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EXHIBIT 10.24
CONSENT AND AMENDMENT NO. 3 TO LOAN DOCUMENTS
As of October 1, 1999
Foothill Capital Corporation
11111 Santa Monica Boulevard
Suite 1500
Los Angeles, California 90025
Gentlemen:
Foothill Capital Corporation, as agent ("Agent"), the financial
institutions party to the Loan Agreement referred to herein (each, individually
a "Lender" and collectively, "Lenders") and certain Subsidiaries of Anker Coal
Group, Inc. (each, individually, a "Borrower" and collectively "Borrowers") have
entered into certain financing arrangements as set forth in the Loan and
Security Agreement, dated as of November 21, 1998, by and among Borrowers,
Lenders and Agent, as amended by Amendment No. 1 to Loan Documents, dated August
4, 1999, by and among Borrowers, Guarantors, Lenders and Agent and Amendment No.
2 to Loan Documents, dated August 27, 1999, by and among Borrowers, Guarantors,
Lenders and Agent (as the same may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement"),
and all other agreements, documents and instruments referred to therein or at
any time executed and/or delivered in connection therewith or related thereto,
including, but not limited to, this Amendment (as all of the foregoing now
exist, are modified hereby or are hereafter amended, modified, supplemented,
extended, renewed, restated or replaced, collectively, the "Loan Documents").
Anker Coal Group, Inc. ("Parent") has issued or is about to issue its
14.25% Second Priority Senior Secured Notes (the "1999 Notes") pursuant to the
Indenture, dated as of October 1, 1999 (the "1999 Note Indenture"), by and among
Parent, certain Subsidiaries of Parent and The Bank of New York, as trustee (in
such capacity, the "1999 Note Trustee"), which notes are or will be secured by a
lien on substantially all of the assets and properties of Borrowers and
Guarantors. Agent and The Bank of New York, as collateral agent under the 1999
Note Indenture (in such capacity, the "1999 Note Collateral Agent"), have
entered or are about to enter into an Intercreditor Agreement, dated as of
October 1, 1999 (the "Intercreditor Agreement"), by and between Agent and the
1999 Note Collateral Agent, pursuant to which Agent and the 1999 Note Collateral
Agent confirmed or will confirm the relative priority of the security interests
of Agent and the 1999 Note Collateral Agent in the assets and properties of
Borrowers and Guarantors and provide for the orderly sharing among them, in
accordance with such priorities, of proceeds of such assets and properties upon
any foreclosure thereon or other disposition thereof.
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Borrowers have requested that Agent and Lenders (i) consent to the
issuance by Parent of the 1999 Notes pursuant to the 1999 Note Indenture, the
guaranty thereof by Borrowers and Guarantors and the grant to the 1999 Note
Collateral Agent of a security interest in such assets and properties and (ii)
amend the Loan Documents in certain respects, and Agent and Lenders are willing
to consent to the issuance by Parent of the 1999 Notes pursuant to the 1999 Note
Indenture, the guaranty thereof by the Borrowers and Guarantors and the grant to
1999 Note Collateral Agent of a security interest in such assets and properties
and to amend the Loan Documents in certain respects, subject to the terms and
conditions contained herein.
In consideration of the foregoing and the respective agreements and
covenants herein, the parties hereto agree as follows:
1. Consent. Subject to the terms and conditions contained herein,
Agent and Lenders hereby consent to: (i) the issuance by Parent of the 1999
Notes pursuant to the terms of the 1999 Note Indenture as in effect on the
Amendment No. 3 Closing Date, (ii) the grant by Borrowers and Guarantors of the
Liens on their assets and properties pursuant to the terms of the 1999 Note
Indenture as in effect on the Amendment No. 3 Closing Date, provided, that, such
Liens are subordinated in right and priority to the Liens granted to Agent for
the benefit of the Lender Group as provided for and subject to the terms and
conditions of the Intercreditor Agreement, and (iii) the consummation of the
transactions contemplated by the 1999 Note Indenture as in effect on the
Amendment No. 3 Closing Date and the instruments, documents and agreements
executed and delivered in connection with the issuance of the 1999 Notes.
2. Definitions.
2.1 Amendments to Definitions.
(a) The definition of "Affiliate" set forth in Section 1.1 of
the Loan Agreement is hereby deleted in its entirety and the following
substituted therefor:
"'Affiliate' means, as applied to any Person, any other
Person who directly or indirectly controls, is controlled by, is
under common control with or is a director or officer of such
Person. For purposes of this definition "control" means the
possession, directly or indirectly, of the right to vote ten (10%)
percent or more of the securities having ordinary voting power for
the election of directors or other direct or indirect power to
direct the management and policies of a Person; provided that no
1999 Noteholders shall be deemed to be an Affiliate of Borrowers or
Guarantors solely by reason of its ownership of Warrants or shares
issuable upon exercise thereof or the 1999 Notes held or which may
be held by any 1999 Noteholder."
(b) The definition of "Loan Documents" set forth in Section
1.1 of the Loan Agreement is hereby deleted in its entirety and the following
substituted therefor:
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"'Loan Documents' means this Agreement, as amended by
Amendment No.1, Amendment No. 2 and Amendment No. 3, the Continuing
Guaranty of the Obligations by each of the Guarantors and the
Borrowers in favor of Agent, for the benefit of the Lender Group,
the Security Agreements, the Pledge Agreement, the Disbursement
Letter, the Letters of Credit, the Lockbox Agreements, the
Mortgages, the Intercreditor Agreement, any note or notes executed
by Borrowers and payable to the Lender Group, and any other
agreement entered into, now or in the future, in connection with
this Agreement."
(c) The definition of "Material Adverse Change" set forth in
Section 1.1 of the Loan Agreement is hereby amended by deleting clause (a)
thereof in its entirety and substituting the following therefor:
"(a) a material adverse change in the business, prospects,
operations, results of operations, assets, liabilities or condition
(financial or otherwise) of Borrowers and/or Guarantors, other than
as a result of the consummation of Permitted Dispositions and
Permitted Supplemental Dispositions; provided, that, the write-down
by Borrowers and Guarantors of certain of the assets of Borrowers
and Guarantors as of December 31, 1998 shall not be deemed a
Material Adverse Change for purposes of this definition;".
(d) The definition of "Permitted Disposition" set forth in
Section 1.1 of the Loan Agreement is hereby amended by deleting the reference to
"$1,000,000" in clause (e)(iii) thereof and substituting "$1,200,000" therefor.
(e) The definition of "Permitted Liens" set forth in Section
1.1 of the Loan Agreement is hereby amended by deleting clause (m) thereof in
its entirety and substituting the following therefor:
"(m) Liens held by the 1999 Note Collateral Agent for the benefit
of the 1999 Note Trustee and the 1999 Noteholders pursuant to the
1999 Note Indenture as in effect on the Amendment No. 3 Closing
Date; provided, that, such Liens are subordinated in right and
priority to the Liens granted to Agent for the benefit of the
Lender Group as provided for and subject to the terms and
conditions of the Intercreditor Agreement."
(f) Section 1.1 of the Loan Agreement is hereby amended by
deleting the definitions of "Refinanced Senior Note Indebtedness", "Refinanced
Senior Note Intercreditor Agreement", "Replacement Term Loan" and "Replacement
Term Loan Lender" in their entirety.
2.2 Additional Definitions. Section 1.1 of the Loan Agreement is
hereby amended by adding the following new definitions in the appropriate
alphabetical order:
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"'1999 Note Collateral Agent' means The Bank of New York, a
New York banking corporation in its capacity as Collateral Agent
pursuant to the 1999 Note Indenture for and on behalf of the 1999
Note Trustee and the 1999 Noteholders, and its successors and
assigns in such capacity."
"'1999 Noteholders' means, collectively, the Persons from
time to time who are Holders (as defined in the 1999 Note
Indenture) of any 1999 Notes and their respective successors and
assigns, being sometimes referred to herein individually as a '1999
Noteholder'."
"'1999 Note Indenture' means the Indenture dated as of
October 1, 1999 relating to the 1999 Notes executed by Parent as
Issuer, the other Guarantors and Borrowers as guarantors and The
Bank of New York as trustee, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced."
"'1999 Notes' means , collectively, the 14.25% Second
Priority Senior Secured Notes due 2007 (PIK until April 1, 2000) of
any series issued under the 1999 Note Indenture (as in effect on
the Amendment No. 3 Closing Date), including, without limitation,
(i) the 14.25% Second Priority Senior Secured Notes issued pursuant
to the Public Exchange Offer (as defined in the 1999 Note Indenture
as in effect on the Amendment No. 3 Closing Date), (ii) the
Secondary Notes (as defined in the 1999 Note Indenture as in effect
on the Amendment No. 3 Closing Date) and (iii) the Optional Secured
Notes (as defined in the 1999 Note Indenture as in effect on the
Amendment No. 3 Closing Date), and shall include all Rule 144A
Global Notes, Definitive Notes, Global Notes, RSTD Global Notes,
Regulation S Permanent Global Notes, Regulation S Temporary Global
Notes, Restricted Definitive Notes, Restructured Global Notes,
Unrestricted Definitive Notes and Unrestricted Global Notes (as
each such term is defined in the 1999 Note Indenture as in effect
on the Amendment No. 3 Closing Date), in each case issued by Parent
pursuant to the 1999 Note Indenture, as the same now exist or may
hereafter be modified, supplemented, extended, renewed or
replaced."
"'1999 Note Trustee' means The Bank of New York, a New York
banking corporation in its capacity as trustee for and on behalf of
the 1999 Noteholders under the 1999 Note Indenture, and its
successors and assigns in such capacity."
"'Amendment No. 3' means Amendment No. 3 to Loan Documents,
dated as of October 1, 1999, by and among Borrowers, Guarantors,
Agent and Lenders."
"'Amendment No. 3 Closing Date' means the date that each of
the conditions set forth in Section 11 of Amendment No. 3 have been
satisfied in a manner satisfactory to Agent."
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"'Intercreditor Agreement' means the Intercreditor Agreement,
dated as of October 1, 1999, by and between Agent and the 1999 Note
Collateral Agent, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced."
"'Warrants' means warrants to purchase an aggregate of 3,047
shares of common stock of Parent and issued pursuant to the
Exchange and Purchase Agreement, dated October 1, 1999, by and
among Parent, Borrowers and Guarantors and the purchasers and
exchanging noteholders party thereto, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced."
2.3 Construction. All capitalized terms used herein shall have
the meanings assigned thereto in the Loan Agreement, unless otherwise defined
herein.
3. Term Loan Facility.
3.1 Section 2.3(a)(iii) of the Loan Agreement is hereby amended
by deleting clause (C) thereof in its entirety and substituting the following
therefor:
"(C) to make Intercompany Loans to Parent (if and to the extent
permitted by Section 7.13) for the purpose of enabling Parent to
pay Indebtedness owing under the Senior Notes and the 1999 Notes".
3.2 Section 2.3(a)(iv) of the Loan Agreement is hereby deleted in
its entirety and substituting the following therefor:
"(iv) the proceeds of Permitted Supplemental Dispositions
shall, at the election of the Required Lenders, in an amount (if
any) for each Permitted Supplemental Disposition as shall be
designated by the Required Lenders, be remitted to and applied by
Agent as a mandatory prepayment, without penalty, to the
above-described regularly scheduled principal installments due and
payable with respect to the Term Loan, in the inverse order of
their maturity."
4. Due Authorization; No Conflict. Section 5.9(b) of the Loan
Agreement is hereby amended by deleting clause (ii) thereof in its entirety and
substituting the following therefor:
"(ii) conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under (A) the Senior
Notes and the Senior Note Indenture, (B) the 1999 Notes and the
1999 Note Indenture or (C) any other material contractual
obligation or material lease of Borrowers, which could reasonably
be expected to result in a Material Adverse Change,".
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5. No Material Adverse Change. Section 5.11 of the Loan Agreement is
hereby amended by deleting the second sentence thereof in its entirety and
substituting the following therefor:
"There has not been a Material Adverse Change with respect to
Borrowers or Guarantors since the date December 31, 1998. "
6. Indebtedness.
6.1 Section 7.1(b) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(b) Indebtedness set forth on Schedule 7.1, including, without
limitation, the Indebtedness owing under the Senior Notes and the
1999 Notes;".
6.2 Section 7.1(d) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(d) refinancings, renewals, or extensions of Indebtedness
permitted under clauses (b) and (c) of this Section 7.1 (and
continuance or renewal of any Permitted Liens associated therewith)
so long as: (i) the terms and conditions of such refinancings,
renewals, or extensions do not materially impair the prospects of
the repayment of the Obligations by Borrowers, (ii) the net cash
proceeds of such refinancings, renewals, or extensions do not
result in an increase in the aggregate principal amount of the
Indebtedness so refinanced, renewed, or extended, (iii) except with
respect to the refinancing of the Indebtedness evidenced by the
Senior Notes, such refinancings, renewals, refundings, or
extensions do not result in a shortening of the average weighted
maturity of the Indebtedness so refinanced, renewed, or extended,
(iv) to the extent that Indebtedness that is refinanced was
subordinated in right of payment to the Obligations, then the
subordination terms and conditions of the refinancing Indebtedness
must be at least as favorable to the Lender Group as those
applicable to the refinanced Indebtedness, (v) solely with respect
to the Indebtedness evidenced by the Senior Notes, in addition to
and not in limitation of the foregoing, such refinancings,
renewals, refundings, or extensions shall be on at least as
favorable terms and conditions to Borrowers and Guarantors taken as
a whole as the terms and conditions set forth in and be issued
pursuant to the 1999 Note Indenture and (vi) solely with respect to
the Indebtedness evidenced by the 1999 Notes, in addition to and
not in limitation of the foregoing, the subordination terms and
conditions of the Liens securing such refinancing Indebtedness must
be at least as favorable to the Lender Group as those applicable to
the Liens securing the 1999 Notes and the holders of such
refinancing Indebtedness shall have entered into and executed with
Agent an intercreditor agreement with terms and conditions no less
favorable to the Agent than those set forth in the Intercreditor
Agreement;".
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7. Investments; Loans. Section 7.13(c)(ix) of the Loan Agreement is
hereby amended by deleting the two sentences immediately following the chart in
such Section in their entirety and substituting the following therefor:
"Intercompany Loans shall be made (subject to the terms and
conditions of this clause (ix)) solely for the purpose of funding
the working capital requirements and for the general corporate
purposes in the ordinary business of the borrower thereof and,
without limiting the generality of the foregoing in the case of
Parent, for the purpose of funding the payment of interest accrued
and accruing on the Senior Notes and the 1999 Notes, to prepay and
purchase a portion of the Senior Notes or the 1999 Notes and
operating expenses and taxes paid by Parent for its own account or
for the account of Borrowers and the other Guarantors as
consolidated group expenses and distributions permitted to be made
by Parent pursuant to Section 7.11. For the avoidance of doubt,
notwithstanding anything to the contrary set forth in this
Agreement, if Borrowers request any Advance the proceeds of which
shall be used to make an Intercompany Loan to or for the account of
Parent for the purpose of prepayment and purchase of all or any
portion of the Senior Notes or the 1999 Notes, unless such
requested Advance constitutes a reborrowing of proceeds of
Permitted Dispositions and/or Permitted Supplemental Dispositions
that have been remitted to Agent pursuant to Section 2.3(a)(iii)
within ninety (90) days after the consummation of the Permitted
Disposition and/or Permitted Supplemental Disposition, Borrowers
must have Excess Availability in an amount equal to $10,000,000
both for the thirty (30) days immediately preceding the date of
such Borrowing and after giving effect thereto."
8. Events of Default. Section 8.10 of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
"8.10 If there is a default under the Senior Notes, the
Senior Note Indenture, the 1999 Notes, the 1999 Note Indenture or
any other material agreement involving a sum in excess of $500,000
to which Borrowers or Guarantors are a party with one or more third
Persons and such default (a) occurs at the final maturity of the
obligations thereunder, or (b) results in a right by the holders of
the Senior Notes or the Trustee under the Indenture, the 1999
Noteholders or the 1999 Note Trustee or by such other third
Persons, irrespective of whether exercised, to accelerate the
maturity of Borrowers' or Guarantors obligations thereunder;".
9. Schedules. Schedule 7.1 to the Loan Agreement is hereby amended and
restated in its entirety to read as set forth on Schedule 7.1 hereto.
10. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrowers to Lender
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Group pursuant to the Loan Documents, each Borrower and each Guarantor hereby
jointly and severally represents, warrants and covenants with and to Lender
Group as follows (which representation, warranties and covenants are continuing
and shall survive the execution and delivery hereof and shall be incorporated
into and made a part of the Loan Documents):
10.1 No Default or Event of Default exists as of the date of this
Amendment after giving effect to the consent, waiver and amendments set forth
herein.
10.2 This Amendment has been duly executed and delivered by each
Borrower and each Guarantor, and is in full force and effect as of the date
hereof, and the agreements and obligations of each Borrower and each Guarantor
contained herein and therein constitute legal, valid and binding obligations of
Borrowers and Guarantors enforceable against each Borrower and each Guarantor in
accordance with their respective terms.
10.3 All of the representations and warranties set forth in the
Loan Agreement and the other Loan Documents are 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 any such representation or warranty is made as of a specified date,
in which case such representation or warranty shall have been true and correct
as of such date.
11. Conditions Precedent. The consent, waiver and amendments
herein shall be effective upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Agent (the date of satisfaction
of such conditions, the "Amendment No. 3 Closing Date"):
11.1 Agent shall have received an original of this Amendment, duly
authorized, executed and delivered by each Borrower, each Guarantor and each
Lender;
11.2 Agent shall have received an original of the Intercreditor
Agreement executed by the 1999 Note Collateral Agent and acknowledged by
Borrowers and Guarantors;
11.3 Agent shall have received evidence satisfactory to Agent that
the 1999 Notes to be issued pursuant to the 1999 Note Indenture on or before the
Amendment No. 3 Closing Date have been issued and Agent shall have received a
certificate of the chief financial officer of Parent to such effect and
certifying that attached thereto are true, correct and complete copies of the
executed 1999 Note Indenture and the other Operative Note Agreements (as defined
in the Intercreditor Agreement) executed and delivered, or to be executed and
delivered, on or before the Amendment No. 3 Closing Date, each of which shall be
in form and substance satisfactory to Agent in its sole discretion;
11.4 Agent shall have received evidence satisfactory to Agent that
the Parent shall have received not less than $10,500,000 in immediately
available funds as net proceeds from the
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issuance by Parent of the 1999 Notes to be issued pursuant to the 1999 Note
Indenture on or before the Amendment No. 3 Closing Date;
11.5 Agent shall have received (a) a qualified Solvency
Certificate in respect of Borrowers and Parent and a qualified Compliance
Certificate, in each case for and as of the last day of September 1999, (b) a
pro forma Solvency Certificate in respect of Borrowers and Parent and a pro
forma Compliance Certificate giving effect to the issuance of the 1999 Notes to
be issued pursuant to the 1999 Note Indenture on or before the Amendment No. 3
Closing Date and the transactions contemplated by the 1999 Note Indenture and
this Amendment, in each case for and as of the last day of September 1999 and
(c) a certificate of the chief financial officer of Parent setting forth a
calculation in reasonable detail showing compliance with the covenants set forth
in Section 7.20 of the Loan Agreement;
11.6 Agent shall have received a certificate from the Secretary of
Borrowers and Guarantors attesting to the respective resolutions of Borrowers'
and Guarantors' Board of Directors authorizing its execution, delivery and
performance of this Amendment and the other Loan Documents to which Borrowers
and Guarantors are a party as amended hereby and authorizing specific officers
of Borrowers and Guarantors to execute same;
11.7 no Event of Default (other than the Subject Defaults) shall
have occurred and be continuing and no event shall have occurred or condition be
existing and continuing which, with notice or passage of time or both, would
constitute an Event of Default; and
11.8 all other documents and legal matters in connection with the
transactions contemplated by this Amendment shall have been delivered, executed
or recorded and shall be in form and substance satisfactory to Agent and its
counsel.
12. Waiver. Borrowers hereby acknowledge, confirm and agree that
(a) Parent and Borrowers have failed to deliver unqualified Solvency
Certificates for July, August and September, 1999 required to be delivered
pursuant to Section 6.2(b)(i) of the Loan Agreement, and unqualified Compliance
Certificates as of the last day of July, August and September of 1999 required
to be delivered pursuant to Section 6.3 of the Loan Agreement, (b) as a result
of Parent's certification to Agent that Parent is not presently Solvent, as set
forth in Parent's Solvency Certificates for Parent's fiscal months ended on the
last day of July, August and September, 1999, Borrowers' representation and
warranty with respect thereto set forth in Section 5.11 of the Loan Agreement is
not true and correct, (c) Borrowers have made Intercompany Loans to Parent and
Guarantors in violation of the requirements set forth in Section 7.13(c)(ix) of
the Loan Agreement, (d) Borrowers will not have had Excess Availability in
excess of the amount required by Section 7.13(c)(ix)(B) for the thirty (30) days
immediately preceding the date of the Intercompany Loan to Parent made in
connection with the payment by Parent of interest due on October 1, 1999 under
the Senior Notes and (e) as a result of the foregoing, Events of Default have
occurred and are continuing under Section 8.2 of the Loan Agreement
(collectively, the "Subject Defaults"). At the request of Borrowers and
Guarantors, Agent, at the written request
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of the Required Lenders, hereby waives the Subject Defaults, provided, however,
that (x) Parent and Borrowers deliver to Agent on the date hereof (i) a
qualified Solvency Certificate for September 1999 and a qualified Compliance
Certificate as of September 30, 1999 and (ii) a pro forma Solvency Certificate
in respect of Borrowers and Parent and a pro forma Compliance Certificate giving
effect to the issuance of the 1999 Notes to be issued pursuant to the 1999 Note
Indenture on or before the Amendment No. 3 Closing Date and the transactions
contemplated by the 1999 Note Indenture and this Amendment, in each case for and
as of the last day of September 1999, (y) after giving effect to (i) the
issuance of the 1999 Notes to be issued pursuant to the 1999 Note Indenture on
or before the Amendment No. 3 Closing Date, (ii) the transactions contemplated
by the 1999 Note Indenture and this Amendment and (iii) the payment by Parent of
interest due on October 1, 1999 under the Senior Notes, Borrowers shall have
Excess Availability in an amount in excess of $5,000,000 and (z) nothing
contained herein shall constitute a waiver of any other existing Event of
Default or any future noncompliance with Section 6.2(b)(i), Section 6.3 or
Section 7.13(c)(ix) of the Loan Agreement or any other term, condition or
agreement contained in the Loan Agreement or any Loan Document. Nothing
contained herein shall limit, impair, waive or otherwise affect any other term,
provision or condition of the Loan Agreement or any other Loan Document, all of
which remain in full force and effect in accordance with all of their respective
existing terms and conditions.
13. Fee. As partial consideration for Lender Group's entering
into this Amendment, Borrowers shall pay to Agent for the ratable benefit of
Lender Group a fee in the amount of $100,000, which shall be fully earned and
payable as of the date hereof.
14. Miscellaneous.
14.1 Headings. The headings listed herein are for convenience only
and do not constitute matters to be considered in interpreting this Amendment.
14.2 Effect of this Amendment. Except as modified pursuant hereto,
the Loan Documents are hereby specifically ratified, restated and confirmed by
all parties hereto as of the effective date hereof. To the extent of a conflict
between the terms of this Amendment and the other Loan Documents, the terms of
this Amendment shall control.
14.3 Governing Law. The validity, interpretation and enforcement of
this Amendment shall be governed by the laws of the State of New York.
14.4 Further Assurances. Borrowers and Guarantors shall execute
and deliver such additional documents and take such additional action as may be
necessary or desirable, as determined by Agent, to effectuate the provisions and
purposes of this Amendment.
14.5 Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement.
[remainder of page intentionally left blank]
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Please sign the enclosed counterpart of this Amendment in the space
provided below, whereby this Amendment, as accepted by Agent and Lenders, shall
become a binding agreement among Borrowers, Guarantors and Lender Group.
Very truly yours,
ANKER ENERGY CORPORATION
By: /s/ Bruce Sparks
------------------------
Title: President
---------------------
MARINE COAL SALES COMPANY
By: /s/ B. Judd Hartman
------------------------
Title: Secretary
---------------------
ANKER WEST VIRGINIA MINING
COMPANY, INC.
By: /s/ B. Judd Hartman
------------------------
Title: Secretary
---------------------
PATRIOT MINING COMPANY, INC.
By: /s/ B. Judd Hartman
------------------------
Title: Secretary
---------------------
VINDEX ENERGY CORPORATION
By: /s/ B. Judd Hartman
------------------------
Title: Secretary
---------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PRIOR PAGE]
ANKER VIRGINIA MINING COMPANY, INC.
By: /s/ B. Judd Hartman
-------------------------------
Title: Secretary
----------------------------
JULIANA MINING COMPANY, INC.
By: /s/ B. Judd Hartman
-------------------------------
Title: Secretary
----------------------------
ANKER COAL GROUP, INC.,
as Guarantor and Borrower Agent
By: /s/ Bruce Sparks
-------------------------------
Title: President
----------------------------
ANKER GROUP, INC.
By: /s/ Bruce Sparks
-------------------------------
Title: President
----------------------------
SIMBA GROUP, INC.
By: /s/ Bruce Sparks
-------------------------------
Title: President
----------------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PRIOR PAGE]
ANKER POWER SERVICES, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
BRONCO MINING COMPANY, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
VANTRANS, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
KING KNOB COAL CO., INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
HEATHER GLEN RESOURCES, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PRIOR PAGE]
HAWTHORNE COAL COMPANY, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
UPSHUR PROPERTY, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
MELROSE COAL COMPANY, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
NEW ALLEGHENY LAND HOLDING
COMPANY, INC.
By: /s/ B. Judd Hartman
-------------------------
Title: Secretary
----------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PRIOR PAGE]
AGREED AND ACKNOWLEDGED:
FOOTHILL CAPITAL CORPORATION
as Agent and as a Lender
By: /s/ Anthony Aloi
--------------------------
Title: Vice President
-----------------------
CONGRESS FINANCIAL CORPORATION
By: /s/ Cindy Denbaum
--------------------------
Title: Vice President
-----------------------
SUNROCK CAPITAL CORP.
By: /s/ illegible
--------------------------
Title: Senior Vice President
-----------------------
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SCHEDULE 7.1
Permitted Other Indebtedness
1. Indebtedness of Parent, Borrowers and Guarantors evidenced by the
Senior Notes and issued pursuant to the terms of the Senior Note
Indenture
2. Indebtedness of Parent, Borrowers and Guarantors evidenced by the 1999
Notes and issued pursuant to the terms of the 1999 Note Indenture
3. Indebtedness of Zither Mining Company, Inc. (assumed by Anker West
Virginia Mining Company, Inc.) evidenced by that certain promissory
note of Zither Mining Company, Inc. in favor of Elkay Mining Company,
dated as of March 31, 1995, as amended, in the original principal
amount of $2,796,139.00. As of October 2, 1999, the outstanding
principal balance was $328,800.00.