 


“Fifth
Amendment shall mean that certain Fifth Amendment to Credit Agreement,
dated as of
                  ,
2008, among the Borrower, the Guarantors, the Lenders party thereto and the
Agent.”


 


“Fifth Amendment
Effective Date shall mean the effective date of the Fifth Amendment in
accordance with its terms.”


 


“Holdings
shall mean Rhino Energy Holdings LLC, a
                
limited liability company.”


 


“Resources
shall mean Rhino Resources, Inc., a Delaware corporation.”


 


2.             Amendment of Section 1.1 [Certain Definitions].  The definition of the term “Change of Control”
contained in Section 1.1 of the Credit Agreement is hereby amended and
restated in its entirely to read as follows:


 


“Change
of Control shall mean that Wexford Capital LLC and any fund owned or
managed by Wexford Capital LLC (collectively, “Wexford”) and Terry N. Coleman,
collectively: (i) directly or indirectly fail to control the Borrower, (ii) shall
fail to own directly or indirectly, 51% of any class of the voting member
interests of the Borrower and 51% of the economic ownership of the Borrower or (iii) shall
make any public sale of the member interests of the Borrower.  Control, as used in this definition, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.”


 


3.             Amendment of Section 8.1.14 [Collateral and
Additional Collateral, Etc.].  Section 8.1.14
of the Credit Agreement is hereby amended by adding after clause (iii) thereof
the following new clause (iv):


 


“(iv)        Notwithstanding anything to the contrary
contained in this Section 8.1.14, the Loan Parties shall not be required
to execute and deliver a Mortgage or an amendment to an existing Mortgage, or
file a Mortgage or an amendment to an existing Mortgage, with respect to any
Property unless the fair market value of such individual Property exceeds
$500,000 or the aggregate fair market value of such Property and all other Properties
not then subject to a Mortgage exceeds $1,000,000.”


 


2

















 


4.             Amendment of Clause (iii) of Section 8.1.14
[Collateral and Additional Collateral, Etc.].  Clause (iii) of Section 8.1.14
of the Credit Agreement is hereby amended by deleting the phrase “,
concurrently with such acquisition or creation,” in the third and fourth lines
thereof and adding the following sentence at he end of such clause (iii):


 


“Notwithstanding anything
to the contrary contained in this clause (iii) of Section 8.1.14, the
Loan Parties shall not be required to execute and deliver the documents
referred to above until the date that is five (5) Business Days after the
date on which such new Subsidiary first acquires any Property or assets that
would constitute Collateral and such Properties or assets have a value in
excess of $500,000.”


 


5.             Amendment of Section 8.2.5 [Dividends
and Related Distributions].  Section 8.2.5(iii) of the Credit
Agreement is hereby amended and restated in its entirely to read as follows:


 


“(iii)        other dividends and
distributions payable by the Borrower to its members in excess of the Tax
Distributions in the aggregate amount of up to $15,000,000 per fiscal year, provided,
however, that:  (A) the
Borrower shall deliver to the Agent at least five (5) Business Days before
such proposed dividend or distribution a certificate of the Borrower in
substantially the form of Exhibit 8.3.4 demonstrating that the
Borrower shall have, after giving effect to any such proposed dividend or
distribution, at least $25,000,000 of Availability, and (B) at the time of
any such dividend or distribution, no Event of Default or Potential Default
shall exist or shall result after giving effect thereto.” [Note:
language that was deleted effectively took away the concept added above that
Company would have the right to might $15 million of distributions over and
above Tax Distributions]


 


6.             Amendment of Section 11.18 [Joinder of
Guarantors].  The last sentence of Section 11.18 of
the Credit Agreement is hereby amended and restated in its entirely to read as
follows:


 


“The Loan Parties shall
deliver such Guarantor Joinder and related documents within five (5) Business
Days after the date on which such Subsidiary first acquires any Property or
assets that would constitute Collateral and such Properties or assets have a
value in excess of $500,000.”


 


7.             Waiver
re Prepayment.  Effective as of the
Fifth Amendment Effective Date, the Agent and the Required Lenders hereby waive
the restrictions on the prepayment date imposed by clause (c)(ii) of Section 5.4.1
to the extent necessary to enable the Borrower to apply funds received by it
representing proceeds of the IPO to the prepayment of the Loans on or about the
date of the closing of the IPO.


 


8.             Consent
to Borrower Equity Transfer. 
Effective as of the Fifth Amendment Effective Date, the Agent and the
Required Lenders consent to the Borrower Equity Transfer.


 


3

















 


9.             Lien
Termination Statements.   Effective as of the Fifth Amendment Effective
Date, the Agent and the Required Lenders hereby agree that (i) the UCC-1
financing statements filed against each member of the Borrower that was a
signatory to the Pledge Agreement shall be deemed terminated and (ii) each
such member, the Borrower and the Borrower’s counsel are authorized to file
UCC-3 financing statements terminating such UCC-1 financing statements.


 


10.           Conditions
to Effectiveness.  The foregoing
amendments contained in this Amendment shall have an effective date and this
Amendment shall be dated the date upon which each of the following conditions
has been satisfied to the satisfaction of the Agent (the “Fifth Amendment
Effective Date”):


 


(a)           Execution
and Delivery of Fifth Amendment.  The
Borrower, the other Loan Parties, the Required Lenders, and the Agent shall
have executed this Amendment, and all other documentation necessary for
effectiveness of this Amendment shall have been executed and delivered all to
the satisfaction of the Agent.


 


(b)           Execution
and Delivery of an Amended and Restated Pledge Agreement.  The Restated Pledgors shall have executed and
delivered to the Agent for the benefit of the Lenders an amended and restated
Pledge Agreement (the “Amended and Restated Pledge Agreement”), in the
form of Exhibit A attached hereto, and such Amended and Restated
Pledge Agreement shall be ratified by the Borrower.


 


(c)           Execution
and Delivery of Updates to Schedule 6.1.2 [Capitalization].  The Required Lenders shall have received an
updated Schedule 6.1.2 [Capitalization] to the Credit Agreement in form
satisfactory to the Agent.


 


(d)           Delivery
of Secretary’s Certificate.  The
Secretary or Assistant Secretary of each Restated Pledgor shall have delivered
to the Agent for the benefit of the Lenders a certificate, dated as of the date
hereof and signed by such Secretary or Assistant Secretary, certifying as to:


 


(i)            all action taken by
such Restated Pledgor in connection with the Amended and Restated Pledge
Agreement, any other Loan Document and this Amendment;


 


(ii)           the names of the
officer or officers of such Restated Pledgor authorized to sign the Amended and
Restated Pledge Agreement, other documents executed in connection therewith and
any other Loan Documents, and the true signatures of such officer or officers
and specifying the officer authorized to act on behalf of such Restated Pledgor
for purposes of the Amended and Restated Pledge Agreement and any other Loan
Documents and the true signatures of such officers, on which the Agent and each
Lender may conclusively rely; and


 


(iii)          copies of the
organizational documents of such Restated Pledgor, including its certificate of
incorporation and bylaws as in effect on the date hereof, certified by the
appropriate state official where such documents are filed in a state office
together with certificates from the appropriate state officials as to the
continued existence and good standing of 
such Restated Pledgor in each state where organized, all of which shall
be reasonably satisfactory to the Agent.


 


4

















 


(e)           Representations
and Warranties; No Event of Default. 
The representations and warranties contained in Section 6 of the
Credit Agreement and this Amendment, and of each Loan Party in each of the other
Loan Documents, are true and correct on and as of the Fifth Amendment Effective
Date with the same effect as though such representations and warranties had
been made on and as of such date (except representations and warranties which
relate solely to an earlier date or time, which representations and warranties
were true and correct on and as of the specific dates or times referred to
therein), each of the Loan Parties has performed and complied with all
covenants and conditions hereof and thereof, and no Event of Default or
Potential Default has occurred and is continuing or exists as of the Fifth
Amendment Effective Date; and by its execution and delivery of this Amendment,
the Borrower and each other Loan Party certifies to each such effect.


 


(f)            Legal
Details.  All legal details and
proceedings in connection with the transactions contemplated by this Amendment
and the other Loan Documents are in form and substance satisfactory to the
Agent and counsel for the Agent, and the Agent has received all such other
counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Agent and its counsel, as the Agent or its counsel may
reasonably request.


 


11.           Representations
and Warranties.  By its execution and
delivery of this Amendment to the Agent, the Borrower and each of the other
Loan Parties represents and warrants to the Agent and the Lenders as follows:


 


(a)           Authorization,
Etc.  Each Loan Party has duly
authorized, executed and delivered this Amendment.


 


(b)           Material
Adverse Change.  After giving effect
to this Amendment, no Material Adverse Change shall have occurred with respect
to the Borrower or any of the other Loan Parties since the Closing Date of the
Credit Agreement.


 


(c)           Litigation.  After giving effect to this Amendment, there
are no actions, suits, investigations, litigation or governmental proceedings
pending or, to the Borrower’s or any other Loan Party’s knowledge, threatened
against any of the Loan Parties that could reasonably be expected to result in
a Material Adverse Change.


 


12.           Miscellaneous.


 


(a)           Full
Force and Effect.  All provisions of
the Credit Agreement remain in full force and effect on and after the Fifth
Amendment Effective Date and the date hereof except as expressly amended
hereby.  The parties do not amend any
provisions of the Credit Agreement except as expressly amended hereby.


 


(b)           Counterparts.  This Amendment may be signed in counterparts
(by facsimile transmission or otherwise) but all of which together shall
constitute one and the same instrument.


 


(c)           Incorporation
into Credit Agreement.  This
Amendment shall be incorporated into the Credit Agreement by this
reference.  All representations,
warranties, Events of Default and 


 


5

















 


covenants set forth herein shall be a part of the Credit Agreement as
if originally contained therein.


 


(d)           Governing Law.  This Amendment shall be deemed to be a
contract under the Laws of the Commonwealth of Pennsylvania and for all
purposes shall be governed by and construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania without regard to its
conflict of laws principles.


 


(e)           No Novation.  Except as amended hereby, all of the terms
and conditions of the Credit Agreement and the other Loan Documents shall
remain in full force and effect.  The
Borrower, the other Loan Parties, each Lender, and the Agent acknowledge and agree
that this Amendment is not intended to constitute, nor does it constitute, a
novation, interruption, suspension of continuity, satisfaction, discharge or
termination of the obligations, loans, liabilities, or indebtedness under the
Credit Agreement or the other Loan Documents.


 


[SIGNATURE PAGES
FOLLOW]


 


6

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


IN
WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Fifth Amendment as of the day and year first
above written.


 


	
  ATTEST:

  	
  RHINO ENERGY LLC,
  a Delaware limited

  
	
   

  	
  liability company

  



 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
  (SEAL)

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title

  	
   

  	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  CAM
  MINING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  CAM-BB
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  CAM-KENTUCKY
  REAL ESTATE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  RHINO
  NORTHERN HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  CAM
  COAL TRADING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  LEESVILLE
  LAND, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  CAM
  AIRCRAFT LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  HOPEDALE
  MINING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  CAM-OHIO
  REAL ESTATE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  SPRINGDALE
  LAND, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  CAM-COLORADO
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  TAYLORVILLE
  MINING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  CLINTON STONE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  McCLANE CANYON MINING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  RHINO COALFIELD SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  RHINO RECLAMATION SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  SANDS HILL MINING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  RHINO SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 














 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


	
   

  	
  DEANE MINING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  RESERVE HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  RHINO TRUCKING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION,

  individually and as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  THE HUNTINGTON NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  L. Blair DeVan

  
	
   

  	
  Title:

  	
  Vice President

  
				



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  NATIONAL CITY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  David M. Metz

  
	
   

  	
  Title:

  	
  Senior Vice President

  
				



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  RAYMOND JAMES BANK, FSB, individually

  and as Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  ROYAL  BANK OF CANADA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.,

  individually and as Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


EXHIBIT A


 


Form of Amended and Restated Pledge Agreement


 

















 


[SIGNATURE
PAGE - FIFTH AMENDMENT TO CREDIT AGREEMENT]


 


 


	
   

  	
  WACHOVIA  BANK, NATIONAL

  ASSOCIATION, individually and as Co-

  Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Jonathan R. Richardson

  
	
   

  	
  Title:

  	
  Vice President