Attached files
| file | filename |
|---|---|
| EX-4.1 - INDENTURE - James River Coal CO | jrcc_8k-ex0401.htm |
| EX-99.1 - PRESS RELEASE - James River Coal CO | jrcc_8k-ex9901.htm |
| EX-10.1 - FIFTH AMENDMENT TOTERM CREDIT AGREEMENT - James River Coal CO | jrcc_8k-ex1001.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
|
Date
of Report (Date of earliest event reported)
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November
20, 2009
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JAMES
RIVER COAL COMPANY
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(Exact
Name of Registrant as Specified in
Charter)
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Virginia
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000-51129
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54-1602012
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||
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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901
E. Byrd Street, Suite 1600, Richmond, Virginia
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23219
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
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(804)
780-3000
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Not
Applicable
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(Former
Name or Former Address, if Changed Since Last
Report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
| o |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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|
o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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ITEM
1.01
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ENTRY
INTO A MATERIAL AGREEMENT
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Fifth Amendment to Term
Credit Agreement
On
November 20, 2009, James River Coal Company (the “Company”) entered into the
Fifth Amendment (the “Fifth Amendment”) to its Term Credit Agreement dated as of
February 26, 2007 by and among the Company, certain of its subsidiaries, and the
other credit parties thereto, as guarantors, the lenders party thereto, Morgan
Stanley Senior Funding, Inc., as Administrative Agent (the “Administrative
Agent”) and as Sole-Bookrunner and Lead Arranger, and Morgan Stanley & Co.
Incorporated, as Collateral Agent (the “Term Credit Agreement”).
The Fifth
Amendment, among other things, terminates the ability of the Company and its
subsidiaries to obtain any additional letters of credit under the term loan
letter of credit facility (the “Facility”) but allows for any current
outstanding letters of credit under the Facility to remain outstanding for the
balance of their current terms. In order to allow the existing
letters of credit to remain outstanding, the Fifth Amendment requires the
Company and its subsidiaries to provide cash collateral to the Administrative
Agent under the Facility in an aggregate amount equal to 105% of the aggregate
amount available to be drawn under those letters of credit, which cash
collateral is subject to the first priority security interest of the
Administrative Agent. The cash collateral was provided on November
20, 2009 from a portion of the proceeds of the Company’s concurrent convertible
debt offering. The Fifth Amendment permits the convertible debt to be
issued and to be converted into equity and/or cash and for payments of principal
of, and interest on, the convertible debt to be made, all in accordance with the
terms of the convertible debt documents. The cash collateral may be
used by the Administrative Agent to reimburse itself, the term lenders and the
issuers of the existing letters of credit for any draws that may be made and
honored under the existing letters of credit as well as to pay any fees or other
obligations of the Company and its subsidiaries relative to those letters of
credit. Any remaining balance of the cash collateral will be returned
to the Company and its subsidiaries or, at the request of the administrative
agent under the Company’s revolving credit agreement (the “Revolver Agent”),
will be turned over to the Revolver Agent and all other liens of the
Administrative Agent and the term lenders on the other assets of the Company and
its subsidiaries will be released when the existing letters of credit are no
longer outstanding and all obligations of the Company and its subsidiaries under
the Term Credit Agreement are satisfied.
The
description of the Fifth Amendment set forth above is a summary and is not meant
to be a complete description of the Fifth Amendment. The description
of the Fifth Amendment set forth above is qualified by reference to the Fifth
Amendment filed herewith as Exhibit 10.1 and incorporated herein by
reference.
Indenture
On
November 20, 2009, the Company issued $172.50 million aggregate principal amount
of its 4.50% convertible senior notes due 2015 (the “Notes”) in a private
placement to qualified institutional buyers pursuant to Rule 144A under the
Securities Act of 1933, as amended. The Company issued the Notes
under an indenture dated as of November 20, 2009 (the “Indenture”), between the
Company and U.S. Bank National Association, as trustee (the
“Trustee”). The Notes bear interest at a rate of 4.50% per annum,
payable semi-annually in arrears on June 1 and December 1 of each year,
beginning on June 1, 2010. The Notes will mature on December 1, 2015,
subject to earlier repurchase or conversion.
Holders
may convert their Notes at their option prior to September 1, 2015 under the
following circumstances: (1) the Notes will be convertible during any calendar
quarter after the calendar quarter ending December 31, 2009, if the closing
price of the Company’s common stock, par value $0.01 (“Common Stock”) for each
of 20 or more trading days in a period of 30 consecutive trading days ending on
the last trading day of the immediately preceding calendar quarter exceeds 130%
of the conversion price of the Notes in effect on the last trading day of the
immediately preceding calendar quarter; (2) the Notes will be convertible during
the five consecutive business days immediately after any five consecutive
trading day period (the “Note Measurement Period”) in which the trading price
per $1,000 principal amount of the Notes for each trading day of that Note
Measurement Period was equal to or less than 97% of the product of the closing
sale price of shares of Common Stock and the applicable conversion rate for such
trading day; and (3) the Notes will be convertible if the Company makes certain
distributions on the Common Stock or upon the occurrence of specified corporate
transactions. In addition, the Notes will be convertible irrespective
of the foregoing circumstances from, and including, September 1, 2015 to, and
including, the business day immediately preceding the maturity date of the
Notes. Upon conversion, the Company will pay or deliver, at the
Company’s election, cash, shares of Common Stock or a combination
thereof. The initial conversion rate for the Notes will be 38.7913
shares of Common Stock per $1,000 principal amount of the Notes, representing an
initial conversion price of approximately $25.78 per share of Common
Stock. The initial conversion price represents a premium of
approximately 30% over the closing sale price of the Common Stock on November
12, 2009, which was $19.83 per share. The conversion rate will be
subject to adjustment in certain events but will not be adjusted for accrued
interest, including any additional interest. In addition, the
conversion rate will be increased for holders who elect to convert their Notes
in connection with certain events constituting a make-whole fundamental change
(as described in Section 10.15 of the Indenture).
2
Upon a
fundamental change (as described in Section 3.02 of the Indenture), holders
may require the Company to repurchase all or a portion of their Notes at a
purchase price in cash equal to 100% of the principal amount of the Notes to be
repurchased, plus any accrued and unpaid interest to, but excluding, the
fundamental change repurchase date. Such repurchase would constitute
an event of default under our revolving credit agreement which would allow the
lenders under our revolving credit agreement to foreclose on their collateral,
terminate their commitments and accelerate their loans, which would trigger an
event of default with respect to the Notes. The Notes are not
redeemable at the Company’s option prior to maturity.
The
Indenture contains customary terms and covenants, including that upon certain
events of default occurring and continuing, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Notes then outstanding
may declare the unpaid principal of the Notes and any accrued and unpaid
interest thereon immediately due and payable. In the case of certain
events of bankruptcy, insolvency or reorganization relating to the Company, the
principal amount of the Notes together with any accrued and unpaid interest
thereon will automatically become and be immediately due and
payable.
The Notes
will rank equally with all of the Company’s existing and future senior unsecured
indebtedness. The Notes will be effectively subordinated to all of
the Company’s existing and future secured indebtedness (to the extent of the
assets securing such indebtedness) and structurally subordinated to all existing
and future liabilities of the Company’s subsidiaries, including trade
payables. The Indenture does not limit the amount of debt that the
Company or its subsidiaries may incur.
The
Company will pay additional interest at a rate of 0.50% per annum on the Notes
if, at any time during the six-month period beginning on, and including the date
which is six months after the last date of original issuance of the Notes, the
Company fails to timely file any document or report that it is required to file
with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended, as applicable (after giving
effect to all applicable grace periods thereunder and other than reports on Form
8-K), or the Notes are not otherwise freely tradable by holders other than the
Company’s affiliates (as a result of restrictions pursuant to U.S. securities
law or the terms of the Indenture or the Notes). Further, if, and for
so long as, the restrictive legend on the Notes has not been removed, the Notes
are assigned a restricted CUSIP number or the Notes are not otherwise freely
tradable by holders other than the Company’s affiliates (without restrictions
pursuant to U.S. securities law or the terms of the Indenture or the Notes) as
of the 365th day
after the last date of original issuance of the Notes, the Company will pay
additional interest at a rate of 0.50% per annum on the Notes until the Notes
are freely tradable.
If the
Company fails to deliver to the Trustee a copy of each report that the Company
is required to file with the Securities and Exchange Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (after
giving effect to all applicable grace periods thereunder) and to otherwise
comply with the requirements of Section 314(a) of the Trust Indenture Act of
1939, as amended, the Company will, for the first 180 days immediately following
the occurrence of such event of default, pay additional interest at a rate of
(i) 0.25% of the outstanding principal amount of the Notes for the first 90
days following the occurrence of such event of default and (ii) 0.50% of the
outstanding principal amount of the Notes for the next 90 days after the first
90 days following the occurrence of such event of default.
In
reliance upon recent changes to registration requirements, the Company is not
required to and does not intend to file a shelf registration statement for the
resale of the Notes or any Common Stock issuable upon conversion of the
Notes. As a result, holders may only resell their Notes or any Common
Stock issuable upon conversion of the Notes pursuant to an exemption from the
registration requirements of the Securities Act of 1933, as amended (the
“Securities Act”).
The
description of the Notes and the Indenture set forth above is a summary and is
not meant to be a complete description of the Notes and the
Indenture. The description of the Indenture and the Notes set forth
above is qualified by reference to the Indenture (including the form of 4.50%
Convertible Senior Notes due 2015 attached thereto) filed as Exhibit 4.1 and
incorporated herein by reference.
3
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ITEM
2.03
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CREATION
OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE
SHEET ARRANGEMENT OF A REGISTRANT
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The
information required by Item 2.03 relating to the Notes and the Indenture is
contained in Item 1.01 of this Current Report on Form 8-K and is incorporated
herein by reference.
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ITEM
3.02
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UNREGISTERED
SALE OF EQUITY SECURITIES
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As
described in Item 1.01 of this Current Report on Form 8-K, the Company sold
$172.50 million aggregate principal amount of the Notes in a private placement
to UBS Securities LLC, Raymond James & Associates, Inc., Brean Murray,
Carret & Co., LLC and Davenport & Company LLC (the “Initial Purchasers”)
in reliance on the exemption from registration provided by Section 4(2) of the
Securities Act. The Initial Purchasers then sold or intend to sell
the Notes to “qualified institutional buyers” pursuant to the exemption from
registration provided by Rule 144A under the Securities Act. The
Company relied on these exemptions from registration based in part on
representations made by the Initial Purchasers. The Notes and the
shares of Common Stock issuable upon conversion of the Notes have not been
registered under the Securities Act and may not be offered or sold in the United
States absent registration or an applicable exemption from registration
requirements.
Net
proceeds from the sale of the Notes, including proceeds from the exercise in
full by the Initial Purchasers of their over-allotment option, were
approximately $166.8 million (after deducting the Initial Purchasers’ discounts
and commissions and estimated offering expenses payable by the
Company). The Initial Purchasers received an aggregate discount of
approximately $5.175 million in connection with the sale of the
Notes. The Company used approximately $58.5 million of the net
proceeds in connection with the termination of its letter of credit facility,
and intends to use the remaining proceeds for working capital and general
corporate purposes, which may include acquiring or investing in businesses or
other assets or repayment of outstanding debt.
The
information required by Item 3.02 relating to the Notes and the Indenture is
contained in Item 1.01 of this Current Report on Form 8-K and is incorporated
herein by reference.
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ITEM
8.01
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OTHER
EVENTS
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On
November 20, 2009, the Company issued a press release announcing that it has
closed a private offering of $172.50 million in aggregate principal amount of
the Notes.
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ITEM
9.01
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FINANCIAL
STATEMENTS AND EXHIBITS
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(d) Exhibits.
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Exhibit No.
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Description
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4.1
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Indenture
related to the 4.50% Convertible Senior Notes due 2015, dated as of
November 20, 2009, between James River Coal Company and U.S. Bank National
Association, as trustee (including the form of 4.50% Convertible Senior
Notes due 2015)
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10.1
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Fifth
Amendment to Term Credit Agreement by and among the Company, certain of
its subsidiaries, and the other credit parties thereto, as guarantors, the
lenders party thereto, Morgan Stanley Senior Funding, Inc., as
Administrative Agent and as Sole-Bookrunner and Lead Arranger, and Morgan
Stanley & Co. Incorporated, as Collateral Agent, dated as of November
20, 2009
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99.1
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Press
release dated November 20, 2009 titled “James River Coal Company Closes
$172.50 Million Convertible Senior Notes
Offering”
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4
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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JAMES
RIVER COAL COMPANY
(Registrant)
By: /s/ Samuel
M. Hopkins II
Samuel
M. Hopkins II
Vice
President and Chief Accounting
Officer
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Date: November
25, 2009
5