Exhibit 10.1
================================================================================
$250,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 26, 2002
among
XXXXXX ENERGY COMPANY,
as Borrower
and
THE SUBSIDIARIES OF THE BORROWER PARTY HERETO
as Guarantors
and
CITICORP USA, INC.,
as Administrative Agent and Collateral Agent
and
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent
and
THE LENDERS PARTY HERETO
Lead Arranged by
XXXXXXX XXXXX BARNEY INC.
================================================================================
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
ARTICLE I DEFINITIONS.............................................................................. 1
Section 1.01 Definitions......................................................................... 1
Section 1.02 Accounting Terms and Determinations................................................. 18
Section 1.03 Types of Borrowings................................................................. 18
Section 1.04 Pricing Levels...................................................................... 18
Section 1.05 Certain Terms....................................................................... 19
ARTICLE II THE CREDITS.............................................................................. 19
Section 2.01 Commitments to Lend................................................................. 19
Section 2.02 Notice of Borrowings................................................................ 20
Section 2.03 Notice to Lenders; Funding of Loans................................................. 20
Section 2.04 Register; Optional Notes............................................................ 21
Section 2.05 Voluntary Conversion or Continuation of Loans....................................... 22
Section 2.06 Interest Rates...................................................................... 23
Section 2.07 Unutilized Commitment Fees.......................................................... 23
Section 2.08 Optional Termination or Reduction of Commitments.................................... 23
Section 2.09 Mandatory Termination of Commitments................................................ 24
Section 2.10 Optional Prepayments................................................................ 24
Section 2.11 Mandatory Prepayments............................................................... 25
Section 2.12 Payments and Computations........................................................... 25
Section 2.13 Computation of Interest and Fees.................................................... 26
Section 2.14 Place of Loans...................................................................... 26
ARTICLE III CONDITIONS TO EFFECTIVENESS AND BORROWINGS............................................... 26
Section 3.01 Conditions Precedent to Effectiveness............................................... 26
Section 3.02 Conditions Precedent to Each Borrowing.............................................. 29
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................... 29
Section 4.01 Corporate Existence and Power; Compliance with Law.................................. 29
Section 4.02 Corporate, Limited Liability Company, Partnership
and Governmental Authorization; Contravention....................................... 30
Section 4.03 Binding Effect...................................................................... 30
Section 4.04 Ownership of Subsidiaries........................................................... 30
Section 4.05 Financial Information............................................................... 31
Section 4.06 Solvency............................................................................ 31
Section 4.07 Litigation.......................................................................... 31
Section 4.08 Compliance with ERISA............................................................... 31
Section 4.09 Taxes............................................................................... 32
i
Section 4.10 No Burdensome Restrictions; No Defaults............................................. 32
Section 4.11 Investment Company Act; Public Utility Holding Company Act.......................... 32
Section 4.12 Intellectual Property............................................................... 32
Section 4.13 Use of Proceeds..................................................................... 33
Section 4.14 Insurance........................................................................... 33
Section 4.15 Labor Matters....................................................................... 33
Section 4.16 Business of Borrower; Properties.................................................... 33
Section 4.17 No Misleading Statements............................................................ 33
Section 4.18 Environmental Matters............................................................... 33
ARTICLE V COVENANTS................................................................................ 34
Section 5.01 Information......................................................................... 34
Section 5.02 Financial Covenants................................................................. 37
Section 5.03 Affirmative Covenants............................................................... 37
Section 5.04 Negative Covenants.................................................................. 42
ARTICLE VI DEFAULTS................................................................................. 48
Section 6.01 Events of Default................................................................... 48
Section 6.02 Notice of Default................................................................... 50
ARTICLE VII THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT............................................ 50
Section 7.01 Authorization and Action............................................................ 50
Section 7.02 Agents' Reliance, Etc............................................................... 51
Section 7.03 Citicorp and Affiliates............................................................. 51
Section 7.04 Lender Credit Decision.............................................................. 51
Section 7.05 Indemnification..................................................................... 52
Section 7.06 Successor Administrative Agent...................................................... 52
Section 7.07 Administrative Agent's Fee.......................................................... 52
Section 7.08 Co-Agents........................................................................... 52
ARTICLE VIII CHANGE IN CIRCUMSTANCES.................................................................. 53
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair............................ 53
Section 8.02 Illegality.......................................................................... 53
Section 8.03 Increased Cost and Reduced Return................................................... 54
Section 8.04 Substitution of Loans for Affected Euro-Dollar Loans................................ 55
Section 8.05 Substitution of Lender.............................................................. 55
ARTICLE IX GUARANTEE................................................................................ 56
Section 9.01 Unconditional Guarantee............................................................. 56
Section 9.02 Guarantee Absolute.................................................................. 56
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Section 9.03 Waivers............................................................................. 58
Section 9.04 Subrogation......................................................................... 58
Section 9.05 Subordination....................................................................... 59
Section 9.06 Default; Remedies................................................................... 59
Section 9.07 Irrevocability...................................................................... 59
Section 9.08 Setoff.............................................................................. 60
Section 9.09 No Marshalling...................................................................... 60
Section 9.10 Enforcement; Amendments; Waivers.................................................... 60
Section 9.11 Successors and Assigns.............................................................. 60
Section 9.12 Reliance............................................................................ 61
Section 9.13 Survival............................................................................ 61
Section 9.14 Limitation of Subsidiary Guaranty................................................... 61
Section 9.15 Contribution........................................................................ 61
Section 9.16 Authorization; Other Agreements..................................................... 61
Section 9.17 Additional Guarantors............................................................... 63
Section 9.18 Collateral.......................................................................... 63
Section 9.19 Costs and Expenses.................................................................. 63
Section 9.20 Waiver of Consequential Damages..................................................... 63
ARTICLE X MISCELLANEOUS............................................................................ 63
Section 10.01 Notices............................................................................. 63
Section 10.02 No Waivers.......................................................................... 64
Section 10.03 Expenses; Taxes; Indemnification.................................................... 64
Section 10.04 Sharing of Set-Offs................................................................. 67
Section 10.05 Amendments and Waivers.............................................................. 68
Section 10.06 Successors and Assigns.............................................................. 68
Section 10.07 Collateral.......................................................................... 70
Section 10.08 New York Law........................................................................ 70
Section 10.09 Submission to Jurisdiction; Service of Process...................................... 71
Section 10.10 Waiver of Trial by Jury............................................................. 71
Section 10.11 Counterparts........................................................................ 72
Section 10.12 Confidentiality..................................................................... 72
Section 10.13 Survival of Warranties.............................................................. 72
Section 10.14 Severability........................................................................ 72
Section 10.15 Captions............................................................................ 72
iii
EXHIBITS
Exhibit A Form of Collateral Sharing Agreement
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Pledge and Security Agreement
Exhibit D Form of Notice of Borrowing
Exhibit E Form of Note
Exhibit F Form of Notice of Conversion/Continuation
Exhibit G Guarantor Joinder Agreement
SCHEDULES
Schedule I Lending Offices
Schedule II Commitments
Schedule 1.01(a) Material Real Property
Schedule 1.01(b) Westvaco and Xxxxxxx Coal Handling Facilities
Schedule 4.04 Ownership of Subsidiaries
Schedule 4.14 Insurance
Schedule 4.15 Labor Matters
Schedule 4.18 Environmental Matters
Schedule 5.04(a)(ii) Existing Debt
Schedule 5.04(b)(ii) Existing Liens
Schedule 5.04(b)(iv) Existing Letters of Credit
Schedule 5.04(c) Existing Investments
Schedule 5.04(d)(x) Permitted Sale and Leaseback Transactions
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as of
November 26, 2002 among XXXXXX ENERGY COMPANY (the "Borrower"), each domestic
Subsidiary of the Borrower listed on the signature pages hereof as Guarantors or
that becomes a party hereto pursuant to Section 9.17 hereof (individually
referred to herein as a "Guarantor" and collectively, on a joint and several
basis, as the "Guarantors"), the undersigned lenders (together with each lender
which becomes a Lender hereunder pursuant to Section 10.06 (collectively the
"Lenders")), CITICORP USA, INC., as administrative agent for the Lenders (in
such capacity "Administrative Agent"), and as collateral agent for the Secured
Parties (as defined below) (in such capacity, the "Collateral Agent"), PNC BANK,
NATIONAL ASSOCIATION, as syndication agent (the "Syndication Agent"), and
WACHOVIA BANK, NATIONAL ASSOCIATION, as documentation agent (the "Documentation
Agent"), amends and restates in its entirety the Existing Credit Agreement (as
defined below).
WHEREAS, the Borrower is currently the borrower under a credit agreement
dated as of November 30, 2000, with A.T. Xxxxxx Coal Company, Inc., as
guarantor, Citibank, N.A., as administrative agent, PNC Bank, National
Association, as syndication agent, and Wachovia Bank, National Association, as
documentation agent (as amended prior to the date hereof, the "Existing Credit
Agreement");
WHEREAS, Citibank, N.A. in its capacity as Administrative Agent has
assigned all of its rights and obligations under the Existing Credit Agreement
and the Existing Fee Letter (as defined below) to Citicorp USA, Inc.;
WHEREAS, it is the intent of the parties hereto that this Agreement does
not constitute a novation of the rights, obligations and liabilities of the
respective parties (including the Obligations) existing under the Existing
Credit Agreement or evidence payment of all or any of such obligations and
liabilities and such rights, obligations and liabilities shall continue and
remain outstanding under this Agreement, and that this Agreement amends and
restates in its entirety the Existing Credit Agreement;
WHEREAS, the Administrative Agent, the Collateral Agent and the
Administrative Agent under, and as defined in, the 364-Day Credit Agreement (as
defined below) intend to enter into a Collateral Sharing Agreement (the
"Collateral Sharing Agreement") in substantially the form of Exhibit A hereto,
providing, among other things, for the terms under which the Collateral (as
defined below) is to be shared among the Secured Parties (as defined below);
WHEREAS, the approval of the Required Lenders under the Existing Credit
Agreement is required for the effectiveness of this Agreement; and
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The following terms, as used herein, have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"364-Day Credit Agreement" means the Amended and Restated 364-Day
Credit Agreement, dated as of November 26, 2002, among the Borrower, the
Guarantors, the lenders party thereto, the Administrative Agent and other
agents party thereto.
"364-Day Credit Agreement Lender" means a Lender (as defined in the
364-Day Credit Agreement).
"364-Day Loans" means Loans (as defined in the 364-Day Credit
Agreement).
"Administrative Agent" has the meaning assigned to it in the recitals
hereto, provided, however, that for the purposes of Article VII (other than
Section 7.01) and Article X (other than Section 10.05), it shall also
include the Collateral Agent.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person. The term "control" (including the terms "controlled by" or
"under common control with") means the possession, direct or indirect, of
the power to vote 50% or more of the securities having ordinary voting
power for the election of directors of such Person or to direct or cause
the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise.
"Applicable Lending Office" means, with respect to each Lender, its
Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means, for any Type of Loan, an interest rate per
annum equal at all times during each period set forth below to the interest
rate set forth opposite such period and under such Type of Loan:
PERIOD BASE RATE LOANS EURODOLLAR LOANS
----------------------------------------------------------------------
Level I Period 1.25% 2.25%
----------------------------------------------------------------------
Level II Period 1.50% 2.50%
----------------------------------------------------------------------
Level III Period 2.00% 3.00%
----------------------------------------------------------------------
Level IV Period 2.50% 3.50%
----------------------------------------------------------------------
"Applicable Unused Commitment Fee Rate" means a rate per annum equal
at all times during each period set forth below to the rate set forth
opposite such period:
APPLICABLE UNUSED
PERIOD COMMITMENT FEE RATE
----------------------------------------------------
Level I Period 0.50%
----------------------------------------------------
Level II Period 0.50%
----------------------------------------------------
Level III Period 0.50%
----------------------------------------------------
Level IV Period 0.75%
----------------------------------------------------
"Approved Deposit Account" has the meaning specified in the Pledge and
Security Agreement.
2
"Asset Sale" has the meaning set forth in Section 5.04(d).
"Assignee" has the meaning set forth in Section 10.03(d).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit B.
"AT Guaranty" means the obligations of AT Xxxxxx under the Subsidiary
Guaranty.
"AT Xxxxxx" means A.T. Xxxxxx Coal Company, Inc.
"Bankruptcy Code" means title 11, United States Code.
"Base Rate" means, for any day, a rate per annum equal to the
Applicable Margin for Base Rate Loans plus the higher of:
(i) the rate of interest publicly announced by Citibank in New York
City from time to time as its base rate; and
(ii) the sum of one-half percent (1/2%) plus the Federal Funds Rate
for such day.
"Base Rate Loan" means a Loan to be made by a Lender pursuant to
Section 2.01 as a Base Rate Loan in accordance with the applicable Notice
of Borrowing or pursuant to Article VIII.
"Borrower" has the meaning set forth in the preamble to this
Agreement.
"Borrowing" has the meaning set forth in Section 1.03.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to notices, determinations, fundings and payments in connection
with the Eurodollar Rate or any Eurodollar Rate Loans, a day on which
dealings in Dollar deposits are also carried on in the London interbank
market.
"Capital Expenditures" means, for any Person for any period, the
aggregate of amounts that would be reflected as additions to property,
plant or equipment on a consolidated balance sheet of such Person and its
Subsidiaries prepared in conformity with GAAP, excluding interest
capitalized during construction and any capitalized non-cash liabilities
assumed.
"Capital Lease" means, with respect to any Person, any lease of, or
other arrangement conveying the right to use, property by such Person as
lessee that would be accounted for as a capital lease on a balance sheet of
such Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any Person, the
capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capital Leases.
"Cash Collateral Account" has the meaning specified in the Pledge and
Security Agreement.
"Cash Equivalents" means (a) securities issued or fully guaranteed or
insured by the United States government or any agency thereof, (b)
certificates of deposit, eurodollar time
3
deposits, overnight bank deposits and bankers' acceptances of any
commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or
agencies (fully protected against currency fluctuations) that, at the time
of acquisition, are rated at least "A-1" by S&P or "P-1" by Xxxxx'x, (c)
commercial paper of an issuer rated at least "A-1" by S&P or "P-1" by
Xxxxx'x and (d) shares of any money market fund that (i) has at least 95%
of its assets invested continuously in the types of investments referred to
in clauses (a), (b) and (c) above, (ii) has net assets of not less than
$500,000,000 and (iii) is rated at least "A-1" by S&P or "P-1" by Xxxxx'x;
provided, however, that the maturities of all obligations of the type
specified in clauses (a), (b) and (c) above shall not exceed 180 days.
"Citibank" means Citibank, N.A.
"Citicorp" means Citicorp USA, Inc.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by any Loan Party in or upon which
a Lien is granted under any Collateral Document.
"Collateral Documents" means the Pledge and Security Agreement, the
Mortgages, the Deposit Account Control Agreements, the Control Account
Agreements and any other document executed and delivered by a Loan Party
pursuant to this Agreement or any Collateral Document granting a Lien on
any of its property to secure payment of the Secured Obligations.
"Commitment" has the meaning set forth in Section 2.01.
"Consolidated Debt" means at any date the total Debt of the Borrower
and its Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for any period, an amount equal to (a) Consolidated Net Income
for such period plus (b) the sum of, in each case to the extent deducted in
the calculation of such Consolidated Net Income but without duplication,
(i) any income tax expense, (ii) Consolidated Interest Expense, (iii)
losses from extraordinary items, (iv) depreciation, depletion, and
amortization of intangibles or financing or acquisition costs, and (v) all
other non-cash charges and non-cash losses for such period minus (c) the
sum of, in each case to the extent added in the calculation of such
Consolidated Net Income but without duplication, (i) any income tax
benefit, (ii) interest income (excluding interest income already netted
from the definition of Consolidated Interest Expense), (iii) gains from
extraordinary items for such period, (iv) any aggregate net gain (but not
any aggregate net loss) from the sale, exchange or other disposition of
capital assets currently employed in the trade or business of the Borrower
and its Subsidiaries, and (v) any other non-cash gains or non-cash items.
"Consolidated Interest Coverage Ratio" means, with respect to the
Borrower and its Subsidiaries for any period, the ratio of Consolidated
EBITDA to Consolidated Interest Expense for such period.
"Consolidated Interest Expense" means, for the Borrower and its
Subsidiaries for any period, total interest expense (net of interest income
from overnight deposits and deposits held as cash collateral for letters of
credit) for such period determined on a consolidated basis in
4
conformity with GAAP and including, in any event, interest capitalized
during construction for such period.
"Consolidated Net Income" means, for any period, the net income (or
loss) of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis in conformity with GAAP.
"Consolidated Tangible Net Worth" means at any date the stockholders'
equity of the Borrower and its Subsidiaries less their Intangible Assets,
all determined as of such date on a consolidated basis in conformity with
GAAP. For purposes of this definition "Intangible Assets" means the amount
(to the extent reflected in determining such consolidated stockholders'
equity) of (i) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business
made within twelve months after the acquisition of such business) in the
book value of any asset owned by the Borrower or a Subsidiary, and (ii) all
unamortized debt discount and expense, unamortized deferred charges
(excluding longwall-related deferred charges), goodwill, patents,
trademarks, service marks, trade names, copyrights, organization expenses
and other intangible items.
"Constituent Documents" means, with respect to any Person, (a) the
articles of incorporation, certificate of incorporation or certificate of
formation (or the equivalent organizational documents) of such Person, (b)
the by-laws, operating agreement (or the equivalent governing documents) of
such Person and (c) any document setting forth the manner of election and
duties of the directors or managing members of such Person (if any) and the
designation, amount or relative rights, limitations and preferences of any
class or series of such Person's Stock.
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental
Law as hazardous, toxic, a contaminant or a pollutant or by other words of
similar meaning or regulatory effect, including any petroleum or
petroleum-derived substance or waste, asbestos or polychlorinated
biphenyls.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture,
mortgage, deed of trust or other instrument (excluding a Loan Document) to
which such Person is a party or by which it or any of its property is bound
or to which any of its property is subject.
"Control Account Agreement" has the meaning specified in the Pledge
and Security Agreement.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower, are treated as a
single employer for federal income tax purposes under Section 4l4(b) or
414(c) of the Code.
"Convert," "Conversion" and "Converted" each refers to a conversion of
a Loan of one Type into a Loan of another Type pursuant to Section 2.05.
"Customary Permitted Liens" means, with respect to any Person, any of
the following:
5
(a) Liens with respect to the payment of taxes, assessments or
governmental charges or levies in each case that are not yet due
and payable or that are being contested in good faith by
appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to
the extent required by GAAP;
(b) Liens of landlords arising by statute and liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and
other liens imposed by law or pursuant to customary reservations
or retentions of title arising in the ordinary course of business
for amounts not yet due and payable or that are being contested
in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being
maintained to the extent required by GAAP;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance or other types of social security benefits or to secure
the performance of bids, tenders, statutory obligations, sales,
leases, contracts (other than for the repayment of borrowed
money) and surety, appeal, customs, performance or
return-of-money bonds and other similar obligations;
(d) any matters that are or would be shown on an accurate survey, any
encumbrances arising by reason of zoning restrictions, any and
all matters and exceptions to title that would be shown on a
title insurance commitment or in a lawyer's title opinion
(excluding monetary liens), including without limitation, any
easements, licenses, defects or irregularities in title,
reservations (including severances, leases or reservations of
oil, gas, coal, minerals or water rights), covenants,
rights-of-way, utility easements, building restrictions and other
similar encumbrances on title to or on the use of real property
not materially interfering with the ordinary conduct of the
business conducted and proposed to be conducted at such real
property;
(e) encumbrances arising under leases or subleases of property that
do not, in the aggregate, interfere with the ordinary conduct of
the business conducted and proposed to be conducted at such
property;
(f) any interest of title of a lessor under, and liens arising from
financing statements with respect to a lessor's rights in and to
personal property leased to such Person in the ordinary course of
such Person's business;
(g) normal customary rights of setoff in favor of banks;
(h) Liens of sellers of goods under Article 2 of the UCC; and
(i) Liens of a collection bank under Section 4-210 of the UCC.
"Debt" of any Person means at any date, without duplication, (i) all
indebtedness of such Person for borrowed money which would be classified as
a liability of such Person in accordance with GAAP on such Person's balance
sheet, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments (except for notes relating to
self-insurance programs of the Borrower and/or its Subsidiaries which are
not classified as current liabilities of the Borrower or any of its
Subsidiaries) which would be classified as a liability of such Person in
accordance with GAAP on such Person's balance sheet, (iii) all obligations
of such Person to pay the deferred purchase price of property or services,
except trade accounts payable arising in the
6
ordinary course of business, (iv) the outstanding attributed principal
portion of all obligations of such Person (a) as lessee under Capital
Leases and (b) in respect of any financing obtained by such Person through
an asset-backed securitization program, (v) all obligations of such Person
to purchase securities (or other property) which arise out of or in
connection with the sale of the same or substantially similar securities or
property, which obligations or any portion thereof may, in accordance with
their terms, become due on or before the Termination Date, (vi) all
reimbursement and other obligations with respect to drafts or other
drawings under letters of credit, bankers' acceptances, Guarantees, surety
bonds, performance bonds, bid bonds and performance bonds (to the extent
unreimbursed), (vii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (viii) all
Debt of others Guaranteed by such Person, and (ix) Production Payments to
the extent the obligations of such Person with respect thereto would be
classified as a liability of such Person in accordance with GAAP on such
Person's balance sheet. The Debt of any Person shall include the Debt of
any partnership or joint venture in which such Person is a general partner
or a joint venturer, but only to the extent to which there is recourse to
such Person for payment of such Debt. The Debt of any Person shall not
include obligations of such Person relating to deposits made by others as
collateral security for the payment or performance of Contractual
Obligations and held by such Person in separate, segregated accounts.
"Debt Issuance" means (i) the incurrence of Debt of the type specified
in clause (i) or (ii) of the definition of "Debt" by the Borrower or any of
its Subsidiaries and (ii) a Permitted Asset-Backed Financing.
"Default" means any condition or event specified in Section 6.01 which
with the giving of notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Deposit Account" has the meaning specified in the Pledge and Security
Agreement.
"Deposit Account Bank" has the meaning specified in the Pledge and
Security Agreement.
"Deposit Account Control Agreement" has the meaning specified in the
Pledge and Security Agreement.
"Designating Lender" has the meaning set forth in Section 10.06(f).
"Dollars" and the sign "$" each mean the lawful money of the United
States of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law
to close.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth on the Schedule I hereof or such other office as
such lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary of the Borrower organized
under the laws of any state of the United States of America or the District
of Columbia.
"Effective Date" means November 26, 2002; provided that all the
conditions in Section 3.01 and Section 3.02 shall have been satisfied or
waived.
7
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, the District of Columbia, or any state thereof,
and having a combined capital and surplus of at least $100,000,000; (ii) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economical Cooperation and Development (the
"OECD"), or a political subdivision of any such country and having a
combined capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the OECD;
(iii) any Person engaged in the business of lending and that is an
Affiliate of a Lender or of a Person of which a Lender is a subsidiary;
provided that such Person is not a competitor of the Borrower or any of its
Subsidiaries; and (iv) any other Person approved by the Administrative
Agent and the Borrower.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment, to emissions,
discharges or releases of Contaminants into the environment, including,
without limitation, ambient air, surface water, groundwater, or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Contaminants, or to
Remedial Action.
"Environmental Liabilities and Costs" means, with respect to any
Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages,
costs and expenses (including all fees, disbursements and expenses of
counsel, experts and consultants and costs of investigation and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of
any claim or demand by any other Person, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute
and whether arising under any Environmental Law, Permit, order or agreement
with any Governmental Authority or other Person, in each case relating to
any environmental, health or safety condition or to any Release or
threatened Release and resulting from the past, present or future
operations of, or ownership of property by, such Person or any of its
Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"Equity Issuance" means the issue or sale of any Stock of the Borrower
or any Subsidiary of the Borrower to any Person other than the Borrower or
any Subsidiary of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Borrower or any of its Subsidiaries within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"ERISA Event" means (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, unless the 30-day notice requirement
with respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (iii)
the cessation of operations at a facility by any member of the Controlled
Group in the circumstances described in Section 4062(e) of ERISA; (iv) the
withdrawal by any member of the Controlled Group from a
8
Plan during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (v) the failure by any member of the
Controlled Group to make a payment to a Plan required under Section
302(f)(1) of ERISA, which Section imposes a lien for failure to make
required payments; (vi) the adoption of an amendment to a Plan requiring
the provision of security to such Plan, pursuant to Section 307 of ERISA;
or (vii) the institution by the PBGC of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition which, in the reasonable judgment of the Borrower, might
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or affiliate located at its address set forth on Schedule I hereof
or such other office, branch or affiliate of such Lender as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan to be made by a Lender pursuant to
Section 2.01 as a Euro-Dollar Loan in accordance with the applicable Notice
of Borrowing.
"Euro-Dollar Rate" means, for any Euro-Dollar Loan for any Interest
Period, a rate per annum equal to the sum of the appropriate Applicable
Margin plus the applicable LIBO Rate.
"Euro-Dollar Reserve Percentage" of any Lender for the Interest Period
for any Euro-Dollar Loan means the reserve percentage applicable during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Lender with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning set forth in Section 6.01.
"Fair Market Value" means, with respect to any asset of the Borrower
or any Subsidiary at any date, the open market cash purchase price that an
informed and willing purchaser would pay for such asset in an arm's length
transaction to a willing and informed owner under no compulsion to sell.
"Federal Funds Rate" means, for any day (the "accrual date"), the rate
per annum (rounded upward, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on the accrual date, as published by the Federal Reserve Bank
of New York on the Domestic Business Day next succeeding such day, provided
that (i) if the accrual date is not a Domestic Business Day, the Federal
Funds Rate for the accrual date shall be such rate on such transactions on
9
the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for
the accrual date shall be the average rate quoted to each of the Reference
Banks on the accrual date (or next preceding Domestic Business Day) on such
transactions as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the United
States Federal Reserve System, or any successor thereto.
"Fee Letters" shall mean (i) the letter dated as of October 23, 2000,
addressed to the Borrower from Citibank and Xxxxxxx Xxxxx Xxxxxx Inc. and
accepted by the Borrower on October 25, 2000, with respect to certain fees
to be paid from time to time to Citibank (which later assigned all of its
rights and obligations thereunder to Citicorp) and Xxxxxxx Xxxxx Barney
Inc. (the "Existing Fee Letter") and (ii) the letter dated as of November
__, 2002, addressed to the Borrower from the Administrative Agent and
Xxxxxxx Xxxxx Xxxxxx Inc. and accepted by the Borrower on November __,
2002, with respect to certain fees to be paid from time to time to the
Administrative Agent and Xxxxxxx Xxxxx Barney Inc.
"Financial Statements" means the financial statements of the Borrower
and its Subsidiaries delivered in accordance with Section 4.05 and Section
5.01.
"Fiscal Quarter" means each of the three month periods ending on March
31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on December 31.
"GAAP" means generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in
Section 4.05(a). The parties hereto acknowledge that generally accepted
accounting principles may permit the Borrower to make certain elections or
may otherwise change from time to time (such changed accounting principles
being referred to herein as the "New GAAP"). The Borrower agrees that in
the event the Borrower adopts the New GAAP, the Borrower shall promptly
thereafter notify the Administrative Agent of such adoption and furnish to
the Administrative Agent such explanations and/or reconciling statements,
if any, as the Administrative Agent or any Lender shall reasonably request.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services,
to take-or-pay, or to maintain financial statement conditions or otherwise)
or (ii) entered into for the purpose of assuring in any other manner the
obligee of such Debt of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided that the
term Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
10
"Guarantied Parties" means the Lenders, the Administrative Agent and
any other beneficiary of the Subsidiary Guaranty pursuant to Article IX
herein.
"Guarantor" and "Guarantors" have the meanings set forth in the
preamble hereof.
"Xxxxxx Case" means post trial proceedings, including appeals, with
respect to the August 1, 2002 jury verdict in favor of Xxxxxx Mining Corp.,
et al., against the Borrower.
"Hedging Contracts" means all interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and interest rate
insurance, foreign exchange contracts, currency swap or option agreements,
forward contracts, commodity swap, purchase or option agreements, other
commodity price hedging arrangements, and all other similar agreements or
arrangements designed to alter the risks of any Person arising from
fluctuations in interest rates, currency values or commodity prices.
"Interest Period" means, with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing and ending
approximately one, two, three or six months thereafter, or, if available by
all of the Lenders, ending nine months thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the immediately preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) below, end on
the last Euro-Dollar Business Day of a calendar month; and
(c) the Borrower shall not elect any Interest Period that would
otherwise extend beyond the Termination Date.
"Inventory" has the meaning specified in the Pledge and Security
Agreement.
"Investment" means, with respect to any Person, (a) any purchase or
other acquisition by such Person of (i) any Security issued by, (ii) a
beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by such Person of
all or a significant part of the assets of a business conducted by any
other Person, or all or substantially all of the assets constituting the
business of a division, branch or other unit operation of any other Person
(other than an acquisition of assets constituting a Capital Expenditure),
(c) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses (including deferred
longwall panel costs), prepaid royalties, accounts receivable and similar
items made or incurred in the ordinary course of business) or capital
contribution by such Person to any other Person, including all Debt of any
other Person to such Person arising from a sale of property by such Person
other than in the ordinary course of its business, and (d) any Guarantee
incurred by such Person in respect of Debt of any other Person.
11
"Involuntary Disposition" means (a) any loss of or damage to property
of the Borrower or any of its Subsidiaries on or after the date of this
Agreement or (b) any taking of property of the Borrower or any of its
Subsidiaries by any Governmental Authority.
"Lender" means each lender listed on the signature pages hereof and
each Eligible Assignee that shall become a party hereto pursuant to Section
10.06.
"Lending Office" means, as to any Lender, its Domestic Lending Office
or its Euro-Dollar Lending Office, as the context may require.
"Level I Period" has the meaning set forth in Section 1.04.
"Level II Period" has the meaning set forth in Section 1.04.
"Level III Period" has the meaning set forth in Section 1.04.
"Level IV Period" has the meaning set forth in Section 1.04.
"LIBO Rate" means, for the Interest Period for each Euro-Dollar Loan
comprising part of the same Borrowing, an interest rate per annum (rounded
upward, if necessary, to the nearest whole multiple of 1/100 of 1%) that
appears on the Dow Xxxxx Markets (Telerate) page 3750 (or such other
comparable page as may, in the opinion of the Administrative Agent, replace
such page for the purpose of displaying such rate) with maturities
comparable to such Interest Period at approximately 11:00 A.M. (London
time) two Euro-Dollar Business Days prior to the first day of such Interest
Period. In the event that such a rate does not appear on page 3750 of the
Dow Xxxxx Telerate Screen, the LIBO Rate shall be the average (rounded
upwards, if necessary, to the nearest 1/100 or 1%) of the rates per annum
at which dollar deposits in immediately available funds are offered to each
of the Reference Banks in the London interbank market as at or about 11:00
A.M. (New York City time) two (2) Euro-Dollar Business Days prior to the
beginning on such Interest Period in an amount substantially equal to such
Reference Bank's Euro-Dollar Loan comprising part of such Borrowing, in
each case, to be outstanding during such Interest Period and for a period
equal to such Interest Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien on any asset which it has acquired
or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention
agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan made by a Lender
pursuant to Section 2.01. "Loans" means Base Rate Loans or Euro-Dollar
Loans or any combination of the foregoing.
"Loan Documents" means, collectively, this Agreement, the Notes (if
any), the Subsidiary Guaranty, the Fee Letters, the Collateral Documents
and each certificate, agreement or document executed by a Loan Party and
delivered to the Administrative Agent or any Lender in connection with or
pursuant to any of the foregoing, and all amendments thereto and
substitutions and replacements therefor and modifications thereof.
"Loan Party" means each of the Borrower, each Guarantor and each
Domestic Subsidiary of the Borrower that executes and delivers a Loan
Document.
12
"Material Adverse Change" means any material and adverse change in the
business, condition (financial or otherwise) or results of operations or
prospects of the Borrower and its Subsidiaries (taken as a whole).
"Material Adverse Effect" means an effect that results in or causes a
material adverse effect (i) on the business, condition (financial or
otherwise), results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, which could reasonably be expected to
materially and adversely affect the ability of the Borrower or the
Guarantors to perform their respective obligations under the Loan Documents
at any time up to and including the Termination Date, or (ii) on the
legality, validity or enforceability of this Agreement or any of the other
Loan Documents.
"Material Plan" has the meaning set forth in Section 6.01(g).
"Material Real Property" means those preparation plants identified on
Schedule 1.01(a) hereto.
"Moody's" means Xxxxx'x Investors Service, Inc., or its successors.
"Mortgages" means the mortgages, deeds of trust or other real estate
security documents made or required herein to be made by the Borrower or
any other Loan Party.
"Multiemployer Plan" has the meaning set forth in Sections 4201 et
seq. of ERISA.
"Net Cash Proceeds" means proceeds received by the Borrower or any of
its Subsidiaries after the Effective Date in cash or Cash Equivalents from
any (a) Asset Sale, other than an Asset Sale permitted under clauses (i)
through (v), (vii) and (viii) of Section 5.04(d), net of (i) the reasonable
cash costs of sale, assignment or other disposition, (ii) taxes paid or
reasonably estimated to be payable as a result thereof and (iii) any amount
required to be paid or prepaid on Debt (other than the Obligations) secured
by the assets subject to such Asset Sale; provided, however, that evidence
of each of (i), (ii) and (iii) above is provided to the Administrative
Agent in form and substance satisfactory to it, (b) Property Loss Event or
(c)(i) Equity Issuance (other than any such issuance of common Stock of the
Borrower occurring in the ordinary course of business to any director,
member of the management or employee of the Borrower or its Subsidiaries in
connection with an employee incentive plan) or (ii) any Debt Issuance
(other than Debt permitted under clauses (i) through (vii) of Section
5.04(a), in each case net of brokers' and advisors' fees and other costs
incurred in connection with such transaction; provided, however, that in
the case of this clause (c), evidence of such costs is provided to the
Administrative Agent in form and substance reasonably satisfactory to it.
"Note" has the meaning set forth in Section 2.04(c).
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Obligations" means the Loans and all other amounts, obligations,
covenants and duties owing by the Borrower to the Administrative Agent, any
Lender, any Affiliate of any of them or any Indemnitee, of every type and
description (whether by reason of a loan, guaranty, indemnification, or
otherwise), present or future, arising under this Agreement, any other Loan
Document, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired and whether or not evidenced by any
note, guaranty or other instrument or for the payment of money,
13
including all fees, interest, charges, expenses, attorneys' fees and
disbursements, and other sums chargeable to the Borrower under this
Agreement, or any other Loan Document.
"Other Taxes" has the meaning set forth in Section 10.03(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permit" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Requirement of Law.
"Permitted Asset-Backed Financing" means a financing of not more than
$150,000,000 in the aggregate principal amount at any one time outstanding
obtained by the Borrower or any of its Subsidiaries through an asset-backed
securitization program provided by an arranger selected by the Borrower or
the relevant Subsidiary and reasonably acceptable to the Administrative
Agent.
"Permitted Joint Venture" means a Person:
(a) that is a corporation, limited liability company, limited
partnership, joint venture or similar limited liability legal
entity hereafter formed or entered into by the Borrower or any of
its Subsidiaries with another Person in order to conduct a common
venture or enterprise;
(b) that is engaged in the same business (or any business or
activities which are substantially similar, related or incidental
thereto) as the Borrower or such Subsidiary; and
(c) in respect of which the maximum amount of all obligations (in
each case whether contingent or otherwise), including any
contractually binding commitment to make future capital
contributions, assumed by any Loan Party in respect thereof can
be quantified.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i) maintained by the Borrower
or any subsidiary for employees of the Borrower or any Subsidiary or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer, at least one of which is
not a member of the Controlled Group, makes contributions and to which the
Borrower or any Subsidiary is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions.
"Pledge and Security Agreement" means an agreement, in substantially
the form of Exhibit C (Form of Pledge and Security Agreement), executed by
the Borrower and each Guarantor.
"Pledged Notes" has the meaning specified in the Pledge and Security
Agreement.
14
"Pledged Stock" has the meaning specified in the Pledge and Security
Agreement.
"Power Mountain Preparation Plant and Reserves" means the preparation
plant and related property owned by Borrower's subsidiary Power Mountain
Coal Company, and the land and reserves owned by Borrower's subsidiaries
Xxxxx East Development Co. and Demeter Land Company, all affiliated with
the Xxxxxxxx Energy Resource Group and located in Xxxxxxxx County, West
Virginia.
"Production Payment" means any arrangement providing for the sale,
transfer or other disposition of (a) minerals (including coal and
hydrocarbons) until the transferee thereof shall realize therefrom a
specified amount of money (however determined) or a specified amount of
such minerals (however determined) or (b) any interest in minerals
(including coal and hydrocarbons) of the character commonly referred to as
a "production payment".
"Property Loss Event" means (a) any loss of or damage to property of
the Borrower or any of its Subsidiaries on or after the date of this
Agreement that results in the receipt by such Person of proceeds of
insurance (excluding, in any event, proceeds of business interruption and
liability insurance) in excess of $5,000,000 individually or $10,000,000 in
the aggregate or (b) any taking of property of the Borrower or any of its
Subsidiaries by any Governmental Authority that results in the receipt by
such Person of a compensation payment in respect thereof in excess of
$5,000,000 individually or $10,000,000 in the aggregate.
"Projections" means those quarterly financial projections to be
delivered to the Lenders by the Borrower.
"Public Debt" means the notes issued by the Borrower pursuant to the
Indenture, dated as of February 18, 1997, between Fluor Corp. and Bankers
Trust Company, as Trustee, as amended by the First Supplemental Indenture,
dated as of February 9, 2001.
"Reference Banks" means Citibank and certain other Lenders to be
determined by the Administrative Agent, with the approval of the Borrower.
"Register" shall have the meaning set forth in Section 2.04(a).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reinvestment Deferred Amount" means, with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by any Loan Party in
connection therewith that are not initially applied to prepay the Loans
pursuant to Section 2.11(b) as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event" has the meaning set forth in Section 2.09(b).
"Reinvestment Notice" means a written notice executed by a Responsible
Officer of the Borrower stating that no Default or Event of Default has
occurred and is continuing and that the Borrower (directly or indirectly
through one of its Subsidiaries) intends and expects to use all or a
specified portion of the Net Cash Proceeds of a Property Loss Event to
effect repairs or purchase replacement assets.
15
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less
any amount expended or required to be expended pursuant to a Contractual
Obligation entered into prior to the relevant Reinvestment Prepayment Date
to acquire replacement assets useful in the Borrower's business or, in the
case of a Property Loss Event, to effect repairs or purchase replacement
assets.
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
Event, the earlier of (a) the date occurring 180 days after such
Reinvestment Event and (b) the date that is five Domestic Business Days
after the date on which the Borrower shall have notified the Administrative
Agent of the Borrower's determination not to effect repairs or purchase
replacement assets with all or any portion of the relevant Reinvestment
Deferred Amount.
"Release" means, with respect to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration, in each case, of any Contaminant into the
environment or into or out of any property owned by such Person, including
the movement of Contaminants through or in the air, soil, surface water,
ground water or property.
"Remedial Action" means all actions required to (a) clean up, remove,
treat or in any other way address the Release of any Contaminant into the
environment, (b) prevent the Release or threat of Release or minimize the
further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or the environment or (c) perform
pre-remedial studies and investigations and post-remedial monitoring and
care.
"Required Lenders" means at any time at least four (4) Lenders holding
at least 50% of the aggregate unpaid principal amount of the Loans or, if
no such Loans shall be outstanding, having at least 50% of the aggregate
amount of the Commitments.
"Requirement of Law" means, with respect to any Person, the common law
and all federal, state, local and foreign laws, rules and regulations,
orders, judgments, decrees and other legal requirements or determinations
of any Governmental Authority or arbitrator, applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer" means, with respect to any Person, any of the
principal executive officers, managing members or general partners of such
Person but, in any event, with respect to financial matters, the chief
financial officer, treasurer or controller of such Person.
"Restricted Payment" means (a) any dividend, distribution or any other
payment whether direct or indirect, on account of any Stock or Stock
Equivalents of the Borrower or any of its Subsidiaries now or hereafter
outstanding and (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of
any Stock or Stock Equivalents of the Borrower or any of its Subsidiaries
now or hereafter outstanding.
"Secured Obligations" means, (a) in the case of the Borrower, (i) the
Obligations and (ii) the Obligations (as defined in the 364-Day Credit
Agreement), and, (b) in the case of any other Loan Party, (i) the
obligations of such Loan Party under the Subsidiary Guaranty and the other
Loan Documents to which it is a party and (ii) the obligations of such Loan
Party under the Subsidiary Guaranty (as defined in the 364-Day Credit
Agreement) and the other Loan Documents (as defined in the 364-Day Credit
Agreement) to which it is a party.
16
"Secured Parties" means the Lenders, the Administrative Agent, the
364-Day Credit Agreement Lenders, the Administrative Agent under, and as
defined in, the 364-Day Credit Agreement, and any other holder of any
Secured Obligation.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Debt, whether
secured, unsecured, convertible or subordinated, or any certificate of
interest, share or participation in, any temporary or interim certificate
for the purchase or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing, but shall not include any evidence of the
Obligations.
"S&P" means Standard and Poor's Ratings Group, a division of
XxXxxx-Xxxx Incorporated, or its successors.
"Share" means, with respect to each Lender, a fraction the numerator
of which is such Lender's Commitment and the denominator of which is the
aggregate amount of the Commitments (or, at any time after the Termination
Date, a fraction the numerator of which is the principal amount of such
Lender's Obligations and the denominator of which is the aggregate
principal amount of all the Obligations).
"Solvent" means, with respect to any Person, that the value of the
assets of such Person (at fair value) is, on the date of determination,
greater than the total amount of liabilities (including contingent and
unliquidated liabilities) of such Person as of such date and that, as of
such date, such Person is able to pay all liabilities of such Person as
such liabilities mature and does not have unreasonably small capital. In
computing the amount of contingent or unliquidated liabilities at any time,
such liabilities shall be computed at the amount that, in light of all the
facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"Special Purpose Financing Subsidiary" has the meaning set forth in
Section 5.04(b)(ix).
"SPV" has the meaning set forth in Section 10.06(f)(i).
"Stock" means shares of capital stock (whether denominated as common
stock or preferred stock) or other equivalents (regardless of how
designated) of or in a corporation or equivalent entity, whether voting or
non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to
purchase or subscribe for any Stock, whether or not presently convertible,
exchangeable or exercisable.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned or controlled by the
Borrower or one or more Subsidiaries, or by the Borrower and one or more
Subsidiaries.
"Subsidiary Guaranty" has the meaning set forth in Section 9.01.
"Taxes" shall have the meaning set forth in Section 10.03(b).
17
"Termination Date" means the earlier of (i) November 25, 2003, or (ii)
the date on which the Commitments shall have been reduced to zero pursuant
to Section 2.08, Section 2.09 or Section 6.01.
"Type" means, with reference to a Loan, a Base Rate Loan or a
Euro-Dollar Loan.
"UCC" has the meaning specified in the Pledge and Security Agreement.
"Voting Stock" means Stock of any Person having ordinary power to vote
in the election of members of the board of directors, managers, trustees or
other controlling Persons, of such Person (irrespective of whether, at the
time, Stock of any other class or classes of such entity shall have or
might have voting power by reason of the happening of any contingency).
"Westvaco and Xxxxxxx Coal Handling Facilities" mean those coal
handling facilities described on Schedule 1.01(b).
"Wholly-Owned Subsidiary" means, in respect of any Person, any
Subsidiary of such Person, all of the Stock of which (other than director's
qualifying shares, as may be required by law) is owned by such Person,
either directly or indirectly through one or more Wholly-Owned Subsidiaries
of such Person.
"Withdrawal Liability" has the meaning set forth in Sections 4201 et
seq. of ERISA.
Section 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP.
Section 1.03 Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Lenders to be made to the Borrower pursuant
to Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans and a "Base Rate Borrowing" is a Borrowing
comprised of Base Rate Loans).
Section 1.04 Pricing Levels. For purposes of this Agreement, the
following terms have the following meanings, subject to the concluding paragraph
of this Section 1.04:
"Level I Period" means a period during which the long-term senior
unsecured debt (or, if the Borrower's senior secured debt is rated by S&P
or Xxxxx'x, the senior secured debt) rating of the Borrower is equal to or
better than (i) BBB- by S&P and (ii) Baa3 by Xxxxx'x.
"Level II Period" means a period (other than a Level I Period) during
which the long-term senior unsecured debt (or, if the Borrower's senior
secured debt is rated by S&P or Xxxxx'x, the senior secured debt) rating of
the Borrower of the Borrower is equal to or better than (i) BB+ by S&P and
(ii) Ba1 by Xxxxx'x.
"Level III Period" means a period (other than a Level I Period or a
Level II Period) during which the long-term senior unsecured debt (or, if
the Borrower's senior secured debt is rated by S&P or Xxxxx'x, the senior
secured debt) rating of the Borrower is equal to or better than (i) BB by
S&P and (ii) Ba2 by Xxxxx'x.
18
"Level IV Period" means any period which is not a Level I Period, a
Level II Period or a Level III Period.
If, however, at any date the Borrower's long-term senior unsecured debt
(or, if the Borrower's senior secured debt is rated by S&P or Xxxxx'x, the
senior secured debt) is not rated by both S&P and Xxxxx'x, then a Level IV
Period shall apply.
The credit ratings to be used for purposes of this Section 1.04 are those
assigned to the long-term senior unsecured debt (or, if the Borrower's senior
secured debt is rated by S&P or Xxxxx'x, the senior secured debt) of the
Borrower without third-party credit enhancement. Any rating assigned to any
other debt of the Borrower shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
Section 1.05 Certain Terms.
(a) The words "herein," "hereof" and "hereunder" and similar words
refer to this Agreement as a whole, and not to any particular Article, Section,
subsection or clause in, this Agreement.
(b) References in this Agreement to an Exhibit, Schedule, Article,
Section, subsection or clause refer to the appropriate Exhibit or Schedule to,
or Article, Section, subsection or clause in this Agreement.
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. If the prior written consent of the
Required Lenders is required hereunder for an amendment, restatement, supplement
or other modification to any such agreement and such consent is not obtained,
references in this Agreement to such agreement shall be to such agreement as so
amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect at the time any such reference is
operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender" and "Administrative Agent" include their
respective successors.
ARTICLE II
THE CREDITS
Section 2.01 Commitments to Lend. During the period from and including
the Effective Date, to but not including the Termination Date, each Lender
severally agrees, on the terms and conditions set forth in this Agreement, to
lend to the Borrower pursuant to this Section 2.01 from time to time amounts
such that (i) the aggregate principal amount of Loans by such Lender at any one
time outstanding shall not exceed the amount set forth opposite such Lender's
name on Schedule II hereof or, if such Lender has entered into any Assignment
and Acceptance as set forth in the recorded Assignment and Acceptance, as such
amount may be reduced pursuant to Section 2.08 or Section 2.09 or assigned
pursuant to Section 10.06 (such Lender's "Commitment") and (ii) the aggregate
principal amount of Loans by all of the Lenders at any one time outstanding
shall not exceed the aggregate amount of all of their Commitments. Each
Borrowing under this Section 2.01 shall be in an aggregate principal amount of
$10,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing
may be in the
19
aggregate amount of the unused portion of the Commitments of all of the Lenders)
and shall be made from the several Lenders in accordance with their respective
Shares. Amounts required to be repaid pursuant to Section 2.09 shall not be
reborrowed, and amounts repaid pursuant to Section 8.02 shall not be reborrowed
except as provided therein. Except as otherwise provided in this Agreement, the
Borrower may borrow under this Section 2.01, repay, or, to the extent permitted
by Section 2.10, prepay Loans and reborrow at any time prior to but not
including the Termination Date under this Section 2.01.
Section 2.02 Notice of Borrowings.
(a) The Borrower shall give the Administrative Agent notice in the
form of Exhibit D (a "Notice of Borrowing") by telecopier, confirmed immediately
in writing, not later than (x) 11:00 A.M. (New York City time) on the date of
each Base Rate Borrowing, and (y) 12:00 noon (New York City time) on the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to be
Base Rate Loans or Euro-Dollar Loans;
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period; and
(v) the Borrower's long-term senior unsecured debt (or, if
the Borrower's senior secured debt is rated by S&P or Xxxxx'x, the
senior secured debt) ratings from S&P and Xxxxx'x in effect on the
date of such Borrowing.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select a Euro-Dollar Loan for any
Borrowing or with respect to the Conversion or continuance of any
Borrowing if the aggregate amount of such Borrowing or such Conversion
or continuance is less than $5,000,000; and
(ii) there shall be no more than five Interest Periods
relating to Borrowings consisting of Euro-Dollar Loans outstanding at
any time.
Section 2.03 Notice to Lenders; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of such Lender's
Share of such Borrowing.
(b) Not later than 2:00 P.M. (New York City time) on the date of each
Borrowing, each Lender shall (except as provided in subsection (c) of this
Section) make available its Share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 10.01. Unless the Administrative
Agent determines that any applicable condition specified in Article III has not
been satisfied, the Administrative
20
Agent will make the funds so received from the Lenders promptly available to the
Borrower at the Administrative Agent's aforesaid address.
(c) If any Lender makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Lender,
such Lender shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Lender to
the Administrative Agent as provided in subsection (b), or remitted by the
Borrower to the Administrative Agent as provided in Section 2.12, as the case
may be.
(d) Except as specifically provided in Section 8.01 to the contrary,
each Notice of Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing which the related Notice of Borrowing specifies is to
be comprised of Euro-Dollar Loans, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable condition set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Loan to be made by such Lender
as part of such Borrowing when such Loan, as a result of such failure, is not
made on such date.
(e) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's Share of such Borrowing,
which failure may constitute a breach of such Lender's obligations under this
Agreement, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (b) of this Section 2.03 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such share available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Loan as part of such Borrowing
for purposes of this Agreement.
(f) The failure of any Lender to make the Loan to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Loan on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on the date of any Borrowing.
Section 2.04 Register; Optional Notes.
(a) The Administrative Agent shall maintain a register for the
recordation of the names and addresses of the Lenders and the Commitment of and
the principal amount of the Loans owing to each Lender from time to time (the
"Register") and shall retain a copy of each assignment delivered to and accepted
by it. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent, and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
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(b) The Register maintained by the Administrative Agent shall include
a control account and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date, amount and tenor, as
applicable, of each Borrowing, the type of Borrowing and the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
and (iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender's share thereof.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from Loans owing to such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder. The Borrower agrees that upon notice by any Lender to the
Borrower (with a copy of such notice to the Administrative Agent) to the effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement, or otherwise) the Base Rate Loans or Euro-Dollar Loans
owing to, or to be made by, such Lender, the Borrower shall promptly execute and
deliver to such Lender a Note in the form of Exhibit E (each a "Note";
collectively, the "Notes"), registered in the name of such Lender, in a
principal amount equal to the aggregate principal amount of the Commitment of
such Lender; provided, however, that the execution and delivery of such Notes
shall not be a condition precedent to making of any Borrowing under this
Agreement.
Section 2.05 Voluntary Conversion or Continuation of Loans.
(a) The Borrower may on any Domestic Business Day, upon notice given
to the Administrative Agent not later than 12:00 noon (New York City time) on
the third Euro-Dollar Business Day prior to the date of the proposed conversion
or continuance (a "Notice of Conversion/Continuation"), in substantially the
form of Exhibit F, and subject to the provisions of Section 2.02(b) and Article
VIII, (1) Convert all Loans of one Type comprising the same Borrowing into Loans
of another Type and (2) upon the expiration of any Interest Period applicable to
Loans which are Euro-Dollar Loans, continue all (or, subject to Section 2.02(b)
and Article VIII, any portion of) such Loans as Euro-Dollar Rate Loans and the
succeeding Interest Period(s) of such continued Loans shall commence on the last
day of the Interest Period of the Loans to be continued; provided, however, that
any Conversion of any Euro-Dollar Loans into Base Rate Loans shall be made on,
and only on, the last day of an Interest Period for such Euro-Dollar Loans
unless the Borrower simultaneously pays all amounts required to be paid pursuant
to Section 10.03(d). Each such Notice of Conversion/Continuation shall, within
the restrictions specified above, specify (i) the date of such continuation or
Conversion, (ii) the Loans (or, subject to Section 2.02(b), any portion thereof)
to be continued or Converted, (iii) if such continuation is of, or such
Conversion is into, Euro-Dollar Loans, the duration of the Interest Period for
each such Loan, and (iv) in the case of a continuation of or a Conversion into a
Euro-Dollar Loan, that no Event of Default has occurred and is continuing.
(b) If upon the expiration of the then existing Interest Period
applicable to any Loan which is a Euro-Dollar Loan, the Borrower shall not have
delivered a Notice of Conversion/Continuation in accordance with this Section
2.05, then such Loan shall upon such expiration automatically be Converted to a
Base Rate Loan.
(c) After the occurrence of and during the continuance of an Event of
Default, the Borrower may not elect to have a Loan be made or continued as, or
Converted into, a Euro-Dollar Loan after the expiration of any Interest Period
then in effect for that Loan and any Euro-Dollar Loans then in effect shall
automatically be converted to a Base Rate Loan at the expiration of the then
existing Interest Period applicable to any such Euro-Dollar Rate Loan.
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Section 2.06 Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day. Such
interest shall be payable in arrears quarterly on the last day of each March,
June, September and December during such period and on such date as such Base
Rate Loan shall be Converted or paid in full.
(b) (i) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the applicable Euro-Dollar Rate. Such
interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
(ii) The Borrower shall pay to each Lender additional interest on
the unpaid principal amount of each Euro-Dollar Loan of such Lender,
from the date of such Loan until such principal amount is paid in
full, at an interest rate per annum equal at all times to the
remainder (rounded upwards, if necessary, to the next higher 1/100 of
1%) obtained by subtracting (i) the LIBO Rate for the Interest Period
for such Loan, from (ii) the rate obtained by dividing such LIBO Rate
by a percentage equal to 100% minus the Euro-Dollar Reserve Percentage
of such Lender for such Interest Period, payable on each date on which
interest is payable on such Loan. Such additional interest shall be
determined by such Lender and notified to the Borrower through the
Administrative Agent.
(c) Notwithstanding the rates of interest specified in this Section
2.06 or elsewhere herein, effective immediately upon the occurrence of an Event
of Default, and for as long thereafter as such Event of Default shall be
continuing, the principal balance of all Loans shall bear interest, payable on
demand, for each day from and including the date payment thereof was due, to but
excluding the date of actual payment, at a rate per annum equal to the sum of 2%
plus the higher of (i) the applicable interest rate then in effect for such day
or (ii) the Base Rate for such day.
(d) The Administrative Agent shall determine each interest rate
applicable (pursuant to this Agreement) to the Loans hereunder. The
Administrative Agent shall give prompt notice to the Borrower and the Lender by
telecopier of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
Section 2.07 Unutilized Commitment Fees. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders in accordance with their
respective Shares, an unused commitment fee at the Applicable Unused Commitment
Fee Rate on the daily average aggregate amount by which the Commitments exceed
the outstanding principal amount of Loans. Such unused commitment fee shall
accrue from and including the Effective Date or, in the case of any Lender that
becomes party hereto in accordance with Section 10.06, from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender,
to but excluding the Termination Date, and shall be payable (i) quarterly in
arrears on each March 31, June 30, September 30 and December 31 prior to the
Termination Date and (ii) on the Termination Date.
Section 2.08 Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' prior notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the respective Commitments of the Lenders in accordance
23
with their respective Shares; provided, however, that each partial reduction
shall be in an aggregate amount of not less than $2,000,000 or an integral
multiple of $500,000 in excess thereof, and provided, further, that any such
termination or commitment reduction shall be applied first, to the termination
of, or the reduction of Commitments (as defined in the 364-Day Credit Agreement)
under, the 364-Day Credit Agreement, and then, to the termination of, or the
reduction of Commitments under, this Agreement. The Lenders shall have no
obligation to reinstate or increase any Commitment amounts terminated or reduced
pursuant to this Section 2.08.
Section 2.09 Mandatory Termination of Commitments.
(a) The Commitments shall terminate on the Termination Date, and any
Loans then outstanding (together with accrued interest thereon) shall be due and
payable on such date. The aggregate outstanding principal amount of the Loans
shall at no time exceed the aggregate of the Commitments. If on any date on
which the Commitments are reduced the aggregate outstanding principal amount of
the Loans exceeds the aggregate of the Commitments as so reduced, then the
Borrower shall be obligated to repay (together with accrued interest to the date
of repayment) on such date a principal amount of the Loans equal to such excess.
(b) The then current Commitments shall be reduced on each date on
which a prepayment of Loans is made pursuant to Section 2.11(a) (other than any
prepayment arising from an Asset Sale made pursuant to Section 5.04(d)(ix) or
from any financing permitted under Section 5.04(a)(ix) secured by Liens on
either of the Westvaco and Xxxxxxx Coal Handling Facilities) or would be
required to be made had the outstanding Loans equaled the Commitments then in
effect, in each case in the amount of such prepayment (or deemed prepayment)
(and the Commitment of each Lender shall be reduced by its Share of such
amount); provided, however, that, if such repayment was made from the Net Cash
Proceeds of (i) a Property Loss Event in respect of which the Borrower has
delivered a Reinvestment Notice to the Administrative Agent (a "Reinvestment
Event"), the Commitments shall not be reduced by such prepayment to the extent
of the Reinvestment Deferred Amount of such Reinvestment Event until the
Reinvestment Prepayment Date corresponding thereto and, on such Reinvestment
Prepayment Date, the Commitments shall be reduced only to the extent of the
Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any,
(ii) a Permitted Asset-Backed Financing, the Commitments shall only be reduced
by (A) 25% of the initial Net Cash Proceeds received in respect of any such
financing and (B) 25% of any additional Net Cash Proceeds received from any
subsequent increase in the principal amount of such financing, provided, that
the aggregate amount of such additional Net Cash Proceeds received since the
last prepayment in respect of such financing equals, or is greater than,
$2,500,000, and (iii) an Asset Sale pursuant to Section 5.04(d)(x), the
Commitments shall only be reduced by 25% of the Net Cash Proceeds received in
respect of any such Asset Sale.
Section 2.10 Optional Prepayments.
(a) The Borrower may, upon same day's notice to the Administrative
Agent, prepay any Base Rate Loan in whole at any time, or from time to time in
part in amounts aggregating $2,000,000 or any larger multiple of $500,000, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment; provided, however, that any such prepayment shall be
applied first, to prepay Base Rate Loans under the 364-Day Credit Agreement, and
then, to prepay Base Rate Loans under this Agreement.
(b) The Borrower may, upon at least two Euro-Dollar Business Days'
notice to the Administrative Agent, prepay the Euro-Dollar Loans comprising any
Borrowing in whole at any time, or from time to time in part in amounts
aggregating $2,000,000 or any larger multiple of $500,000, by paying the sum of
(i) the principal amount to be prepaid together with accrued interest thereon to
the date
24
of prepayment, plus (ii) all amounts required to be paid pursuant to Section
10.03(d); provided, however, that any such prepayment shall be applied first, to
prepay Euro-Dollar Loans under the 364-Day Credit Agreement, and then, to prepay
Euro-Dollar Loans under this Agreement
(c) Upon receipt of a notice of prepayment pursuant to this Section
2.10, the Administrative Agent shall promptly notify each Lender of the contents
thereof and of such Lender's Share of such prepayment and such notice shall not
thereafter be revocable by the Borrower. Each optional prepayment shall be
applied to prepay the Loans of the several Lenders included in such Borrowing in
accordance with their respective Shares.
Section 2.11 Mandatory Prepayments.
(a) Within one Business Day after receipt by the Borrower or any of
its Subsidiaries of Net Cash Proceeds arising from an Asset Sale, Property Loss
Event, Debt Issuance or Equity Issuance, the Borrower shall prepay the Loans in
an amount equal to 100% of such Net Cash Proceeds. Any such mandatory prepayment
shall be applied in accordance with clause (b) below.
(b) Subject to the provisions of Section 2.12, any prepayments made by
the Borrower required to be applied in accordance with this clause (b) shall be
applied first, to repay the outstanding principal balance of the 364-Day Loans
and then, to repay the outstanding principal balance of the Loans under this
Agreement. All repayments of Loans required to be made pursuant to this clause
(b) shall result in a permanent reduction of the Commitments to the extent
provided in Section 2.09(b).
Section 2.12 Payments and Computations
(a) The Borrower shall make each payment of principal of and interest
on the Loans, and of additional compensation hereunder, not later than 3:00 P.M.
(New York City time) on the date when due, in federal or other immediately
available funds, without set-off, counterclaim or deduction of any kind, to the
Administrative Agent at its address referred to in Section 10.01. Whenever any
payment of fees or principal of or interest on the Base Rate Loans, or of
additional compensation, shall be due on a day which is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day, and such extension of time shall in such case be included
in the computation of payment of interest or additional compensation. Whenever
any payment of principal of or interest on the Euro-Dollar Loans shall be due on
a day which is not a Euro-Dollar Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 2.04(b), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) Except for payments and other amounts received by the
Administrative Agent and applied in accordance with the provisions of clause (c)
below (or required to be applied in accordance with Section 2.11(b)), all
payments and any other amounts received by the Administrative Agent from or for
the benefit of the Borrower shall be applied as follows: first, to pay the
principal of, and interest on, any portions of the 364-Day Loans the
Administrative Agent may have advanced pursuant to the express provisions of the
364-Day Credit Agreement on behalf of any 364-Day Credit Agreement Lender, for
25
which the Administrative Agent has not then been reimbursed by such 364-Day
Credit Agreement Lender or the Borrower, second, to pay the principal of, and
interest on, any portions of the Loans the Administrative Agent may have
advanced pursuant to the express provisions of this Agreement on behalf of any
Lender, for which the Administrative Agent has not then been reimbursed by such
Lender or the Borrower, third, to pay all other Secured Obligations then due and
payable under the 364-Day Credit Agreement, fourth, to pay all other Secured
Obligations then due and payable under this Agreement, and then, as the Borrower
so designates. Payments in respect of the Loans received by the Administrative
Agent shall be distributed to each Lender in accordance with such Lender's Share
of the Commitments; and all payments of fees and all other payments in respect
of any other Obligation shall be allocated among such of the Lenders as are
entitled thereto and, for such payments allocated to the Lenders, in proportion
to their respective Shares.
(c) The Borrower hereby irrevocably waives the right to direct the
application of any and all payments in respect of the Secured Obligations and
any proceeds of Collateral after the occurrence and during the continuance of an
Event of Default and agrees that, notwithstanding the provisions of Section
2.11(b) and clause (b) above, the Administrative Agent may, and, upon either (A)
the written direction of the Required Lenders or (B) the acceleration of the
Obligations pursuant to Section 6.01, shall apply all payments in respect of any
Secured Obligations and all funds on deposit in any Cash Collateral Account and
all other proceeds of Collateral in the order provided for in the Collateral
Sharing Agreement.
Section 2.13 Computation of Interest and Fees. Interest based on the
Base Rate (unless computed by reference to the Federal Funds Rate) shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the first day but
excluding the last day). All other interest hereunder (including the Base Rate
if computed by reference to the Federal Funds Rate) shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). All fees hereunder shall
be computed on the basis of a year of 360 days and 30 day months (including the
first day but excluding the last day).
Section 2.14 Place of Loans. All Loans shall be disbursed and be
payable at the office of the Administrative Agent, at its address set forth in
Section 10.01.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND BORROWINGS
Section 3.01 Conditions Precedent to Effectiveness. The effectiveness
of the Agreement is subject to the satisfaction or due waiver in accordance with
Section 10.05 of each of the following conditions precedent:
(a) Certain Documents. The Administrative Agent shall have received on
or prior to the Effective Date each of the following, each dated the Effective
Date unless otherwise indicated or agreed to by the Administrative Agent, in
form and substance satisfactory to the Administrative Agent and in sufficient
copies for each Lender:
(i) this Agreement, duly executed and delivered by the
Borrower and each Domestic Subsidiary and, for the account of each
Lender requesting the same, a Note or Notes of the Borrower conforming
to the requirements set forth herein;
(ii) the Pledge and Security Agreement, duly executed by the
Borrower and each Guarantor, together with each of the following:
26
(1) evidence satisfactory to the Administrative Agent
that, upon the filing and recording of instruments delivered on
or prior to the Effective Date, the Collateral Agent (for the
benefit of the Secured Parties) shall have a valid and perfected
first priority security interest (subject to Customary Permitted
Liens and certain existing Liens identified on Schedule
5.04(b)(ii)) in all Collateral (other than the Material Real
Properties (which will be provided post-closing pursuant to
Section 5.03(j)), including (x) such documents duly executed by
each Loan Party as the Administrative Agent may request with
respect to the perfection of its security interests in the
Collateral (including financing statements under the UCC, patent,
trademark and copyright security agreements suitable for filing
with the Patent and Trademark Office or the Copyright Office, as
the case may be, and other applicable documents under the laws of
any jurisdiction with respect to the perfection of the Collateral
Agent's Liens created by the Pledge and Security Agreement) and
the payment of all filing and recording fees and taxes related
thereto and (y) copies of UCC search reports as of a recent date
listing all effective financing statements that name each Loan
Party as debtor, together with copies of such financing
statements, none of which shall cover the Collateral except for
those that shall be terminated on the Effective Date or are
otherwise permitted hereunder;
(2) share certificates representing all of the
certificated Pledged Stock being pledged pursuant to such Pledge
and Security Agreement and stock powers for such share
certificates executed in blank; and
(3) all instruments representing any Pledged Notes
being pledged pursuant to such Pledge and Security Agreement duly
endorsed in favor of the Collateral Agent or in blank;
(iii) the Collateral Sharing Agreement, duly executed by the
Administrative Agent, the Collateral Agent and the Administrative
Agent under, and as defined in, the 364-Day Credit Agreement;
(iv) a copy of the Borrower's Certificate of Incorporation,
certified as of a recent date by the Secretary of State of the State
of Delaware and good standing certificates for the Borrower from the
Secretary of State of the State of Delaware and the Virginia State
Corporation Commission;
(v) a copy of each Guarantors' Articles of Incorporation,
certified as of a recent date by the Secretary of State of the state
of organization of such Guarantor and a good standing certificate for
each Guarantor from the Secretary of State of the state of
organization of such Guarantor;
(vi) an opinion of (A) Hunton & Xxxxxxxx, counsel for the
Borrower, dated as of the Effective Date, and (B) counsel to the Loan
Parties in New York, Delaware, Virginia and West Virginia, in each
case addressed to the Administrative Agent and the Lenders and
addressing such other matters as any Lender through the Administrative
Agent may reasonably request;
(vii) an opinion of the General Counsel of the Borrower,
dated as of the Effective Date;
27
(viii) an opinion of counsel from Weil, Gotshal & Xxxxxx LLP,
counsel for the Administrative Agent, dated as of the date hereof;
(ix) a certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying (A) the names and true
signatures of each officer of such Loan Party that has been authorized
to execute and deliver any Loan Document or other document required
hereunder to be executed and delivered by or on behalf of such Loan
Party, (B) the by-laws (or equivalent Constituent Document) of such
Loan Party as in effect on the date of such certification, (C) the
resolutions of such Loan Party's Board of Directors (or equivalent
governing body) approving and authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents to which it
is a party and (D) that there have been no changes in the certificate
of incorporation (or equivalent Constituent Document) of such Loan
Party from the certificate of incorporation (or equivalent Constituent
Document) delivered pursuant to clauses (iii) and (v) above;
(x) a compliance certificate with respect to the financial
covenants contained in Section 5.02 executed by the Borrower's chief
financial officer, in form and substance satisfactory to the
Administrative Agent;
(xi) a certificate of an authorized officer of the Borrower
to the effect that since October 31, 2001 there has been no Material
Adverse Change;
(xii) a revocation by an authorized officer of the Borrower
of the Borrower's November 6, 2002 election to convert the outstanding
Loans to term loans;
(xiii) evidence satisfactory to the Administrative Agent that
the insurance policies required by Section 5.03(e) and any Collateral
Document are in full force and effect, together with endorsements
naming the Collateral Agent, on behalf of the Secured Parties, as an
additional insured or loss payee under all insurance policies existing
on the Effective Date with respect to the properties of the Borrower
and its Subsidiaries; and
(xiv) such other certificates, documents, agreements and
information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.
(b) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders, as applicable, all fees and expenses (including reasonable fees and
expenses of counsel) due and payable on or before the Effective Date (including
all such fees described in the Fee Letters).
(c) Consents, Etc. Each of the Borrower and its Subsidiaries shall
have received all consents and authorizations required pursuant to any material
Contractual Obligation with any other Person and shall have obtained all Permits
of, and effected all notices to and filings with, any Governmental Authority, in
each case, as may be necessary to allow each of the Borrower and its
Subsidiaries lawfully (i) to execute, deliver and perform, in all material
respects, their respective obligations hereunder and under the Loan Documents to
which each of them, respectively, is, or shall be, a party and each other
agreement or instrument to be executed and delivered by each of them,
respectively, pursuant thereto or in connection therewith and (ii) to create and
perfect the Liens on the Collateral to be owned by each of them in the manner
and for the purpose contemplated by the Loan Documents.
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Section 3.02 Conditions Precedent to Each Borrowing . The obligation
of each Lender to make a Loan on the occasion of a Borrowing (including the
initial Borrowing) shall be subject to the further conditions precedent that:
(a) Notice of Borrowing. The Administrative Agent shall have received
a Notice of Borrowing with respect thereto in accordance with Section 2.02.
(b) Representations and Warranties. On the date of such Borrowing the
following statements shall be true (and each of the giving of the Notice of
Borrowing, and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Borrowing such statements are true):
(i) except to the extent provided below, each of the
representations and warranties of the Borrower contained in Article IV
are true and correct in all material respects on and as of the date of
such Borrowing, before and after giving effect to such Borrowing and
to the application of the proceeds therefrom, as though made on and as
of such date, except to the extent that any such representation or
warranty expressly relates only to an earlier date, in which case such
representation or warranty is correct as of such earlier date; and
(ii) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, which constitutes a Default or Event of Default.
(c) No Legal Impediments. The making of the Loans on such date does
not violate any Requirement of Law on the date of or immediately following such
Loan and is not enjoined, temporarily, preliminarily or permanently.
(d) Margin Stock. After applying the proceeds of such Borrowing, not
more than 25% of the value (as determined by any reasonable method permitted by
Regulation U) of the Borrower's assets subject to the provisions of Section
5.04(g) shall be represented by "margin stock" (as defined in Regulation U).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.01 Corporate Existence and Power; Compliance with Law.
(a) Each of the Borrower and its Subsidiaries (i) is a corporation,
limited liability company or partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, and has
all corporate, limited liability company or partnership powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, (ii) is duly qualified to do business as a
foreign corporation, limited liability company or partnership and in good
standing under the laws of each jurisdiction where such qualification is
necessary, except where the failure to be so qualified or in good standing would
not, in the aggregate, have a Material Adverse Effect, and (iii) has all
requisite power and authority and the legal right to own,
29
pledge, mortgage and operate its properties, to lease the property it operates
under lease and to conduct its business as now conducted.
(b) Each of the Borrower and its Subsidiaries (i) is in compliance
with its Constituent Documents and (ii) is in compliance with all applicable
Requirements of Law except where the failure to be in compliance would not in
the aggregate have a Material Adverse Effect and (iii) has all necessary
permits, licenses, consents or approvals from or by, has made all necessary
filings with, and has given all necessary notices to, each Governmental
Authority having jurisdiction, to the extent required for such ownership,
operation and conduct, except for licenses, permits, consents, approvals or
filings which can be obtained or made by the taking of ministerial action to
secure the grant or transfer thereof or the failure to obtain or make would not
in the aggregate have a Material Adverse Effect.
Section 4.02 Corporate, Limited Liability Company, Partnership and
Governmental Authorization; Contravention. The execution, delivery and
performance by the Borrower and the Guarantors of this Agreement and by the
Borrower of the Notes and the consummation of the transactions contemplated
thereby (i) are within the Borrower's and Guarantors' corporate, limited
liability company or partnership power, as applicable, (ii) have been, or at the
time of delivery thereof pursuant to Article III (Conditions to Effectiveness
and Borrowings) duly authorized by all necessary corporate, limited liability
company or partnership action, including the consent of shareholders where
required, (iii) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority or any
other Person, other than those that have been or will be, prior to the Effective
Date, obtained or made and, with respect to the Collateral, filings required to
perfect the Liens created by the Collateral Documents, and (iv) do not and will
not contravene or constitute a default under any provision of Requirement of Law
(including Regulations T, U and X of the Federal Reserve Board), or of the
Constituent Documents of the Borrower or the Guarantors, as applicable, or of
any Contractual Obligation, judgment, injunction, order or decree binding upon
the Borrower or the Guarantors or result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries, other than those
in favor of the Secured Parties pursuant to the Collateral Documents.
Section 4.03 Binding Effect. This Agreement has been, and each of the
other Loan Documents will have been upon delivery thereof pursuant to the terms
of this Agreement, duly executed and delivered by each Loan Party party thereto.
This Agreement is, and the other Loan Documents will be, when delivered
hereunder, the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
Section 4.04 Ownership of Subsidiaries. Set forth on Schedule 4.04
(Ownership of Subsidiaries) is a complete and accurate list showing, as of the
Effective Date, all Subsidiaries of the Borrower and, as to each such
Subsidiary, the jurisdiction of its organization, the number of shares of each
class of Stock authorized (if applicable), the number outstanding on the
Effective Date and the number and percentage of the outstanding shares of each
such class owned (directly or indirectly) by the Borrower. No Stock or any
Subsidiary of the Borrower is subject to any outstanding option, warrant, right
of conversion or purchase of any similar right. All of the outstanding Stock of
each Subsidiary of the Borrower owned (directly or indirectly) by the Borrower
has been validly issued, is fully paid and non-assessable (to the extent
applicable) and is owned by the Borrower or a Subsidiary of the Borrower, free
and clear of all Liens (other than the Lien in favor of the Secured Parties
created pursuant to the Pledge and Security Agreement), options, warrants,
rights of conversion or purchase or any similar rights.
30
Neither the Borrower nor any such Subsidiary is a party to, or has knowledge of,
any agreement restricting the transfer or hypothecation of any Stock of any such
Subsidiary, other than the Loan Documents. The Borrower does not own or hold,
directly or indirectly, any Stock of any Person other than such Subsidiaries and
Investments permitted by Section 5.04(c).
Section 4.05 Financial Information
(a) The consolidated balance sheets of the Borrower and its
Subsidiaries as of October 31, 2001 and as of September 30, 2002 and the related
consolidated statements of earnings and of cash flow for the fiscal year and
nine months then ended, a copy of which has been delivered to each of the
Lenders, each fairly present, in conformity with GAAP, the consolidated
financial position of the Borrower and its Subsidiaries as of such date and
their consolidated results of operations and changes in financial position for
the period then ended.
(b) The Projections have been prepared by the Borrower in light of the
past operations of its business, and reflect quarterly projections for the
quarterly periods the subject thereof. The Projections are based upon estimates
and assumptions stated therein, all of which the Borrower believes to be
reasonable and fair in light of current conditions and current facts known to
the Borrower and, as of the date thereof, reflect the Borrower's good faith and
reasonable estimates of the future financial performance of the Borrower and its
Subsidiaries and of the other information projected therein for the periods set
forth therein.
(c) There exists no Material Adverse Change since October 31, 2001.
Section 4.06 Solvency. Both before and after giving effect to (a) the
Loans to be made or extended on the Effective Date or such other date as Loans
requested hereunder are made, (b) the disbursement of the proceeds of such Loans
pursuant to the instructions of the Borrower, and (c) the payment and accrual of
all transaction costs in connection with the foregoing, the Borrower is Solvent.
Section 4.07 Litigation. There is no action, suit or proceeding
pending or to the knowledge of the Borrower threatened against or affecting the
Borrower or any of its Subsidiaries before any court or arbitrator or any
Governmental Authority which, if adversely determined, would have a Material
Adverse Effect.
Section 4.08 Compliance with ERISA.
(a) The Borrower and its Subsidiaries have fulfilled their obligations
under the minimum funding standards of ERISA, including, without limitation, the
obligations under Section 302(e) of ERISA, with respect to each Plan and are in
compliance in all material respects with the presently applicable provisions of
ERISA, noncompliance with which could reasonably be expected to have a Material
Adverse Effect;
(b) No ERISA Event which might result in liability of any member of
the Controlled Group in excess of $15,000,000 (other than for premiums payable
under Title IV of ERISA) has occurred or is reasonably expected to occur with
respect to any Plan;
(c) Schedule B (Actuarial Information) to the most recently completed
annual report prior to the Effective Date (Form 5500 Series) for each Plan,
which report has been filed with the Internal Revenue Service by any member of
the Controlled Group, copies of which have been furnished to the Administrative
Agent, is complete and, to the best knowledge of the Borrower, accurate, and
since the
31
date of such Schedule B there has been no material adverse change in the funding
status of any such Plan; and
(d) No member of the Controlled Group has incurred any Withdrawal
Liability to any Multiemployer Plan which has not been satisfied or which is or
might be in excess of $15,000,000.
Section 4.09 Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary other than any such taxes or assessments being presently contested in
good faith and other than where the failure to so file or pay would not have a
Material Adverse Effect. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
Section 4.10 No Burdensome Restrictions; No Defaults
(a) Neither the Borrower nor any of its Subsidiaries (i) is a party to
any Contractual Obligation the compliance with one or more of which would have,
in the aggregate, a Material Adverse Effect or the performance of which by any
thereof, either unconditionally or upon the happening of an event, would result
in the creation of a Lien (other than a Lien permitted under Section 5.04(b) on
the assets of any thereof or (ii) is subject to one or more charter or
corporate, limited liability company or partnership restrictions that would, in
the aggregate, have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any Contractual Obligation owed by it and, to the
knowledge of the Borrower, no other party is in default under or with respect to
any Contractual Obligation owed to any Loan Party or to any Subsidiary of a Loan
Party, other than, in either case, those defaults that, in the aggregate, would
not have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is continuing.
(d) To the knowledge of the Borrower, there are no Requirements of Law
applicable to any Loan Party or any Subsidiary of any Loan Party the compliance
with which by such Loan Party or such Subsidiary, as the case may be, would, in
the aggregate, have a Material Adverse Effect.
Section 4.11 Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower nor any of its Subsidiaries is (a) an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended or (b) a "holding company," or an "affiliate" or
a "holding company" or a "subsidiary company" of a "holding company," as each
such term is defined and used in the Public Utility Holding Company Act of 1935,
as amended.
Section 4.12 Intellectual Property. The Borrower and its Subsidiaries
own or license or otherwise have the right to use all licenses, permits,
patents, patent applications, trademarks, trademark applications, service marks,
trade names, copyrights, copyright applications, franchises, authorizations and
other intellectual property rights (including all Intellectual Property as
defined in the Pledge and Security Agreement), except for those the failure to
own or have such right to use would not have a Material Adverse Effect, that are
necessary for the operations of their respective businesses, without, to the
Borrower's knowledge, infringement upon or conflict with the rights of any other
Person with respect thereto, including all trade names associated with any
private label brands of the Borrower or any of its Subsidiaries. To the
Borrower's knowledge, no slogan or other advertising device, product, process,
32
method, substance, part or component, or other material now employed, or now
contemplated to be employed, by the Borrower or any of its Subsidiaries
infringes upon or conflicts with any rights owned by any other Person, and no
claim or litigation regarding any of the foregoing is pending or threatened
(except infringements, conflicts, claims or litigation that, in the aggregate,
would not have a Material Adverse Effect).
Section 4.13 Use of Proceeds. The proceeds of the Loans are being used
by the Borrower solely (a) for the payment of transaction costs, fees and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby and (b) for working capital and general corporate purposes.
Section 4.14 Insurance. All policies of insurance of any kind or
nature maintained by the Borrower or any of its Subsidiaries, including policies
of life, fire, theft, product liability, public liability, property damage,
other casualty, employee fidelity, workers' compensation and employee health and
welfare insurance, are described on Schedule 4.14 attached hereto.
Section 4.15 Labor Matters
(a) There are no strikes, work stoppages, slowdowns or lockouts
pending or threatened against or involving the Borrower or any of its
Subsidiaries, other than those that, in the aggregate, would not have a Material
Adverse Effect.
(b) There are no unfair labor practices, grievances or complaints
pending, or, to the Borrower's knowledge, threatened, against or involving the
Borrower or any of its Subsidiaries, nor are there any arbitrations or
grievances threatened involving the Borrower or any of its Subsidiaries, other
than those that, in the aggregate, would not have a Material Adverse Effect.
(c) Except as set forth on Schedule 4.15 (Labor Matters), as of the
Effective Date, there is no collective bargaining agreement covering any
employee of the Borrower or its Subsidiaries.
Section 4.16 Business of Borrower; Properties. The Borrower is not
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any Loan will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock. The Borrower and its
Subsidiaries have good title to or valid leasehold estates in their respective
properties and assets as reflected in the most recent financial statements
delivered pursuant to Section 5.01, except for assets disposed of since the date
thereof.
Section 4.17 No Misleading Statements. Neither any of the financial
statements of the Borrower referenced in Section 4.05(a) nor any other document
furnished in connection with clauses (a),(b),(c), (d), (e),(h),(i) and (l) of
Section 5.01 (but excluding any such document or portion thereof containing
financial projections or other forward looking statements) by the Borrower or
any Subsidiary to the Administrative Agent or any Lender in connection with this
Agreement contained any misstatement of material fact or omitted to state a
material fact necessary to make the statements contained therein not misleading.
Section 4.18 Environmental Matters.
(a) Except as disclosed prior to the Effective Date in the Borrower's
filings with the Securities and Exchange Commission, the operations of the
Borrower and each of its Subsidiaries have been and are in compliance with all
33
Environmental Laws, including obtaining and complying with all required
environmental, health and safety Permits, other than non-compliances that, in
the aggregate, would not reasonably be likely to have a Material Adverse Effect.
(b) Except as disclosed prior to the Effective Date in the Borrower's
filings with the Securities and Exchange Commission, none of the Borrower or any
of its Subsidiaries or any real property currently or, to the knowledge of the
Borrower, previously owned, operated or leased by or for the Borrower or any of
its Subsidiaries is subject to any pending or, to the knowledge of the Borrower,
threatened, claim, order, agreement, notice of violation, notice of potential
liability or is the subject of any pending or threatened proceeding or
governmental investigation under or pursuant to Environmental Laws other than
those that, in the aggregate, would not reasonably be likely to have a Material
Adverse Effect.
(c) Except as disclosed on Schedule 4.18 (Environmental Matters), none
of the Borrower or any of its Subsidiaries is a treatment, storage or disposal
facility requiring a Permit under the Resource Conservation and Recovery Act, 42
U.S.C. ss. 6901 et seq., the regulations thereunder, or any state analog.
(d) There are no facts, circumstances or conditions arising out of or
relating to the operations or ownership of the Borrower, or of real property
owned, operated or leased by the Borrower or any of its Subsidiaries, likely to
have a Material Adverse Effect that are not specifically included in the
financial information furnished to the Lenders.
(e) Except as disclosed on Schedule 4.18(Environmental Matters), as of
the date hereof, no Environmental Lien has attached to any property of the
Borrower or any of its Subsidiaries and, to the knowledge of the Borrower, no
facts, circumstances or conditions exist that could reasonably be expected to
result in any such Lien attaching to any such property which would take
preference or priority over any Lien in favor of the Collateral Agent securing
the Secured Obligations.
ARTICLE V
COVENANTS
The Borrower and each Guarantor agrees that, so long as any Lender has any
Obligation or any Commitment remains outstanding and, in each case, unless the
Required Lenders otherwise consent in writing:
Section 5.01 Information. The Borrower will deliver to each of the
Lenders:
(a) as soon as available and in any event within 100 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of earnings and cash flow for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on in a manner acceptable to the Securities and Exchange Commission
by Ernst & Young LLP or other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 55 days after the end
of each of the first three quarters of each fiscal year of the Borrower, an
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such quarter and the related consolidated statements of earnings and
cash flow for such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, as set forth in the Borrower's quarterly
report for the fiscal quarter then ended as filed with the Securities and
Exchange Commission on Form 10-Q, all certified (subject to normal year-end
34
adjustments) as to fairness of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the Borrower;
(c) as soon as available and in any event within 30 days after the
start of each fiscal quarter of the Borrower, a consolidated budget and forecast
of the Borrower and its Subsidiaries as of the start of such fiscal quarter for
such fiscal quarter;
(d) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer, the treasurer or the chief accounting officer of the Borrower
(i) setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Section 5.02 on
the date of such financial statements, (ii) stating whether any Default exists
on the date of such certificate and, if any Default then exists, setting forth
the details thereof and the action which the Borrower is taking or proposes to
take with respect thereto, (iii) describing the parties, subject matter, and
nature and amount of relief granted to the prevailing party in any litigation or
proceeding in which a final judgment or order which is either for the payment of
money in an amount equal to or exceeding $20,000,000 or which grants any
non-monetary relief to the prevailing party therein was rendered against the
Borrower or any Subsidiary (whether or not satisfied or stayed) during the
fiscal quarter ended on the date of such certificate, and (iv) setting forth the
Borrower's long-term senior unsecured debt (or, if the Borrower's senior secured
debt is rated by S&P or Xxxxx'x, the senior secured debt) ratings from S&P and
Xxxxx'x in effect on the date of such financial statements;
(e) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, an annual statement of the firm of
independent public accountants which reported on such statements (i) to the
effect that nothing has come to their attention to cause them to believe that
any Default existed on the date of such statements and (ii) confirming the
calculations set forth in the officer's certificate delivered simultaneously
therewith pursuant to clause (d) above;
(f) forthwith upon knowledge of the occurrence of any Default or Event
of Default, a certificate of the chief financial officer, the treasurer or the
chief accounting officer of the Borrower setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto;
(g) Promptly after the commencement thereof, the Borrower shall give
the Administrative Agent written notice of the commencement of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or
arbitrator, affecting the Borrower or any of its Subsidiaries that (i) seeks
injunctive or similar relief or (ii) in the reasonable judgment of the Borrower
or such Subsidiary, exposes the Borrower or such Subsidiary to liability (other
than Environmental Liabilities and Costs) in an amount aggregating $5,000,000 or
more for any group of such actions, suits and proceedings arising from any
single event or series of related events or that, if adversely determined, would
have a Material Adverse Effect.
(h) The Borrower shall provide the Administrative Agent promptly and
in any event within 10 days after the Borrower or any Subsidiary obtaining
knowledge of any of the following, written notice of each of the following:
(i) that any Loan Party is or may be liable to any Person
as a result of a Release or threatened Release that could reasonably
be expected to subject the Loan Parties collectively to Environmental
Liabilities and Costs of $10,000,000 or more prior to the Termination
Date;
35
(ii) the receipt by any Loan Party of notification that any
real or personal property of such Loan Party is subject to any
Environmental Lien, or the discovery of action by a Governmental
Authority that is reasonably expected to result in an Environmental
Lien, that could take preference or priority over any lien in favor of
the Collateral Agent securing the Secured Obligations;
(iii) the receipt by any Loan Party of any notice of
violation of or potential liability under, or knowledge by such Loan
Party that there exists a condition that could reasonably be expected
to result in a violation of or liability under, any Environmental Law
(except reclamation requirements under the Surface Mining Control and
Reclamation Act), except for violations and liabilities the
consequence of which, in the aggregate, would not be reasonably likely
to subject the Loan Parties collectively to Environmental Liabilities
and Costs of $10,000,000 or more;
(iv) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of or liability under
any Environmental Law, that, if adversely determined, would have a
reasonable likelihood of subjecting the Loan Parties collectively to
Environmental Liabilities and Costs of $10,000,000 or more prior to
the Termination Date for any group of such judicial or administrative
proceedings or investigations arising from any single event or series
of related events; and
(v) any proposed action by any Loan Party or any of its
Subsidiaries or any proposed change in Environmental Laws that has a
reasonable likelihood of requiring the Loan Parties to obtain
additional environmental, health or safety Permits or make additional
capital improvements to obtain compliance with Environmental Laws that
would cost $5,000,000 or more or subject the Loan Parties to
additional Environmental Liabilities and Costs of $5,000,000 or more
prior to the Termination Date.
(i) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(j) promptly upon the filing thereof, copies of (i) all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower or any Subsidiary shall have filed with the
Securities and Exchange Commission, and (ii) all other reports which the
Borrower or any Subsidiary shall have filed with the Securities and Exchange
Commission or any national securities exchange, unless the Borrower or such
Subsidiary is not permitted to provide copies thereof to the Lenders pursuant to
applicable laws or regulations;
(k) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plans which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability in excess of $15,000,000 under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice;
(l) promptly upon the Borrower's obtaining knowledge thereof, notice
of any withdrawal or change or proposed withdrawal or change in the long-term
senior unsecured debt (or, if the
36
Borrower's senior secured debt is rated by S&P or Xxxxx'x, the senior secured
debt) rating of the Borrower assigned by S&P or Xxxxx'x; and
(m) from time to time such additional information regarding the
financial position or business of the Borrower or any Subsidiary as the
Administrative Agent, at the reasonable request of any Lender, may request.
Section 5.02 Financial Covenants.
(a) The Borrower shall maintain a ratio of Consolidated Debt to
Consolidated EBITDA, as determined on a rolling four quarter basis, of not more
than 3.5 to 1.0.
(b) The Borrower shall maintain a Consolidated Interest Coverage
Ratio, as determined on the last day of each fiscal quarter, for the four fiscal
quarters ending on such day, of not less than 4.25 to 1.0.
(c) The Borrower shall maintain during each fiscal quarter a
Consolidated Tangible Net Worth of not less than the sum of (i) $700,000,000
plus (ii) for each fiscal quarter after October 31, 2000, 25% of Consolidated
Net Income, if positive, for each such fiscal quarter.
(d) The Borrower shall not make or incur, or permit to be made or
incurred, Capital Expenditures during the period from October 1, 2002 through
November 25, 2003, to be, in the aggregate, in excess of the maximum amount of
$148,000,000, provided, however, that, in any event, up to $15,000,000 may be
used to acquire, construct and/or operate certain coal handling or management
facilities without being included in the calculation of Capital Expenditures
incurred.
Section 5.03 Affirmative Covenants.
(a) Preservation of Corporate Existence, Etc. The Borrower will
preserve, renew and keep in full force and effect, and will cause each Loan
Party to preserve, renew and keep in full force and effect, their respective
corporate, limited liability company or partnership existence and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section 5.03(a) shall
prevent the Borrower or any Loan Party from (i) merging into, consolidating
with, or selling, leasing or otherwise transferring all of its assets to the
Borrower or a Subsidiary or into, with or to any Person in accordance with
Section 5.04(d) and Section 5.04(g), or (ii) abandoning or disposing of any of
its property or abandoning or terminating any right or franchise if (A) such
abandonment, disposition or termination does not violate any other provision of
this Agreement and (B) all such abandonments, dispositions and terminations do
not in the aggregate have a Material Adverse Effect.
(b) Compliance with Laws, Etc. The Borrower will comply, and cause
each Subsidiary to comply, in all material respects with all Requirements of Law
(including, without limitation, ERISA, Environmental Laws and the rules and
regulations thereunder), except where failure to so comply would not have a
Material Adverse Effect.
(c) Conduct of Business The Borrower will not, and will not permit any
of its Subsidiaries to, engage in any business other than the businesses engaged
in by the Borrower or such Subsidiaries on the date hereof and any business or
activities which are substantially similar, related or incidental thereto,
except to the extent otherwise permitted hereunder.
37
(d) Payment of Taxes, Etc. The Borrower will pay, and will cause each
Subsidiary to pay, before the same become delinquent, all taxes, assessments and
governmental charges imposed upon it or any of its properties, except where the
same may be contested in good faith by appropriate proceedings, or where any
failure to so pay would not have a Material Adverse Effect, and the Borrower
will maintain, and will cause each Subsidiary to maintain, in accordance with
GAAP, appropriate reserves for the accrual of the same.
(e) Maintenance of Properties and Insurance. The Borrower will keep,
and will cause each Subsidiary to maintain and preserve (i) all material items
of property necessary in its business in good working order and condition,
ordinary wear and tear and damage from casualty and condemnation excepted, (ii)
all material rights, permits, licenses, approvals and privileges (including all
Permits) used or necessary in the conduct of its business as then being
conducted and (iii) all registered patents, trademarks, trade names, copyrights
and service marks necessary in the conduct of its business as then being
conducted. The Borrower will maintain, and will cause each Subsidiary to
maintain, with financially sound and reputable insurance companies, insurance on
all their real and personal property in at least such amounts and against at
least such risks as are usually insured against by companies of established
repute engaged in the same or similar business as the Borrower or such
Subsidiary and owning similar assets ("Industry Standards"), except where such
risks are covered by self insurance so long as the amount of such self insurance
and the risks covered thereby are consistent with Industry Standards or the
Borrower's and such Subsidiary's past practices as they exist on the Effective
Date. The Borrower will promptly furnish to the Lenders such information as to
insurance carried or self insurance maintained as may be reasonably requested in
writing by the Administrative Agent on behalf of any Lender. The Borrower will
cause all insurance covered under this paragraph (e) to name the Collateral
Agent on behalf of the Secured Parties as additional insured or loss payee, as
appropriate, and to provide that no cancellation or material change in coverage
shall be effective until after 30 days' written notice thereof to the Collateral
Agent.
(f) Keeping of Records; Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in accordance with GAAP consistently applied; and will
permit, and will cause each Subsidiary to permit, the Administrative Agent,
Collateral Agent, and any of the Lenders, or any agents or representatives of
the Administrative Agent, Collateral Agent and any Lender, at the such
Administrative Agent's, Collateral Agent's or Lender's expense, to visit and
inspect any of their respective properties, to examine any of their respective
books and records and (subject to Section 10.12) to discuss their respective
affairs, finances and accounts with any of their respective officers, directors,
employees and independent public accountants, all at such times and as often as
may reasonably be desired, in each case upon reasonable notice and during normal
business hours.
(g) Application of Proceeds. The Borrower shall use the entire amount
of the proceeds of the Loans as provided in Section 4.13. None of such proceeds
will be used in violation of any applicable Requirement of Law.
(h) Environmental. The Borrower shall, and shall cause all of its
Subsidiaries to, comply in all material respects with Environmental Laws and,
without limiting the foregoing, the Borrower shall, at its sole cost and
expense, upon receipt of any notification or otherwise obtaining knowledge of
any Release or other event that has any reasonable likelihood of the Borrower
and its Subsidiaries incurring Environmental Liabilities and Costs in excess of
$10,000,000 in the aggregate, take such Remedial Action and undertake such
investigation or other action as required by Environmental Laws or as any
Governmental Authority requires or as is appropriate and consistent with good
business practice to address the Release or event and otherwise ensure
compliance with Environmental Laws.
38
(i) Additional Collateral and Guaranties To the extent not delivered
to the Administrative Agent on or before the Effective Date, the Borrower agrees
to do promptly each of the following:
(i) execute and deliver, and cause its Domestic
Subsidiaries, to execute and deliver, to the Administrative Agent such
supplements, amendments and joinders to the Collateral Documents as
the Administrative Agent deems necessary or advisable in order to
grant to the Collateral Agent, for the benefit of the Secured Parties,
a perfected first priority security interest in the Stock and Stock
Equivalents and other debt Securities of any Loan Party or Subsidiary
thereof that are owned by such Loan Party or such Subsidiary and
requested to be pledged by the Administrative Agent; provided,
however, that, unless otherwise agreed by the Borrower and the
Administrative Agent, in no event shall any Loan Party be required to
pledge in excess of 65% of the outstanding Voting Stock of any
Subsidiary of any Loan Party that is not a Domestic Subsidiary or,
unless such Stock is otherwise held by the Borrower or any other
Guarantor, any of the Stock of any Subsidiary of such Subsidiary; and
provided, further, that, unless otherwise agreed by the Borrower and
the Administrative Agent, in no event shall any Subsidiary of any Loan
Party that is not a Domestic Subsidiary be required to guaranty the
payment of the Obligations or grant a security interest in any of its
assets to secure the Secured Obligations;
(ii) deliver to the Collateral Agent the certificates (if
any) representing such Stock and Stock Equivalents and other debt
Securities, together with (i) in the case of such certificated Stock
and Stock Equivalents, undated stock powers endorsed in blank and (ii)
in the case of such certificated debt Securities, endorsed in blank,
in each case executed and delivered by a Responsible Officer of such
Loan Party or such Subsidiary thereof, as the case may be;
(iii) in the case of any Wholly-Owned Subsidiary of any Loan
Party that is a Domestic Subsidiary, cause such Wholly-Owned
Subsidiary (i) to execute a supplement, amendment or joinder or
otherwise become a party to this Agreement as a Guarantor and the
applicable Collateral Documents and (ii) to take such actions
necessary or advisable to grant to the Collateral Agent for the
benefit of the Secured Parties a perfected security interest in the
Collateral described in the Collateral Documents with respect to such
Wholly-Owned Subsidiary, including the filing of UCC financing
statements in such jurisdictions as may be required by the Collateral
Documents or by law or as may be reasonably requested by the
Administrative Agent or the Collateral Agent; and
(iv) if requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
Notwithstanding anything in Section 5.03(j) or this Section 5.03(i) to the
contrary, (x) no Special Purpose Financing Subsidiary shall be required to xxxxx
x Xxxx on any of its assets as security for the Secured Obligations, (y) no Loan
Party shall be required to pledge the Stock of any Special Purpose Financing
Subsidiary if the terms of the applicable Permitted Asset-Backed Financing
prohibit the pledge of such Stock (it being understood that the Borrower shall
use reasonable efforts to avoid such prohibition in connection with its
negotiation of the terms of such Permitted Asset-Backed Financing) and (z) the
maximum amount of Secured Obligations that shall be secured by any portion of
the Collateral that constitutes Principal Property (as defined in the Indenture
dated as of February 18, 1997 between Fluor
39
Corporation and Bankers Trust Company, as trustee), shall be limited to the
maximum amount necessary to avoid triggering the equal and ratable sharing
provisions thereunder.
(j) Other Post-Closing Deliveries
(i) Material Real Property Documents. The Administrative
Agent shall have received each of the following, each in form and substance
reasonably satisfactory to the Administrative Agent and in sufficient copies for
each Lender:
(A) With respect to any portion of any Material Real
Property (other than the Power Mountain Preparation Plant) where the
surface of such portion is owned in fee simple, on or prior to
February 28, 2003 (or such later date as agreed to by the
Administrative Agent), the Administrative Agent shall have received
with respect to such portions of the Material Real Properties: (1)
Mortgages (except as may be agreed to by the Administrative Agent),
(2) copies of deeds or other evidence acceptable to the Administrative
Agent proving fee ownership thereof, (3) copies of maps or plats of
current as-built surveys and surveyor's certificate therefor and, if
available, zoning letters and certificates of occupancy, each
reasonably satisfactory in form and substance to the Administrative
Agent and (4) in each state in which any such Mortgage is to be
recorded, legal opinions in form and substance and from counsel
reasonably satisfactory to the Administrative Agent (x) as to the
status of title (which may, in any event, be subject to Customary
Permitted Liens which Borrower shall have no obligation to correct or
cure) and (y) as to the enforceability of the Lien of the Mortgage
(collectively, the "Local Counsel Opinions").
(B) With respect to any Material Real Property, other
than those covered by Section 5.03(j)(i)(A) (each a "Leased Material
Real Property" and collectively the "Leased Material Real
Properties"), to the extent that the applicable lease of a particular
Leased Material Real Property expressly gives such Loan Party the
right to grant a Mortgage on the Loan Party's leasehold interest in
the Leased Material Real Property without the landlord's consent, then
on or prior to February 28, 2003 (or such later date as agreed to by
the Administrative Agent), the Administrative Agent shall have
received: (1) Mortgages for such Loan Party's leasehold interest in
the Leased Material Real Properties (except as may be agreed to by the
Administrative Agent), (2) copies of the applicable lease of such
Leased Material Real Property, (3) copies of any existing maps or
plats of survey therefor and (4) the Local Counsel Opinions pertaining
to such Mortgages.
(C) With respect to each Leased Material Real Property
for which the applicable lease requires the landlord's consent in
order for the Loan Party to assign its leasehold interest or grant a
Mortgage on the Loan Party's leasehold interest in such Leased
Material Real Property, on or prior to December 15, 2002 the
applicable Loan Party shall request the landlord's consent to the
granting by the Loan Party of a Mortgage on its leasehold interest.
Thereafter, the Loan Party shall use commercially reasonable efforts
to obtain the landlord's written consent on or prior to January 31,
2003 (or such later date as agreed to by the Administrative Agent);
provided, however, that commercially reasonable efforts shall not be
deemed to include the payment by the Loan Party to such landlord of
any sums not otherwise required to be paid to the landlord under the
applicable lease. In the event that prior to such date a Loan Party
receives the written consent of its landlord to the granting of a
Mortgage, then within sixty (60) days after receipt of such written
consent, the Administrative Agent shall have received: (1)
40
Mortgages for such Loan Party's leasehold interest in the Leased
Material Real Properties (except as may be agreed to by the
Administrative Agent), (2) copies of the applicable lease of such
Leased Material Real Property, (3) copies of any existing maps or
plats of survey therefor and (4) the Local Counsel Opinions pertaining
to such Mortgages. In the event that a Loan Party is unable to obtain
written consent from a particular landlord on or before February 28,
2003, notwithstanding the Loan Party's commercially reasonable
efforts, then the Borrower's obligations under this Section
5.03(j)(i)(C) with respect to that particular Leased Material Real
Property shall be deemed satisfied and no further deliveries shall be
required hereunder.
(D) In the event that any applicable lease required to
be delivered pursuant to Sections (B) or (C) above is not in
recordable form, then on or prior to December 15, 2002 the applicable
Loan Party shall request the applicable landlord to re-execute such
lease or a memorandum of such lease with such Loan Party in recordable
form, and thereafter shall use commercially reasonable efforts in
order that the landlord re-execute such lease or such memorandum with
such Loan Party in recordable form on or prior to January 31, 2003 (or
such later date as agreed to by the Administrative Agent); provided,
however, that commercially reasonable efforts shall not be deemed to
include the payment by the Loan Party to such landlord of any sums not
otherwise required to be paid to the landlord under the applicable
lease. In the event that prior to such date any lease is so
re-executed or any memorandum is so executed in recordable form, then
within two Business Days of receipt of such re-executed lease or
executed memorandum by such Loan Party, the Administrative Agent shall
have received a copy of such re-executed lease or such memorandum. In
the event that a Loan Party is unable to obtain such re-executed lease
or such memorandum from a particular landlord on or before February
28, 2003, notwithstanding the Loan Party's commercially reasonable
efforts, then the Borrower's obligations under this Section
5.03(j)(i)(D) with respect to that particular Leased Material Real
Property shall be deemed satisfied and no further deliveries shall be
required hereunder.
(ii) Power Mountain Preparation Plant. Within sixty (60)
days (or such later date as agreed to by the Administrative Agent) after
determining that Liens on the Power Mountain Plant and Reserves will not, or
will no longer be, used to secure an appeal bond for the Xxxxxx Case, then, the
Administrative Agent shall have received the following with respect to the Power
Mountain Preparation Plant, but not with respect to the land and reserves
associated therewith: (1) A Mortgage, (2) copies of deeds or other evidence
acceptable to the Administrative Agent proving fee ownership thereof, (3) copies
of maps or plats of current as-built surveys and surveyor's certificate therefor
and, if available, zoning letters and certificates of occupancy, in each
reasonably satisfactory in form and substance to the Administrative Agent and
(4) the Local Counsel Opinions pertaining to such Mortgage.
(iii) Account Agreements. On or prior to January 31, 2003 (or
such later date as agreed to by the Administrative Agent), the Administrative
Agent shall have received each of the following, each in form and substance
reasonably satisfactory to the Administrative Agent and in sufficient copies for
each Lender:
(A) Deposit Account Control Agreements from all
Deposit Account Banks; and
(B) Control Account Agreements from (1) all securities
intermediaries with respect to all securities accounts and securities
entitlements of the Borrower and each Guarantor and (2) all futures
commission agents and clearing houses
41
with respect to all commodities contracts and commodities accounts
held by the Borrower and each Guarantor;
Section 5.04 Negative Covenants.
(a) Debt. None of the Loan parties shall, or shall permit any of their
respective Subsidiaries to, directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any
Debt except for the following:
(i) the Secured Obligations;
(ii) Debt existing on the date of this Agreement and
disclosed on Schedule 5.04(a)(ii) (Existing Debt);
(iii) Guaranty Obligations incurred by the Borrower or any
Guarantor in respect of Debt of the Borrower or any Guarantor that is
permitted by this Section 5.04(a);
(iv) Capital Lease Obligations and purchase money Debt
incurred by the Borrower or a Subsidiary of the Borrower to finance
the acquisition of fixed assets; provided, however, that the Capital
Expenditure related thereto is otherwise permitted by Section 5.02(d)
and that the aggregate outstanding principal amount of all such
Capital Lease Obligations and purchase money Debt shall not exceed
$10,000,000 at any time;
(v) Renewals, extensions, refinancings and refundings of
Debt permitted by clause (ii) (other than with respect to the Public
Debt) or (iv) above or this clause (v); provided, however, that any
such renewal, extension, refinancing or refunding is in an aggregate
principal amount not greater than the principal amount of, and is on
terms no less favorable to the Borrower or such Subsidiary, including
as to weighted average maturity, than the Debt being renewed,
extended, refinanced or refunded;
(vi) Debt arising from intercompany loans permitted under
Section 5.04(c) (Investments);
(vii) Debt arising under any performance or surety bond
entered into in the ordinary course of business;
(viii) Debt arising from a Permitted Asset-Backed Financing;
provided, that the Net Cash Proceeds of such Debt are applied to the
Obligations in accordance with Section 2.11(a).; and
(ix) Debt incurred in connection with the Westvaco and
Xxxxxxx Coal Handling Facilities, provided, that the aggregate amount
of such Debt shall not exceed 90% of the Fair Market Value of such
facilities or, in the case of the Xxxxxxx Coal Handling Facility, the
cost of the construction thereof, if higher; and provided, further,
that the Net Cash Proceeds of such Debt are applied to the Obligations
in accordance with Section 2.11(a).
(b) Liens, Etc.. None of the Loan Parties shall, or shall permit any
of their respective Subsidiaries to, create or suffer to exist, any Lien upon or
with respect to any of their respective properties
42
or assets, whether now owned or hereafter acquired, or assign, or permit any of
their respective Subsidiaries to assign, any right to receive income, except for
the following:
(i) Liens created pursuant to the Loan Documents;
(ii) Liens existing on the date of this Agreement and
disclosed on Schedule 5.04(b)(ii) (Existing Liens);
(iii) Liens on the Power Mountain Preparation Plant and
Reserves to secure an appeal bond for the Xxxxxx Case and Liens on the
Westvaco and Xxxxxxx Coal Handling Facilities;
(iv) (A) Liens on cash and Cash Equivalents securing, or
required to secure, the issuance of certain letters of credit
outstanding on the Effective Date, as more specifically listed on
Schedule 5.04(b)(iv) (Existing Letters of Credit), which cash and Cash
Equivalents shall not exceed $31,600,000 in the aggregate, (B) Liens
on cash and Cash Equivalents required to secure workers compensation,
appeal rights, construction contracts with respect to permitted
Capital Expenditures, sales support and reclamation or similar
obligations, which cash and Cash Equivalents shall not exceed
$29,000,000 in the aggregate, and (C) Liens on cash and Cash
Equivalents to secure the appeal of the Xxxxxx Case, but only to the
extent that Liens on the Power Mountain Preparation Plant and Reserves
are not used (or are not sufficient) as such security therefor, which
cash and Cash Equivalents shall not exceed $70,000,000;
(v) Customary Permitted Liens of the Borrower and the
Borrower's Subsidiaries;
(vi) purchase money Liens granted by the Borrower or any
Subsidiary of the Borrower (including the interest of a lessor under a
Capital Lease and purchase money Liens to which any property is
subject at the time, on or after the date hereof, of the Borrower's or
such Subsidiary's acquisition thereof) securing Debt permitted under
Section 5.04(a)(iv) and limited in each case to the property purchased
with the proceeds of such purchase money Debt or subject to such
Capital Lease;
(vii) any Lien securing the renewal, extension, refinancing
or refunding of any Debt secured by any Lien permitted by clause (ii)
(iii), (iv) or (vi) above, (viii) or (ix) below or this clause (vii)
without any change in the assets subject to such Lien and to the
extent such renewal, extension, refinancing or refunding is permitted
by Section 5.04(a);
(viii) Liens in favor of lessors securing operating leases
permitted hereunder;
(ix) Liens on the assets of one or more special purpose
Subsidiaries of the Loan Parties established for the purpose of
Permitted Asset-Backed Financings (each, a "Special Purpose Financing
Subsidiary"), which Liens are created or deemed to exist in connection
with such Permitted Asset-Backed Financing (including any related
filings or any financing statements); provided that the aggregate
attributed principal amount secured by all such Liens shall not exceed
$150,000,000 at any time; and
(x) Liens not otherwise permitted by the foregoing clauses
of this Section 5.04(b) securing obligations or other liabilities
(other than Debt) of any Loan Party;
43
provided, however, that the aggregate outstanding amount of all such
obligations and liabilities shall not exceed $5,000,000 at any time.
(c) Investments. None of the Loan Parties shall, or shall permit any
of their respective Subsidiaries to, directly or indirectly make or maintain any
Investment except for the following:
(i) Investments existing on the date of this Agreement and
disclosed on Schedule 5.04(c) (Existing Investments);
(ii) Investments in cash and Cash Equivalents held in a
Deposit Account or a Control Account with respect to which the
Administrative Agent for the benefit of the Secured Parties has a
first priority perfected Lien;
(iii) Investments in accounts, payment intangibles and
chattel paper (each as defined in the UCC), notes receivable and
similar items arising, made or acquired in the ordinary course of
business;
(iv) Investments received in settlement of amounts due to
the Borrower or any Subsidiary of the Borrower effected in the
ordinary course of business;
(v) Investments by (A) the Borrower in any Guarantor or by
any Guarantor in the Borrower or any other Guarantor, (B) a Subsidiary
of the Borrower that is not a Guarantor in the Borrower or any other
Subsidiary of the Borrower or in a Permitted Joint Venture; provided,
however, that the aggregate outstanding amount of all Investments
permitted pursuant to this clause (C) shall not exceed $10,000,000 at
any time;
(vi) Investments constituting Guaranty Obligations permitted
by Section 5.04(a); and
(vii) Investments not otherwise permitted hereby; provided,
however, that the aggregate outstanding amount of all such Investments
shall not exceed $5,000,000 at any time.
(d) Sale of Assets The Borrower shall not, nor shall it permit any of
its respective Subsidiaries to, sell, convey, transfer, lease or otherwise
dispose of, any of their respective assets or any interest therein (including
the sale or factoring at maturity or collection of any accounts) to any Person,
or permit or suffer any other Person to acquire any interest in any of their
respective assets or, in the case of any Subsidiary, issue or sell any shares of
such Subsidiary's Stock or Stock Equivalent (any such disposition being an
"Asset Sale"), except for the following:
(i) the sale or disposition of inventory in the ordinary
course of business;
(ii) the sale or disposition of equipment that has become
obsolete or is replaced in the ordinary course of business;
(iii) the lease or sublease of real property or coal, oil or
gas reserves not constituting a sale and leaseback, to the extent not
otherwise prohibited by this Agreement;
44
(iv) assignments and licenses of intellectual property of
the Borrower and its Subsidiaries in the ordinary course of business;
(v) any Asset Sale to the Borrower or any Guarantor;
(vi) any sale of accounts, payment intangibles and related
collateral pursuant to a Permitted Asset-Backed Financing; provided,
that the Net Cash Proceeds of such financing are applied to the
Obligations in accordance with Section 2.11(a);
(vii) any Involuntary Dispositions;
(viii) the sale of non-strategic coal reserves of up to
$3,000,000 during any Fiscal Year and exchanges of reserves in the
ordinary course of business; (ix) any Asset Sale relating to the
Westvaco and Xxxxxxx Coal Handling Facilities; provided, that the Net
Cash Proceeds of such sale are applied to the Obligations in
accordance with Section 2.11(a);
(x) any Asset Sale for Fair Market Value for all or any
portion of the assets on Schedule 5.04(d)(x) in connection with a sale
and leaseback transaction; provided, that the Net Cash Proceeds of
such sale are applied to the Obligations in accordance with Section
2.11(a); and
(xi) as long as no Default or Event of Default is continuing
or would result therefrom, any other Asset Sale for Fair Market Value,
payable in cash upon such sale; provided, however, that with respect
to any such Asset Sale pursuant to this clause (xi), (i) the aggregate
consideration received during any Fiscal Year for all such Asset Sales
shall not exceed $5,000,000 and (ii) all Net Cash Proceeds of such
Asset Sale are applied as set forth in, and to the extent required by,
Section 2.11.
(e) Restricted Payments. The Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Payment except for the following:
(i) Restricted Payments by any Subsidiary of the Borrower
to the Borrower or any Guarantor;
(ii) dividends declared and paid on the common Stock of the
Borrower and payable only in common Stock of the Borrower; and
(iii) as long as no Default or Event of Default is continuing
or would result therefrom, cash dividends declared and paid on the
Common Stock of the Borrower not in excess of $0.16 per share in any
Fiscal Year, provided, that in no case shall such amount exceed
$13,000,000 in such Fiscal Year.
(f) Prepayment and Cancellation of Debt
(i) The Borrower shall not, nor shall it permit any of its
respective Subsidiaries to, cancel any claim or Debt owed to any of
them except in the ordinary course of business consistent with past
practice.
45
(ii) The Borrower shall not, and shall not permit any of its
Subsidiaries to, (a) prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make
any payment in violation of any subordination terms of, any Debt;
provided, however, that the Borrower may (i) repurchase outstanding
Public Debt, the aggregate purchase price of which does not exceed
$19,500,000, (ii) prepay the Secured Obligations in accordance with
the terms of this Agreement and the 364-Day Credit Agreement, (iii)
make regularly scheduled or otherwise required repayments or
redemptions of existing Debt, (iv) prepay any Debt payable to the
Borrower by any of its Subsidiaries and (v) renew, extend, refinance
and refund Debt, so long as such renewal, extension, refinancing or
refunding is permitted under Section 5.04(a)(v).
(g) Restriction on Fundamental Changes. The Borrower shall not, nor
shall it permit any of its Subsidiaries to, (i) merge with any Person, (ii)
consolidate with any Person, (iii) acquire all or substantially all of the Stock
or Stock Equivalents of any Person, (iv) acquire all or substantially all of the
assets of any Person or all or substantially all of the assets constituting the
business of a division, branch or other unit operation of any Person, (v) other
than in connection with a Permitted Joint Venture, the investment in which is
permitted in Section 5.04(c)(v)(C), enter into any joint venture or partnership
with any Person or (vi) acquire or create any Subsidiary unless, after giving
effect to such creation or acquisition, (A) such Subsidiary is a Wholly-Owned
Subsidiary of the Borrower and the Borrower is in compliance with Section
5.03(i) or (B) such subsidiary is acquired or created in connection with a
Permitted Joint Venture and the Investment in such Subsidiary is permitted under
Section 5.04(c)(v)(C).
(h) Change in Nature of Business. The Borrower shall not, and shall
not permit any of its Subsidiaries to, make any material change in the nature or
conduct of its business as carried on at the date hereof.
(i) Transactions with Affiliates. The Borrower shall not, and shall
not permit any of its Subsidiaries to, except as otherwise expressly permitted
herein, do any of the following: (a) make any Investment in an Affiliate of the
Borrower that is not a Subsidiary of the Borrower, (b) transfer, sell, lease,
assign or otherwise dispose of any asset to any Affiliate of the Borrower that
is not a Subsidiary of the Borrower, (c) merge into or consolidate with or
purchase or acquire assets from any Affiliate of the Borrower that is not a
Subsidiary of the Borrower, (d) repay any Debt to any Affiliate of the Borrower
that is not a Subsidiary of the Borrower or (e) enter into any other transaction
directly or indirectly with or for the benefit of any Affiliate of the Borrower
that is not a Guarantor (including guaranties and assumptions of obligations of
any such Affiliate), except for (i) transactions in the ordinary course of
business on a basis no less favorable to the Borrower or such Guarantor as would
be obtained in a comparable arm's length transaction with a Person not an
Affiliate and (ii) salaries and other director or employee compensation to
officers or directors of the Borrower or any of its Subsidiaries commensurate
with current compensation levels.
(j) Limitations on Restrictions on Subsidiary Distributions; No New
Negative Pledge. Except pursuant to the Loan Documents and any agreements
governing purchase money Debt or Capital Lease Obligations permitted by Section
5.04(a)(ii), (iv) or (v) (in which latter case, any prohibition or limitation
shall only be effective against the assets financed thereby), the Borrower shall
not, and shall not permit any of its Subsidiaries to, (a) agree to enter into or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other Investments in, or pay any Debt owed to, the Borrower or any other
Subsidiary of the Borrower or (b) enter into or suffer to exist or become
effective any agreement prohibiting or limiting the ability of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of
its property,
46
assets or revenues, whether now owned or hereafter acquired, to secure the
Obligations, including any agreement requiring any other Debt or Contractual
Obligation to be equally and ratably secured with the Obligations.
(k) Modification of Constituent Documents. The Borrower shall not, nor
shall it permit any of its Subsidiaries to, change its capital structure
(including in the terms of its outstanding Stock) or otherwise amend its
Constituent Documents, except for changes and amendments that do not materially
affect the rights and privileges of the Borrower or any of its Subsidiaries and
do not materially affect the interests of the Administrative Agent and the
Lenders under the Loan Documents or in the Collateral.
(l) Modification of Public Debt Agreements and the 364-Day Credit
Agreement. The Borrower shall not, nor shall it permit any of its Subsidiaries
to, change or amend the terms of any Public Debt (or any indenture or agreement
or other material document entered into in connection therewith) or the 364-Day
Credit Agreement (or any agreement or other material document entered into in
connection therewith) if the effect of such amendment is to (a) increase the
interest rate on such Public Debt or 364-Day Credit Agreement, (b) change the
dates upon which payments of principal or interest are due on such Public Debt
or 364-Day Credit Agreement other than to extend such dates, (c) change any
default or event of default other than to delete or make less restrictive any
default provision therein, or add any covenant with respect to such Public Debt
or 364-Day Credit Agreement, (d) change the redemption or prepayment provisions
of such Public Debt other than to extend the dates therefor or to reduce the
premiums payable in connection therewith, or change the prepayment provisions of
such 364-Day Credit Agreement other than to extend the dates therefor or (e)
change or amend any other term if such change or amendment would materially
increase the obligations of the obligor or confer additional material rights to
the holder of such Public Debt or 364-Day Credit Agreement Lenders in a manner
adverse to the Borrower, any of its Subsidiaries, the Administrative Agent or
any Lender.
(m) Accounting Changes; Fiscal Year. The Borrower shall not, nor shall
it permit any of its Subsidiaries to, change its (a) accounting treatment and
reporting practices or tax reporting treatment, except as required by GAAP or
any Requirement of Law and disclosed to the Lenders and the Administrative Agent
or (b) Fiscal Year.
(n) Margin Regulations. The Borrower shall not, and shall not permit
any of its Subsidiaries to, use all or any portion of the proceeds of any credit
extended hereunder to purchase or carry margin stock (within the meaning of
Regulation U of the Federal Reserve Board) in contravention of Regulation U of
the Federal Reserve Board.
(o) Hedging Contracts. The Borrower will not, and will not permit any
of its Subsidiaries to, enter into any Hedging Contract solely for speculative
purposes or other than for the purpose of hedging risks associated with the
businesses of the Borrower and its Subsidiaries, as done in the ordinary course
of such businesses.
(p) Compliance with ERISA. The Borrower shall not cause or permit to
occur, and shall not permit any of its Subsidiaries or ERISA Affiliates to cause
or permit to occur, (a) an event that could result in the imposition of a Lien
under Section 412 of the Code or Section 302 or 4068 of ERISA or (b) ERISA
Events that would have a Material Adverse Effect in the aggregate.
47
ARTICLE VI
DEFAULTS
Section 6.01 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan
or shall fail to pay within 3 Domestic Business Days of the date due any
interest on any Loan, any fee under any of the Loan Documents or any other
Obligation; or
(b) any Loan Party shall fail to observe or perform any term, covenant
or agreement contained in Section 5.01, Section 5.02, Section 5.03(j) and
Section 5.04 ; or
(c) any Loan Party shall fail to observe or perform any term, covenant
or agreement contained in this Agreement or in any other Loan Document (other
than those covered by clause (a) or (b) above) for 30 days after the earlier of
(A) the date on which a Responsible Officer of the Borrower becomes aware of
such failure and (B) written notice thereof has been given to the Borrower by
the Administrative Agent at the request of any Lender; or
(d) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made); or
(e) (i) the Borrower or any of its Subsidiaries shall fail to make any
payment on any Debt of the Borrower or any such Subsidiary (other than the
Obligations) or any Guarantee in respect of Debt of any other Person, and, in
each case, such failure relates to Debt having a principal amount of $20,000,000
or more, when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), (ii) any other event
shall occur or condition shall exist under any agreement or instrument relating
to any such Debt, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt or (iii) any such Debt
shall become or be declared to be due and payable, or required to be prepaid or
repurchased (other than by a regularly scheduled required prepayment), prior to
the stated maturity thereof; or
(f) (i) the Borrower or any of the Guarantors shall admit in writing
its inability to pay its debts generally or shall make a general assignment for
the benefit of creditors, (ii) any proceeding shall be instituted by or against
the Borrower or any of the Guarantors seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts, under any
Requirement of Law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a custodian, receiver, trustee or other similar official for it
or for any substantial part of its property; provided, however, that, in the
case of any such proceedings instituted against the Borrower or any of the
Guarantors (but not instituted by the Borrower or any of the Guarantors), either
such proceedings shall remain undismissed or unstayed for a period of 30 days or
more or any action sought in such proceedings shall occur or (iii) the Borrower
or any of the Guarantors shall take any corporate, limited liability company or
partnership action to authorize any action set forth in clauses (i) and (ii)
above; or
48
(g) any member of the Controlled Group shall:
(i) fail to pay when due an amount or amounts aggregating
in excess of $15,000,000 which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA except where the failure
to so pay would not have a Material Adverse Effect; or notice of
intent to terminate a Plan or Plans which would have a Material
Adverse Effect (collectively, a "Material Plan") shall be filed under
Title IV of ERISA by any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan
against any member of the Controlled Group to enforce Section 515 of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any Material
Plan must be terminated; or
(ii) have been notified by the sponsor of a Multiemployer
Plan that it has incurred an aggregate Withdrawal Liability for all
years to such Multiemployer Plan in an amount that, when aggregated
with all other amounts then required to be paid to Multiemployer Plans
by the Controlled Group as Withdrawal Liability (determined as of the
date of such notification), exceeds $15,000,000 and it is reasonably
likely that all amounts then required to be paid to Multiemployer
Plans by the Controlled Group as Withdrawal Liability will exceed
$15,000,000; or
(iii) have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and it is
reasonably likely that as a result of such reorganization or
termination the aggregate annual contributions of the Controlled Group
to all Multiemployer Plans that are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the plan year of such Multiemployer
Plan immediately preceding the plan year in which the reorganization
or termination occurs by an amount exceeding $15,000,000; or
(h) to the extent not insured against, a final judgment or order (or
other similar proceeding) for the payment of money in excess of $20,000,000
shall be rendered against the any Loan Party or any Subsidiary and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) such judgment or order shall continue unsatisfied and
unstayed by reason of a pending appeal or otherwise for a period of 30
consecutive days; or
(i) (i) any Person or group of Persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 35% or more of the
outstanding shares of common stock of the Borrower; or (ii) at any time during
any period of twelve consecutive calendar months a majority of the Board of
Directors of the Borrower shall not consist of individuals who were either
directors of the Borrower on the first day of such period ("original directors")
or appointed as or nominated to be directors either (A) by individuals including
a majority of those of the original directors who have not, prior to such
appointment or nomination, resigned or died, or (B) by a duly constituted
committee of the Board of Directors a majority of which consists of the original
directors; or (ii) any Guarantor shall cease to be a direct, Wholly-Owned
Subsidiary of the Borrower other than in accordance with the terms of Section
5.04(d) or Section 5.04(g); or
49
(j) any provision of any Collateral Document or Article IX hereof
shall for any reason cease to be valid and binding, or enforceable against, any
Loan Party thereto, or any Loan Party shall so state in writing; or
(k) all or any substantial parts of the property of the Borrower and
its Subsidiaries (taken as a whole) shall be condemned, seized or otherwise
appropriated, or custody or control of such property shall be assumed, by any
court or governmental agency of competent jurisdiction, and such property shall
be retained for a period of thirty (30) days, which condemnation, seizure or
other appropriation could reasonably be expected to have a Material Adverse
Effect at any time up to and including the Termination Date; or
(l) any Collateral Document shall for any reason fail or cease to
create a valid Lien on any Collateral purported to be covered thereby or, except
as permitted by the Loan Documents, such Lien shall fail or cease to be a
perfected and first priority Lien or any Loan Party shall so state in writing;
or
(m) one or more of the Borrower and its Subsidiaries shall have
entered into one or more consent or settlement decrees or agreements or similar
arrangements with a Governmental Authority or one or more judgments, orders,
decrees or similar actions shall have been entered against one or more of the
Borrower and its Subsidiaries based on or arising from the violation of or
pursuant to any Environmental Law, or the generation, storage, transportation,
treatment, disposal or Release of any Contaminant and, in connection with all
the foregoing, the Borrower and its Subsidiaries are likely to incur
Environmental Liabilities and Costs that in the aggregate would have a Material
Adverse Effect in the aggregate;
then, and in every such event, the Administrative Agent shall (i) if requested
by at least four (4) Lenders having at least 50% in aggregate amount of the
Commitments, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by at least four (4) Lenders holding
at least 50% in aggregate principal amount of the Loans, by notice to the
Borrower declare the Loans (together with accrued interest thereon and all other
amounts payable under this Agreement, the Loans or the Notes) to be, and the
Loans shall thereupon become, immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower; provided that with respect to the events described in
clause (f) above with respect to the Borrower or the Guarantors, without any
notice to the Borrower or the Guarantors, as applicable, or any other act by the
Administrative Agent or the Lenders, the Commitments shall thereupon terminate
and the Loans (together with accrued interest thereon and all other amounts
payable under this Agreement, the Loans or the Notes) shall automatically become
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower. In
addition to the remedies set forth above, and subject to the terms of the
Collateral Sharing Agreement, the Collateral Agent may exercise any remedies
provided for by the Collateral Documents in accordance with the terms thereof or
any other remedies provided by applicable law.
Section 6.02 Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon being requested to do
so by any Lender and shall thereupon notify all the Lenders thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT
Section 7.01 Authorization and Action. Each Lender hereby appoints and
authorizes Citicorp to act as the Administrative Agent and Citibank to act as
the Collateral Agent under this
50
Agreement and authorizes the Administrative Agent and Collateral Agent to take
such action as agents on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent and Collateral Agent by
the terms hereof, together with such powers as are reasonably incidental thereto
(including, without limitation, their entering into, and acting pursuant to the
terms of, the Collateral Sharing Agreement). As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Loans and other amounts owing hereunder), the
Administrative Agent and Collateral Agent shall not be required to exercise any
discretion or take any action; provided, however, that the Administrative Agent
and Collateral Agent shall not be required to take any action which exposes them
to personal liability or which is contrary to any of the Loan Documents or
applicable law. Each of the Administrative Agent and Collateral Agent agree to
give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of the Loan Documents.
Section 7.02 Agents' Reliance, Etc.. Neither the Administrative Agent
nor any of their respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with any of the Loan Documents, except for their own gross negligence
or willful misconduct. Without limitation of the generality of the foregoing,
the Administrative Agent: (i) may treat the Lender that made any Advance as the
payee thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by such Lender, as assignor, and an Eligible
Assignee, as assignee as provided in Section 10.06, (ii) may consult with legal
counsel (including counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) make no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection with any
of the Loan Documents; (iv) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any of the Loan Documents on the part of the Borrower or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Loan Documents
or any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of any of the Loan Documents by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier) believed by it to be genuine and signed or sent by the proper
party or parties.
Section 7.03 Citicorp and Affiliates. With respect to its respective
Commitment and the respective Loans made by it, Citicorp shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not an agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citicorp respectively in its
individual capacity. Citicorp and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, acquire equity interests in and
generally engage in any kind of commercial banking, investment banking, trust,
financial advisory, underwriting or other business with, the Borrower, any of
its Subsidiaries and other Affiliates and any Person who may do business with or
own securities of the Borrower or any such Subsidiary or Affiliate, all as if
Citicorp was not an Agent and without any duty to account therefor, or provide
notice thereof, to the Lenders. The Lenders acknowledge that, pursuant to such
activities, Citicorp and its Affiliates may receive information regarding the
Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or an Affiliate) and
acknowledge that the Administrative Agent shall not be under any obligation to
provide such information to them.
Section 7.04 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon any Agent or any other Lender and
based on the financial
51
statements referred to, and the representations and warranties contained, in
Article IV and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
Section 7.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Loans then held by each of
them (or if no such Loans are at the time outstanding or if any such Loans are
held by Persons which are not Lenders, in accordance with their respective
Shares), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against Administrative Agent in any way relating to or arising out of any of the
Loan Documents or any action taken or omitted by such Administrative Agent under
any of the Loan Documents; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Administrative
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse Administrative Agent promptly upon
demand for its ratable share of any reasonable out-of-pocket expenses (including
counsel fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, syndication, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
the Loan Documents, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower.
Section 7.06 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower. Upon any such resignation, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent which shall
be a commercial bank organized under the laws of the United States of America or
of any State thereof or any Bank and, in each case having a combined capital and
surplus of at least $50,000,000 (and so long as no Event of Default has occurred
and is continuing, that is reasonably acceptable to the Borrower). Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents.
Section 7.07 Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
heretofore or hereafter agreed upon between the Borrower and the Administrative
Agent.
Section 7.08 Co-Agents. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement or elsewhere
herein as a "Co-Agent" or "Syndication Agent" or "Documentation Agent" or
"Arranger" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons so
identified as a "Co-Agent" or "Syndication Agent" or "Documentation Agent" or
"Arranger" shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not
52
rely, on any of the Lenders so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair.
(a) If on or prior to the first day of any Interest Period for any
Borrowing of Euro-Dollar Loans, Lenders having 50% or more of the aggregate
amount of the Commitments advise the Administrative Agent that the LIBO Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of funding their Euro-Dollar Loans for such Interest
Period, the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders (which notice may be telephonic), whereupon the
obligations of the Lenders to make Euro-Dollar Loans shall be suspended until
the Administrative Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exists. Unless the Borrower, at its option,
notifies the Administrative Agent at least one Domestic Business Day before the
date of a Borrowing of Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing, and the Loans comprising such
Borrowing shall bear interest for each day from and including the first day, to
but excluding the last day, of the Interest Period applicable thereto at the
Base Rate.
(b) If Dow Xxxxx Markets Telerate Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Administrative Agent
for determining the Euro-Dollar Rate for any Euro-Dollar Loan,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Euro-Dollar Loans,
(ii) with respect to Euro-Dollar Loans, each such Loan will
automatically, on the last day of the then existing Interest Period
therefor, be prepaid by the Borrower or be automatically Converted
into a Base Rate Loan (or if such Loan is then a Base Rate Loan, will
continue as a Base Rate Loan), and
(iii) the obligation of the Lenders to make Euro-Dollar Loans, or
to Convert Loans into Euro-Dollar Loans shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
Section 8.02 Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Lender (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
or continue Euro-
53
Dollar Loans or to Convert all or any portion of Base Rate Loans to Euro-Dollar
Loans shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this Section 8.02, such Lender shall designate a different
Euro-Dollar Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such Lender shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Concurrently with prepaying each
such Euro-Dollar Loan, the Borrower may elect to borrow a Base Rate Loan in an
equal principal amount from such Lender (on which interest and principal shall
be payable contemporaneously with the related Euro-Dollar Loans of the other
Lenders), and such Lender shall make such a Base Rate Loan.
Section 8.03 Increased Cost and Reduced Return.
(a) If, on or after the date hereof, in the case of any Loan or any
obligation to make Loans, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency:
(i) shall subject any Lender (or its Lending Office) to any
tax, duty or other charge with respect to its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans, or shall change the
basis of taxation of payments to any Lender (or its Lending Office) of
the principal of or interest on its Euro-Dollar Loans or any other
amounts due under this Agreement in respect of its Euro-Dollar Loans
or its obligation to make Euro-Dollar Loans (except for changes in the
rates of taxes excluded from the definition of Taxes set forth in
Section 10.03(b)(i); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Lender (or its Lending Office) or shall impose
on any Lender (or its Lending Office) or the London interbank market
any other condition affecting its Euro-Dollar Loans, its Notes or its
obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of making or maintaining any Euro-Dollar Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its
Lending Office) under this Agreement or under its Notes with respect thereto, by
an amount deemed by such Lender to be material, then, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduction.
(b) If after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Lending Office) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, have or would have the effect of reducing the
rate of return on such Lender's capital as a consequence of its obligations
hereunder to a
54
level below that which such Lender could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, within 15 days after demand by such Lender (with a copy
to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 8.03, or any payment or indemnification under Section 10.03(b) and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation, payment or indemnification and
will not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender; provided that nothing in this Section 8.03 shall affect or postpone any
of the rights of a Lender under, or obligations of the Borrower pursuant to, the
provisions of this Section 8.03 or Section 10.03(b) hereof. A certificate of any
Lender claiming compensation under this Section 8.03 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error; provided that the determinations set forth in
such certificate are made reasonably and in good faith. In determining such
amount, such Lender may use any reasonable averaging and attribution methods. If
any Lender demands compensation from the Borrower under this Section 8.03 more
than 180 days after such Lender had knowledge of the occurrence of the event
giving rise to such claim for compensation, the Borrower shall not be obligated
to reimburse such Lender for amounts incurred as a result of the occurrence of
such event more than 180 days prior to the date on which the Lender made such
demand (provided that if the event giving rise to claim for compensation or
indemnification is retroactive, then such 180 day period shall be extended to
include the period of retroactive effect).
Section 8.04 Substitution of Loans for Affected Euro-Dollar Loans. If
(i) the obligation of any Lender to make Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Lender has demanded compensation under
Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Lender through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Lender, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Lender as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Loans of the other Lenders); and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans, instead.
Section 8.05 Substitution of Lender. If (i) the obligation of any
Lender to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Lender has demanded compensation under Section 8.03 or payment or
indemnification under Section 10.03(b), the Borrower shall have the right, with
the assistance of the Administrative Agent, to seek a mutually satisfactory
substitute lender or lenders (which may be one or more of the Lenders) to
purchase the Loans and assume the Commitment of such Lender; provided that (i)
no default or Event of Default has occurred and is continuing, (ii) the Borrower
has satisfied all of its obligations under this Agreement with respect to such
Lender and (iii) if such substitute lender is not an existing Lender, the
Borrower has paid to the Administrative Agent a $3,500 administration fee.
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ARTICLE IX
GUARANTEE
Section 9.01 Unconditional Guarantee.
(a) For valuable consideration, receipt whereof is hereby
acknowledged, and to induce each Lender to make Loans to the Borrower and to
induce the Administrative Agent to act hereunder, each Guarantor hereby
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, to each Guarantied Party (such guaranty, together with the terms of this
Article IX, the "Subsidiary Guaranty") the full and punctual payment when due,
whether at stated maturity or earlier, by acceleration, mandatory prepayment or
otherwise in accordance herewith or any other Loan Document, of all the
Obligations, whether or not from time to time reduced or extinguished or
hereafter increased or incurred, whether or not recovery may be or hereafter may
become barred by any statute of limitations, whether or not enforceable as
against the Borrower, whether now or hereafter existing, and whether due or to
become due, including principal, interest (including interest at the contract
rate applicable upon default accrued or accruing after the commencement of any
proceeding under the Bankruptcy Code, whether or not such interest is an allowed
claim in such proceeding), fees and costs of collection. This Subsidiary
Guaranty constitutes a guaranty of payment and not of collection. Without
limiting the generality of the foregoing, each Guarantor's liability shall
extend to all amounts that constitute part of the Obligations and would be owed
by the Borrower to the Administrative Agent or any other Lender under this
Agreement but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Borrower.
(b) Each Guarantor further agrees that, if (i) any payment made by the
Borrower or any other person and applied to the Obligations is at any time
annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or (ii) the
proceeds of Collateral are required to be returned by any Guarantied Party to
the Borrower, its estate, trustee, receiver or any other party, including any
Guarantor, under any bankruptcy law, equitable cause or any other Requirement of
Law, then, to the extent of such payment or repayment, any such Guarantor's
liability hereunder (and any Lien or other Collateral securing such liability)
shall be and remain in full force and effect, as fully as if such payment had
never been made. If, prior to any of the foregoing, this Subsidiary Guaranty
shall have been cancelled or surrendered (and if any Lien or other Collateral
securing such Guarantor's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender), this Subsidiary
Guaranty (and such Lien or other Collateral) shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of any such
Guarantor in respect of the amount of such payment (or any Lien or other
Collateral securing such obligation).
Section 9.02 Guarantee Absolute. Each Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Guarantied
Party or the Administrative Agent with respect thereto. The obligations of each
Guarantor under this Article IX are independent of the Obligations, and a
separate action or actions may be brought and prosecuted against such Guarantor
to enforce this Article IX, irrespective of whether any action is brought
against the Borrower or whether the Borrower is joined in any such action or
actions. Each Guarantor hereby waives any defense of a surety or guarantor or
any other obligor on any obligations arising in connection with or in respect of
any of the following and hereby agrees that its obligations under this
Subsidiary Guaranty are absolute and unconditional and shall not be discharged
or otherwise affected as a result of any of the following:
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(a) the invalidity or unenforceability of any of the Borrower's
Obligations or any security for, or other guaranty of the Obligations or any
part of them, or the lack of perfection or continuing perfection or failure of
priority of any security for the Obligations or any part of them;
(b) the absence of any attempt to collect the Obligations or any part
of them from the Borrower or other action to enforce the same;
(c) failure by any Guarantied Party to take any steps to perfect and
maintain any Lien on, or to preserve any rights to, any Collateral;
(d) any Guarantied Party's election, in any proceeding instituted
under chapter 11 of the Bankruptcy Code, of the application of Section
1111(b)(2) of the Bankruptcy Code;
(e) any borrowing or grant of a Lien by the Borrower, as
debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code;
(f) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of any Guarantied Party's claim (or claims) for repayment of the
Obligations;
(g) any use of cash collateral under Section 363 of the Bankruptcy
Code;
(h) any agreement or stipulation as to the provision of adequate
protection in any bankruptcy proceeding;
(i) the avoidance of any Lien in favor of the Guarantied Parties or
any of them for any reason;
(j) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against the Borrower, any Guarantor or any of the Borrower's other Subsidiaries,
including any discharge of, or bar or stay against collecting, any Obligation
(or any part of them or interest thereon) in or as a result of any such
proceeding;
(k) failure by any Guarantied Party to file or enforce a claim against
the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(l) any action taken by any Guarantied Party if such action is
authorized hereby;
(m) any election following the occurrence of an Event of Default by
any Guarantied Party to proceed separately against the personal property
Collateral in accordance with such Guarantied Party's rights under the UCC or,
if the Collateral consists of both personal and real property, to proceed
against such personal and real property in accordance with such Guarantied
Party's rights with respect to such real property; or
(n) any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor or any other obligor on
any obligations, other than the payment in full of the Obligations.
57
Section 9.03 Waivers.
(a) Each Guarantor hereby expressly waives promptness, diligence,
notice of acceptance, presentment, demand for payment or performance and protest
and notice of protest, notice of acceptance and any other notice in respect of
the Obligations or any part of them, and any defense arising by reason of any
disability or other defense of the Borrower. Each Guarantor shall not, until the
Obligations are irrevocably paid in full and the Commitments have been
terminated, assert any claim or counterclaim it may have against the Borrower or
set off any of its obligations to the Borrower against any obligations of the
Borrower to it. In connection with the foregoing, each Guarantor covenants that
its obligations hereunder shall not be discharged, except by complete
performance. Without limitation, each Guarantor waives the provisions of
Sections 49-25 and 49-26 of the Virginia Code, as amended, and comparable
provisions in other states of formation, respectively, relating to the rights of
a guarantor to require a creditor to xxx and the effect of failure of a creditor
to act thereon.
(b) Each Guarantor hereby waives any right to revoke this Subsidiary
Guaranty, and acknowledges that this Subsidiary Guaranty is continuing in nature
and applies to all Obligations, whether existing now or in the future.
(c) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated herein
and that the waivers set forth in this Article IX are knowingly made in
contemplation of such benefits.
Section 9.04 Subrogation. The Guarantors will not exercise any rights
that they may now or hereafter acquire against the Borrower or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
the Obligations under this Agreement, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Administrative Agent or
any other Lender against the Borrower or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Obligations and all other amounts payable under this Subsidiary
Guaranty shall have been paid in full in cash and the Commitments shall have
expired or terminated. If any amount shall be paid to any Guarantor in violation
of the preceding sentence at any time prior to the later of the payment in full
in cash of the Obligations and all other amounts payable under this Subsidiary
Guaranty and the Termination Date, such amount shall be held in trust for the
benefit of the Administrative Agent and the other Lenders and shall forthwith be
paid to the Administrative Agent to be credited and applied to the Obligations
and all other amounts payable under this Subsidiary Guaranty, whether matured or
unmatured, in accordance with the terms of this Agreement, or to be held as
collateral for any Obligations or other amounts payable under this Subsidiary
Guaranty thereafter arising. If (i) any Guarantor shall make payment to the
Administrative Agent or any other Lender of all or any part of the Obligations,
(ii) all the Obligations and all other amounts payable under this Subsidiary
Guaranty shall be paid in full in cash and (iii) the Termination Date shall have
occurred, the Administrative Agent and the other Lenders will, at such
Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Obligations resulting from such payment by such Guarantor. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Agreement and that the waiver
set forth in this section is knowingly made in contemplation of such benefits.
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Section 9.05 Subordination. Each Guarantor hereby agrees that any Debt
of the Borrower now or hereafter owing to any Guarantor, whether heretofore, now
or hereafter created (the "Guarantor Subordinated Debt"), is hereby subordinated
to all of the Obligations and that, except as permitted under Section 5.04(f) of
the Credit Agreement, the Guarantor Subordinated Debt shall not be paid in whole
or in part until the Obligations have been paid in full and this Subsidiary
Guaranty is terminated and of no further force or effect. No Guarantor shall
accept any payment of or on account of any Guarantor Subordinated Debt at any
time in contravention of the foregoing. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay to the Administrative
Agent any payment of all or any part of the Guarantor Subordinated Debt and any
amount so paid to the Administrative Agent shall be applied to payment of the
Obligations as provided in Section 2.12(c) of the Credit Agreement. Each payment
on the Guarantor Subordinated Debt received in violation of any of the
provisions hereof shall be deemed to have been received by such Guarantor as
trustee for the Guarantied Parties and shall be paid over to the Administrative
Agent immediately on account of the Obligations, but without otherwise affecting
in any manner such Guarantor's liability hereof. Each Guarantor agrees to file
all claims against the Borrower in any bankruptcy or other proceeding in which
the filing of claims is required by law in respect of any Guarantor Subordinated
Debt, and the Administrative Agent shall be entitled to all of such Guarantor's
rights thereunder. If for any reason a Guarantor fails to file such claim at
least ten Domestic Business Days prior to the last date on which such claim
should be filed, such Guarantor hereby irrevocably appoints the Administrative
Agent as its true and lawful attorney-in-fact and is hereby authorized to act as
attorney-in-fact in such Guarantor's name to file such claim or, in the
Administrative Agent's discretion, to assign such claim to and cause proof of
claim to be filed in the name of the Administrative Agent or its nominee. In all
such cases, whether in administration, bankruptcy or otherwise, the person or
persons authorized to pay such claim shall pay to the Administrative Agent the
full amount payable on the claim in the proceeding, and, to the full extent
necessary for that purpose, each Guarantor hereby assigns to the Administrative
Agent all of such Guarantor's rights to any payments or distributions to which
such Guarantor otherwise would be entitled. If the amount so paid is greater
than such Guarantor's liability hereunder, the Administrative Agent shall pay
the excess amount to the party entitled thereto. In addition, each Guarantor
hereby irrevocably appoints the Administrative Agent as its attorney-in-fact to
exercise all of such Guarantor's voting rights in connection with any bankruptcy
proceeding or any plan for the reorganization of the Borrower.
Section 9.06 Default; Remedies. The obligations of each Guarantor
hereunder are independent of and separate from the Obligations. If any
Obligation is not paid when due, or upon any Event of Default hereunder or upon
any default by the Borrower as provided in any other instrument or document
evidencing all or any part of the Obligations, the Administrative Agent may, at
its sole election, proceed directly and at once, without notice, against any
Guarantor to collect and recover the full amount or any portion of the
Obligations then due, without first proceeding against the Borrower or any other
guarantor of the Obligations, or against any Collateral under the Loan Documents
or joining the Borrower or any other guarantor in any proceeding against any
Guarantor. At any time after maturity of the Obligations, the Administrative
Agent may (unless the Obligations have been irrevocably paid in full), without
notice to any Guarantor and regardless of the acceptance of any Collateral for
the payment hereof, appropriate and apply toward the payment of the Obligations
(a) any indebtedness due or to become due from any Guarantied Party to such
Guarantor and (b) any moneys, credits or other property belonging to such
Guarantor at any time held by or coming into the possession of any Guarantied
Party or any of its respective Affiliates.
Section 9.07 Irrevocability. With respect to each Guarantor, this
Subsidiary Guaranty shall be irrevocable as to the Obligations (or any part
thereof) until (i) the Commitments have been terminated and all monetary
Obligations then outstanding have been irrevocably repaid in cash or (ii) the
sale or other disposition of such Guarantor (or all or substantially all of the
assets thereof) permitted by this Agreement (or permitted pursuant to a waiver
or consent of a transaction otherwise
59
prohibited by this Agreement). Upon such cancellation and at the written request
of any Guarantor or its successors or assigns, and at the cost and expense of
such Guarantor or its successors or assigns, the Administrative Agent shall
execute in a timely manner a satisfaction of this Subsidiary Guaranty and such
instruments, documents or agreements as are necessary or desirable to evidence
the termination of this Subsidiary Guaranty.
Section 9.08 Setoff. Upon the occurrence and during the continuance of
an Event of Default, each Guarantied Party and each Affiliate of a Guarantied
Party may, without notice to any Guarantor and regardless of the acceptance of
any security or collateral for the payment hereof, appropriate and apply toward
the payment of all or any part of the Obligations (a) any indebtedness due or to
become due from such Guarantied Party or Affiliate to such Guarantor and (b) any
moneys, credits or other property belonging to such Guarantor, at any time held
by, or coming into, the possession of such Guarantied Party or Affiliate.
Section 9.09 No Marshalling. Each Guarantor consents and agrees that
no Guarantied Party or Person acting for or on behalf of any Guarantied Party
shall be under any obligation to marshal any assets in favor of any Guarantor or
against or in payment of any or all of the Obligations.
Section 9.10 Enforcement; Amendments; Waivers. No delay on the part of
any Guarantied Party in the exercise of any right or remedy arising under this
Subsidiary Guaranty, the Credit Agreement, any other Loan Document or otherwise
with respect to all or any part of the Obligations, the Collateral or any other
guaranty of or security for all or any part of the Obligations shall operate as
a waiver thereof, and no single or partial exercise by any such Person of any
such right or remedy shall preclude any further exercise thereof. No
modification or waiver of any provision of this Subsidiary Guaranty shall be
binding upon any Guarantied Party, except as expressly set forth in a writing
duly signed and delivered by the party making such modification or waiver.
Failure by any Guarantied Party at any time or times hereafter to require strict
performance by the Borrower, any Guarantor, any other guarantor of all or any
part of the Obligations or any other Person of any provision, warranty, term or
condition contained in any Loan Document now or at any time hereafter executed
by any such Persons and delivered to any Guarantied Party shall not waive,
affect or diminish any right of any Guarantied Party at any time or times
hereafter to demand strict performance thereof and such right shall not be
deemed to have been waived by any act or knowledge of any Guarantied Party, or
its respective agents, officers or employees, unless such waiver is contained in
an instrument in writing, directed and delivered to the Borrower or such
Guarantor, as applicable, specifying such waiver, and is signed by the party or
parties necessary to give such waiver under the Credit Agreement. No waiver of
any Event of Default by any Guarantied Party shall operate as a waiver of any
other Event of Default or the same Event of Default on a future occasion, and no
action by any Guarantied Party permitted hereunder shall in any way affect or
impair any Guarantied Party's rights and remedies or the obligations of any
Guarantor under this Subsidiary Guaranty. Any determination by a court of
competent jurisdiction of the amount of any principal or interest owing by the
Borrower to a Guarantied Party shall be conclusive and binding on each Guarantor
irrespective of whether such Guarantor was a party to the suit or action in
which such determination was made.
Section 9.11 Successors and Assigns. This Subsidiary Guaranty shall be
binding upon each Guarantor and upon the successors and assigns of such
Guarantor and shall inure to the benefit of the Guarantied Parties and their
respective successors and assigns; all references herein to the Borrower and to
the Guarantors shall be deemed to include their respective successors and
assigns. The successors and assigns of the Guarantors and the Borrower shall
include, without limitation, their respective receivers, trustees and
debtors-in-possession. All references to the singular shall be deemed to include
the plural where the context so requires.
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Section 9.12 Reliance. Each Guarantor hereby assumes responsibility
for keeping itself informed of the financial condition of the Borrower and any
endorser and other guarantor of all or any part of the Obligations, and of all
other circumstances bearing upon the risk of nonpayment of the Obligations, or
any part thereof, that diligent inquiry would reveal, and each Guarantor hereby
agrees that no Guarantied Party shall have any duty to advise any Guarantor of
information known to it regarding such condition or any such circumstances. In
the event any Guarantied Party, in its sole discretion, undertakes at any time
or from time to time to provide any such information to any Guarantor, such
Guarantied Party shall be under no obligation (a) to undertake any investigation
not a part of its regular business routine, (b) to disclose any information that
such Guarantied Party, pursuant to accepted or reasonable commercial finance or
banking practices, wishes to maintain confidential or (c) to make any other or
future disclosures of such information or any other information to any
Guarantor.
Section 9.13 Survival. This Subsidiary Guaranty is a continuing
guarantee and shall (a) remain in full force and effect until payment in full
(after the Termination Date) of the Obligations and all other amounts payable
under this Subsidiary Guaranty, (b) be binding upon the Guarantors, their
successors and assigns, (c) inure to the benefit of and be enforceable by each
Lender (including each assignee Lender pursuant to Section 10.06) and the
Administrative Agent and their respective successors, transferees and assigns
and (d) shall be reinstated if at any time any payment to a Lender or the
Administrative Agent hereunder is required to be restored by such Lender or the
Administrative Agent. Without limiting the generality of the foregoing clause
(c), each Lender may assign or otherwise transfer its interest in any Loan to
any other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to such Lender
herein or otherwise.
Section 9.14 Limitation of Subsidiary Guaranty. Any term or provision
of this Subsidiary Guaranty or any other Loan Document to the contrary
notwithstanding, the maximum aggregate amount of the Obligations for which any
Guarantor shall be liable shall not exceed the maximum amount for which such
Guarantor can be liable without rendering this Subsidiary Guaranty or any other
Loan Document, as it relates to such Guarantor, subject to avoidance under
applicable law relating to fraudulent conveyance or fraudulent transfer
(including section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law) (collectively, "Fraudulent Transfer Laws"), in each case
after giving effect (a) to all other liabilities of such Guarantor, contingent
or otherwise, that are relevant under such Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Guarantor in respect
of intercompany Debt to the Borrower to the extent that such Debt would be
discharged in an amount equal to the amount paid by the Guarantor hereunder) and
(b) to the value as assets of such Guarantor (as determined under the applicable
provisions of such Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights held by such Guarantor
pursuant to (i) applicable law or (ii) any agreement, if any, providing for an
equitable allocation among such Guarantor and other Subsidiaries or Affiliates
of the Borrower of obligations arising under this Subsidiary Guaranty or other
guaranties of the Obligations by such parties.
Section 9.15 Contribution. To the extent that any Guarantor shall be
required hereunder to pay a portion of the Obligations exceeding the greater of
(a) the amount of the economic benefit actually received by such Guarantor from
the Loans and (b) the amount such Guarantor would otherwise have paid if such
Guarantor had paid the aggregate amount of the Obligations (excluding the amount
thereof repaid by the Borrower) in the same proportion as such Guarantor's net
worth at the date enforcement is sought hereunder bears to the aggregate net
worth of all the Guarantors at the date enforcement is sought hereunder, then
such Guarantor shall be reimbursed by such other Guarantors for the amount of
such excess, pro rata, based on the respective net worths of such other
Guarantors at the date enforcement hereunder is sought.
Section 9.16 Authorization; Other Agreements
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The Guarantied Parties are hereby authorized, without notice to, or demand
upon, any Guarantor, which notice and demand requirements each are expressly
waived hereby, and without discharging or otherwise affecting the obligations of
any Guarantor hereunder (which obligations shall remain absolute and
unconditional notwithstanding any such action or omission to act), from time to
time, to do each of the following:
(a) supplement, renew, extend, accelerate or otherwise change the time
for payment of, or other terms relating to, the Obligations, or any part of
them, or otherwise modify, amend or change the terms of any promissory note or
other agreement, document or instrument (including the other Loan Documents) now
or hereafter executed by the Borrower and delivered to the Guarantied Parties or
any of them, including any increase or decrease of principal or the rate of
interest thereon;
(b) waive or otherwise consent to noncompliance with any provision of
any instrument evidencing the Obligations, or any part thereof, or any other
instrument or agreement in respect of the Obligations (including the other Loan
Documents) now or hereafter executed by the Borrower and delivered to the
Guarantied Parties or any of them;
(c) accept partial payments on the Obligations;
(d) receive, take and hold additional security or collateral for the
payment of the Obligations or any part of them and exchange, enforce, waive,
substitute, liquidate, terminate, abandon, fail to perfect, subordinate,
transfer, otherwise alter and release any such additional security or
collateral;
(e) settle, release, compromise, collect or otherwise liquidate the
Obligations or accept, substitute, release, exchange or otherwise alter, affect
or impair any security or collateral for the Obligations or any part of them or
any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other guarantors,
makers or endorsers of the Obligations or any part of them and otherwise deal
with the Borrower or any other guarantor, maker or endorser;
(g) apply to the Obligations any payment or recovery (x) from the
Borrower, from any other guarantor, maker or endorser of the Obligations or any
part of them or (y) from any Guarantor in such order as provided herein, in each
case whether such Obligations are secured or unsecured or guaranteed or not
guaranteed by others;
(h) apply to the Obligations any payment or recovery from any
Guarantor of the Obligations or any sum realized from security furnished by such
Guarantor upon its indebtedness or obligations to the Guarantied Parties or any
of them, in each case whether or not such indebtedness or obligations relate to
the Obligations; and
(i) refund at any time any payment received by any Guarantied Party in
respect of any Obligation, and payment to such Guarantied Party of the amount so
refunded shall be fully guaranteed hereby even though prior thereto this
Subsidiary Guaranty shall have been cancelled or surrendered (or any release or
termination of any Collateral by virtue thereof), and such prior cancellation or
surrender shall not diminish, release, discharge, impair or otherwise affect the
obligations of any Guarantor hereunder in respect of the amount so refunded (and
any Collateral so released or terminated shall be reinstated with respect to
such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason
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of any judicial, non-judicial or other proceeding in respect of the Obligations
that impairs any subrogation, reimbursement or other right of such Guarantor).
Section 9.17 Additional Guarantors. Each of the Loan Parties agrees
that, if, pursuant to Section 5.03(i), the Borrower shall be required to cause
any Domestic Subsidiary that is not a Guarantor to become a Guarantor hereunder,
or if for any reason the Borrower desires any such Subsidiary to become a
Guarantor hereunder, such Subsidiary shall execute and deliver to the
Administrative Agent a Guarantor Joinder Agreement in substantially the form of
Exhibit G (Guarantor Joinder Agreement) attached hereto and shall thereafter for
all purposes be a party hereto and have the same rights, benefits and
obligations as a Guarantor party hereto on the Effective Date.
Section 9.18 Collateral. Each Guarantor hereby acknowledges and agrees
that its obligations under this Subsidiary Guaranty are secured pursuant to the
terms and provisions of the Collateral Documents executed by it in favor of the
Collateral Agent, for the benefit of the Secured Parties, and covenants that it
shall not grant any Lien with respect to its property in favor, or for the
benefit, of any Person other than the Collateral Agent, for the benefit of the
Secured Parties or as permitted under this Agreement.
Section 9.19 Costs and Expenses. Each Guarantor agrees to pay or
reimburse the Administrative Agent and each of the other Guarantied Parties upon
demand for all out-of-pocket costs and expenses, including reasonable attorneys'
fees (including allocated costs of internal counsel and costs of settlement),
incurred by the Administrative Agent and such other Guarantied Parties in
enforcing this Subsidiary Guaranty or any security therefor or exercising or
enforcing any other right or remedy available in connection herewith or
therewith.
Section 9.20 Waiver of Consequential Damages. EACH GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY
LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGE IN ANY LEGAL ACTION OR PROCEEDING IN RESPECT OF THIS
SUBSIDIARY GUARANTY OR ANY OTHER LOAN DOCUMENT.
ARTICLE X
MISCELLANEOUS
Section 10.01 Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
writing) and mailed, telecopied, emailed or delivered, if to the Borrower or the
Guarantors, at 0 Xxxxx 0xx Xxxxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attn: President,
telecopier no. (000) 000-0000, with a copy to Xxxxxxx Xxxxx, General Counsel,
telecopier no. (000) 000-0000, email address: xxxxxxx.xxxxx@xxxxxxxxxxxxxx.xxx;
if to an Additional Lender, at its Domestic Lending Office specified in Schedule
I hereto; if to any other Lender, at its Domestic Lending Office specified in
the Assignment and Acceptance pursuant to which it became a Lender; and if to
the Administrative Agent or Collateral Agent, at its address at Xxx Xxxxx Xxx,
Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx, 00000, Attn: Xxxxxxxx X. Xxxxxx, telecopier no.
000-000-0000, email address: xxxxxxxx.x.xxxxxx@xxxxxxxxx.xxx; or such other
address, telecopy number or email address as such party may hereafter specify
for the purpose by notice to the Administrative Agent and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (ii) if given by telecopy or
email, when such telecopy or email has been received by the addressee thereof,
or (iii) if given by any other means, when delivered at the address specified in
this Section 10.01; provided
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that notices to the Administrative Agent under Article II or Article VIII shall
not be effective until received.
Section 10.02 No Waivers. No failure or delay by the Administrative
Agent or any Lender in exercising any right, power or privilege hereunder or
under any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 10.03 Expenses; Taxes; Indemnification.
(a) Expenses. The Borrower agrees to pay on demand:
(i) all costs and expenses (including, without limitation,
counsel fees and expenses) incurred by the Administrative Agent and
Xxxxxxx Xxxxx Barney Inc. (other than costs and expenses which are
covered by subparagraph (ii) immediately following) in connection with
the preparation, negotiation, execution and delivery of this Agreement
and the other Loan Documents delivered concurrently therewith; and
(ii) all costs and expenses, if any (including, without
limitation, counsel fees and expenses), (A) incurred by the
Administrative Agent in connection with any and all amendments to,
replacements for or modifications of any of the Loan Documents, in
each case either initiated by the Borrower or provided for in this
Agreement, (B) incurred by the Administrative Agent in connection with
any and all waivers of rights or remedies, or granting of any consent,
by the Administrative Agent under the Loan Documents, (C) incurred by
the Administrative Agent or any Lender in connection with the
enforcement of the Loan Documents and the other documents to be
delivered under the Loan Documents, or any of the rights or remedies
of the Administrative Agent or any Lender thereunder, including,
without limitation, the fees and expenses of counsel incurred in any
out-of-court workout or in any bankruptcy case, and (D) incurred by
the Administrative Agent or any Lender in connection with
investigation of any Default or alleged Default under any of the Loan
Documents, together with any collection and other enforcement measures
or proceedings resulting from any Event of Default; provided, however,
that with respect to clauses (C) and (D) of this Section
10.03(a)(ii),such counsel fees and expenses shall be limited to the
counsel fees and expenses of not more than one law firm retained by
the Administrative Agent, and not more than one additional law firm
retained by the Lenders, as a group.
(b) Taxes.
(i) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.12, free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative
Agent, (A) taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any
political subdivision thereof or in which its principal office is
located, (B) taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction of such Lender's applicable Lending Office
or any political subdivision thereof, (C) taxes imposed upon or
measured by the overall net income of such Lender by the United States
of America or any political subdivision or taxing
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authority thereof or therein, and (D) United States income taxes
imposed under any law (including without limitation any statute,
treaty, ruling, determination or regulation) in effect on the date
hereof in the case of each Lender listed on the signature pages hereof
and on the effective date of the assignment pursuant to which it
became a Lender in the case of each other Lender (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the
Administrative Agent, (x) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
10.03(b), such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (y) the Borrower shall make such deductions and
(z) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from the execution,
delivery or registration of, or otherwise similarly with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
(iii) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this (b)) and the Borrower
will indemnify each Lender and the Administrative Agent for the full
amount of Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this (b) in each case paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto (except to the extent arising from the failure of such Lender
or the Administrative Agent to make any filing or payment within such
person's control), whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made
within 30 days from the date such Lender or the Administrative Agent
(as the case may be) makes written demand therefor. Such demand shall
be made no later than 180 days after the earlier of (A) the date on
which such Lender or the Administrative Agent pays such Taxes or Other
Taxes or (B) the date on which the relevant Governmental Authority
makes written demand for payment of such Taxes or Other Taxes.
(iv) Within 30 days after the date of any payment of Taxes,
the Borrower will furnish to the Administrative Agent, at its address
referred to in Section 10.01, an original or a copy of an official
receipt (if any) or other evidence of the Borrower's payment thereof.
(v) Each Lender organized under the laws of a jurisdiction
outside the United States (each, a "Non-U.S. Lender"), on or prior to
the date of its execution and delivery of this Agreement in the case
of each Lender and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to
do so), shall provide the Borrower with Internal Revenue Service Form
W-8BEN or W-8ECI, as appropriate, or any successor form prescribed by
the Internal Revenue Service, to establish that such Lender is not
subject to United States withholding tax with respect to any payments
to such Lender payable under this Agreement (or, in the case of a
Non-U.S. Lender that is not a bank for purposes of
65
Section 881(c) of the Code, such other documentation as may be
reasonably necessary to establish that interest payable to such Lender
is exempt from United States withholding tax as portfolio interest).
If the form provided by a Lender at the time such Lender first becomes
a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section
10.03(b)(i).
(vi) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form described in
Section 10.03(b)(v) (other than if such failure is due to a change in
law occurring subsequent to the date on which a form originally was
required to be provided, or if such form otherwise is not required
under the first sentence of subsection (v) above), such Lender shall
not be entitled to indemnification under (b) with respect to Taxes
imposed by the United States or any political subdivision thereof;
provided, however, that should a Lender become subject to Taxes
because of its failure to deliver a form required to be delivered
hereunder, the Borrower shall, at the expense of such Lender, take
such steps as the Lender shall reasonably request to assist the Lender
to recover such Taxes.
(vii) If a Lender or the Administrative Agent actually
receives a refund or actually realizes the benefit of a credit or
reduction in respect of any Taxes or Other Taxes for which it has
received an indemnity payment from the Borrower, such Lender or the
Administrative Agent shall within 45 days from the date of such
receipt or realization pay over the amount of such refund, credit or
reduction to the Borrower (but only to the extent of indemnity
payments made or other amounts paid by the Borrower under this (b)
with respect to such Taxes or Other Taxes), net of all reasonable
out-of-pocket expenses of such Lender or the Administrative Agent and
without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund, credit or
reduction), provided that the Borrower (upon written request of such
Lender or the Administrative Agent) agrees to repay the amount paid
over to the Borrower to such Lender or the Administrative Agent in the
event such Lender or the Administrative Agent is required to repay
such refund, credit or reduction to such Governmental Authority.
Nothing in this paragraph shall require any Lender or the
Administrative Agent to make available to the Borrower any tax return
or other information that the Lender or the Administrative Agent deems
to be confidential or proprietary.
(viii) The Borrower shall not be required to indemnify any Lender
(including, for purposes of this paragraph, any participant or other
transferee of any rights of a Lender) or the Administrative Agent, or
to pay any other amount to any Lender or the Administrative Agent, in
respect of any Taxes pursuant to this (b) to the extent that such
Taxes were applicable on the date such Lender or Administrative Agent
became a party to this Agreement or, with respect to payments to a new
Lending Office, the date such Lender designated such Lending Office;
provided, however, that the preceding clause shall not apply (A) to
any Lender or new Lending Office that becomes a Lender or Lending
Office as a result of an assignment or designation made at the request
of the Borrower or (B) to the extent the indemnity payment or other
amount does not exceed the indemnity payment or other amount that the
Lender making the assignment, or making the designation of such new
Lending Office, would have been entitled to receive in the absence of
such assignment or designation.
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(ix) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of
the Borrower contained in this (b)shall survive the payment in full of
principal and interest hereunder.
(c) Indemnification. The Borrower agrees to indemnify the
Administrative Agent and each Lender and their respective Affiliates, and the
officers, directors, employees, agents and advisors of each of the foregoing
(collectively, the "Indemnitees"), and hold each Indemnitee harmless from and
against any and all liabilities, damages, costs and expenses of any kind
(including, without limitation, the reasonable fees and disbursements of counsel
for any Indemnitee in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitee shall be designated a party
thereto) which may be incurred by such Indemnitee arising out of this Agreement
or any of the other Loan Documents or any actual or proposed use of proceeds of
Loans hereunder; provided that no Indemnitee shall have the right to be
indemnified hereunder for its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
(d) Prepayment of Euro-Dollar Loans. If any payment of principal of
any Euro-Dollar Loans is made other than on the last day of the Interest Period
for such Loan, as a result of a payment pursuant to Section 2.10(b)or
acceleration of the maturity of the Loans pursuant to Section 6.01 or for any
other reason, or if any Lender shall be forced to sell, assign or transfer any
of its interest hereunder or any Borrowing pursuant to Section 10.06(a) due to
the substitution of such Lender pursuant to Section 8.05, the Borrower shall,
upon demand by any Lender or any bank or other entity (an "Assignee") to which
any Lender has sold, assigned, transferred or granted any participation in any
of its interest hereunder or any Borrowing pursuant to Section 10.06(a) (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender or Assignee any amounts required to
compensate such Lender or Assignee for any additional losses, costs or expenses
which it may reasonably incur as a result of such payment, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender or Assignee to fund or maintain such Loan.
(e) Survival. The obligations of the Borrower under this Section 10.03
shall survive the termination of this Agreement, the termination of the
Commitment of any Lender hereunder and payment of the Loans.
Section 10.04 Sharing of Set-Offs. Each Lender agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Loan held by it which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal and
interest due with respect to any Loan held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans held by the Lenders shall be
shared by the Lenders pro rata; provided that nothing in this Section 10.04
shall impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Loans. The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Loan, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 10.04 would apply, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 10.04 to
share in the
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benefits of any recovery on such secured claim. The Borrower hereby authorizes
Citicorp, in accordance with the provisions of this Section 10.04, to so set-off
and apply any and all such deposits held and other indebtedness owing by
Citicorp to or for the credit or the account of the Borrower and hereby
authorizes Citicorp to permit such set-off and application by Citicorp.
Section 10.05 Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Lenders (and, if
the rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment, waiver or modification
shall, unless signed by all the Lenders affected thereby, (i) increase the
Commitment of any Lender or increase the aggregate amount of the Commitments or
subject any Lender to any additional obligation, (ii) reduce the principal of or
rate of interest on any Loan or any fees hereunder, (iii) postpone the date
fixed for any payment of principal of or interest on any loan or any fees
hereunder, (iv) release the Borrower from its payment Obligations or release AT
Xxxxxx from its obligations under the AT Guaranty (except as permitted by
Section 5.04(g)), (v) amend this Section 10.05, or (vi) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Loans, or the
number of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section 10.05 or any other provision of this
Agreement.
Section 10.06 Successors and Assigns.
(a) This Agreement shall become effective on the Effective Date and
thereafter this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Borrower and the Guarantors shall not have the right to assign their respective
rights hereunder or any interest herein, except in connection with a fundamental
change permitted by Section 5.04(g). On the Effective Date, the Existing Credit
Agreement shall be amended and restated in its entirety by this Agreement and
the Existing Credit Agreement shall thereafter be of no further force and effect
except as to evidence the incurrence by the Borrower of the Obligations
thereunder and of AT Xxxxxx of its obligations as a guarantor thereunder. The
terms and conditions of this Agreement and the rights and remedies of the
respective parties under this Agreement and the other Loan Documents, shall
apply to all of the Obligations incurred under the Existing Credit Agreement and
the Notes issued in connection therewith. It is expressly understood and agreed
by the parties hereto that this Agreement is in no way intended to constitute a
novation of the obligations and liabilities existing under the Existing Credit
Agreement or evidence payment of all or any of such obligations and liabilities.
All references to the Existing Credit Agreement (or to any amendment or any
amendment and restatement thereof) in the Loan Documents shall be deemed to
refer to this Agreement.
(b) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement and the other Loan
Documents (with the consent of the Administrative Agent and, as long as no Event
of Default is continuing, the Borrower (such consent not to be unreasonably
withheld) including, without limitation, all or a portion of its Commitment and
the Loans owing to it and the Notes held by it); provided, however, that (A)
each such assignment shall be of a constant, and not a varying, percentage of
all rights and obligations under this Agreement and the other Loan Documents,
(B) the amount of the Commitment of the assigning Lender being assigned pursuant
to each such assignment shall in no event be less than $5,000,000 and shall be
an integral multiple of $1,000,000, (C) upon notice to the Borrower and the
Administrative Agent by the assigning Lender, the consent of the Borrower and
the Administrative Agent shall not be required with respect to any such
assignment by any Lender to a Lender or an Affiliate of such Lender (subject to
the proviso in clause (iii) of the definition of "Eligible Assignee"), (D) the
parties to each such assignment shall
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execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, in substantially the
form of Exhibit B hereto, and (E) the parties to each such assignment shall
execute and deliver to the Administrative Agent any Note or Notes subject to
such assignment and the assigning Lender shall pay or cause to be paid to the
Administrative Agent (except in the case of an assignment to an Affiliate of
such Lender) a processing and recordation fee of $3,500. From and after the
effective date of any such assignment (1) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such assignment, have the rights and obligations of a
Lender hereunder, and (2) the Lender assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
assignment, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an assignment at covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(i) Subject to Section 10.06(d), a Lender may at any time
grant participations to one or more banks or other entities in or to
all or any part of its rights and obligations under this Agreement or
any Borrowings hereunder, and to the extent of any such participation
(unless otherwise stated therein and except as provided below) the
purchaser of such participation shall, to the fullest extent permitted
by law, have the same rights and benefits hereunder and under such
Borrowings as it would have if it were such Lender hereunder;
provided, however, that the Borrower and the Administrative Agent
shall be entitled to continue to deal solely with the granting Lender
regarding notices, payments, payment instructions and any other
matters arising pursuant to this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide
that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder, including, without
limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation
agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement described in
clause (i), (ii) or (iii) of Section 10.05 without the consent of the
participant.
(c) The Administrative Agent and the Borrower may, for all purposes of
this Agreement, treat any Lender as the holder of any Note issued to it (and
owner of the Loans evidenced thereby) until written notice of assignment,
participation or other transfer shall have been received by them.
(d) No Assignee, participant or other transferee (including any SPV)
of any Lender's rights shall be entitled to receive any greater payment under
Section 8.03 than such Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made (i) with the Borrower's
prior written consent (which consent shall not be unreasonably withheld) or by
reason of the provisions of Section 8.02 or Section 8.03 requiring such Lender
to designate a different Lending Office under certain circumstances, or (ii) at
a time when the circumstances giving rise to such greater payment did not exist.
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement and the other Loan Documents (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
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(f) (i) Notwithstanding anything to the contrary contained herein,
any Lender (a "Designating Lender") may grant to one or more special purpose
funding vehicles (each, an "SPV"), identified as such in writing from time to
time by the Designating Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such
Designating Lender would otherwise be obligated to make to the Borrower pursuant
to this Agreement; provided that (1) nothing herein shall constitute a
commitment by any SPV to make any Loan, (2) if an SPV elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Designating Lender shall be obligated to make such Loan pursuant to the terms
hereof and (3) the Designating Lender shall remain liable for any indemnity or
other payment obligation with respect to its Commitment hereunder. The making of
a Loan by an SPV hereunder shall utilize the Commitment of the Designating
Lender to the same extent, and as if, such Loan were made by such Designating
Lender;
(ii) As to any Loans or portion thereof made by it, each SPV
shall have all the rights that a Lender making such Loans or portion
thereof would have had under this Agreement; provided, however, that
each SPV shall have granted to its Designating Lender an irrevocable
power of attorney to deliver and receive all communications and
notices under this Agreement (and any related documents) and to
exercise on such SPV's behalf, all of such SPV's voting rights under
this Agreement. No additional Note shall be required to evidence the
Loans or portion thereof made by an SPV; and the related Designating
Lender shall be deemed to hold its Note (if any) as agent for such SPV
to the extent of the Loans or portion thereof funded by such SPV. In
addition, any payments for the account of any SPV shall be paid to its
Designating Lender as agent for such SPV;
(iii) Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or payment under this Agreement for which a
Lender would otherwise be liable; if an SPV, but for the operation of
this sentence, would have liability for any such indemnity or payment,
the Designating Lender shall be liable;
(iv) In addition, notwithstanding anything to the contrary
contained in this Section 10.06(f) or otherwise in this Agreement, any
SPV may (1) at any time and without paying any processing fee
therefor, assign or participate all or a portion of its interest in
any Loans to the Designating Lender or to any financial institutions
providing liquidity and/or credit support to or for the account of
such SPV to support the funding or maintenance of Loans; provided that
the Designating Lender in the event of an assignment or participation
to any other financial institution shall remain liable for any
indemnity or other payment obligation with respect to its Commitment,
and shall be obligated to make such Loan pursuant to the terms hereof
and of its Commitment and (2) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit
or liquidity enhancements to such SPV.
Section 10.07 Collateral. Each of the Lenders represents to the
Administrative Agent and each of the other Lenders that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
Section 10.08 New York Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of New York.
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Section 10.09 Submission to Jurisdiction; Service of Process
(a) Any legal action or proceeding with respect to this Agreement or
any other Loan Document may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower and each Guarantor hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, that any of them may now
or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(b) The Borrower and each Loan Party hereby irrevocably consent to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding brought in the United States of America arising out
of or in connection with this Agreement or any other Loan Document by the
mailing (by registered or certified mail, postage prepaid) or delivering of a
copy of such process to the Borrower at its address specified in Section 10.01
and to Xxxxxxx Xxxxx, General Counsel, Xxxxxx Energy Company, 000 00xx Xxxxxx,
X.X., Xxxxxxxxxx, XX 00000. The Borrower and each Loan Party agree that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Nothing contained in this Section 10.09 shall affect the right of
the Administrative Agent or any Lender to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against the
Borrower or any other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York time) on the Domestic Business Day preceding that on
which final judgment is given, for the purchase of Dollars, for delivery two
Domestic Business Days thereafter.
Section 10.10 Waiver of Trial by Jury. THE BORROWER, THE GUARANTORS,
THE LENDERS, THE ADMINISTRATIVE AGENT AND, BY ITS ACCEPTANCE OF THE BENEFITS
HEREOF, OTHER LENDERS EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY LOAN DOCUMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. The Borrower, the Lenders, the Administrative Agent and, by
its acceptance of the benefits hereof, other Lenders each (i) acknowledges that
this waiver is a material inducement for the Borrower, the Lenders and the
Administrative Agent to enter into a business relationship, that the Borrower,
the Lenders and the Administrative Agent have already relied on this waiver in
entering into this Agreement or accepting the benefits thereof, as the case may
be, and that each will continue to rely on this waiver in their related future
dealings and (ii) further warrants and represents that each has reviewed this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
71
Section 10.11 Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
Section 10.12 Confidentiality. In accordance with normal procedures
regarding proprietary information supplied by customers, each of the Lenders
agrees to keep confidential information relating to the Borrower or any
Subsidiary received pursuant to or in connection with this Agreement and the
transactions contemplated hereby; provided that nothing herein shall be
construed to prevent the Administrative Agent or any Lender from disclosing such
information (i) upon the order of any court or administrative agency, (ii) upon
the request or demand of any regulatory agency or authority having jurisdiction
over the Administrative Agent or such Lender, (iii) which has been publicly
disclosed, (iv) which has been lawfully obtained by any of the Lenders from a
Person other than the Borrower, any Subsidiary, the Administrative Agent or any
other Lender, (v) to any participant in or assignee of, or prospective
participant in or assignee of, all or any part of the rights and obligations of
the Administrative Agent or such Lender under this Agreement or any Borrowings
hereunder (provided that such participant or assignee, or prospective
participant or assignee, agrees to comply with the confidentiality requirements
set forth in this Section 10.12), (vi) to the Administrative Agent's or such
Lender's independent auditors or outside legal counsel, or (vii) to its
Affiliates.
Section 10.13 Survival of Warranties. All agreements, representations
and warranties made in this Agreement shall survive the execution and delivery
of this Agreement and any increase in the Commitments under this Agreement.
Section 10.14 Severability. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 10.15 Captions. All Section headings are inserted for
convenience of reference only and shall not be used in any way to modify, limit,
construe or otherwise affect this Agreement.
72
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX ENERGY COMPANY, as Borrower
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
XXXXXXX CREEK COAL COMPANY
JOBONER COAL COMPANY
XXXXXXX FORK COAL COMPANY
T.C.H. COAL CO.,
as Guarantors
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: President
XXXXXX COAL SERVICES, INC.
A.T. XXXXXX COAL COMPANY, INC.
as Guarantors
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
APPALACHIAN CAPITAL MANAGEMENT CORP.
BIG XXXXX VENTURE CAPITAL CORP.
BLUE RIDGE VENTRURE CAPITAL CORP.
BLUESTONE VENTURE CAPITAL CORP.
CAPSTAN MINING COMPANY
CENTRAL PENN ENERGY COMPANY, INC.
CONTINUITY VENTURE CAPITAL CORP.
DRIH CORPORATION
FEATS VENTURE CAPITAL CORP.
XXXXX FARMS, INC.
XXXXXXXX VENTURE CAPITAL CORP.
XXXXXX CAPITAL MANAGEMENT CORP.
XXXXXX COAL CAPITAL CORP.
XXXXXX COAL SALES COMPANY, INC.
XXXXXX CONSULTING SERVICES, INC.
XXXXXX NEW ERA CAPITAL CORP.
XXXXXXX LAND COMPANY, INC.
MONONGAHELA VENTURE CAPITAL CORP.
NEW MARKET LAND COMPANY
NEW XXXXXX CAPITAL CORP.
NEW RIVER CAPITAL COMPANY
PREFERRED MANAGEMENT CAPITAL CORP.
PROGRESSIVE VENTURE CAPITAL CORP.
XXXX SALES VENTURE CAPITAL CORP.
SCARLET DEVELOPMENT COMPANY
SHENANDOANH CAPITAL MANAGEMENT CORP.
SPM CAPITAL MANAGEMENT CORP.
XXXXXXX CREEK VENTURE CAPITAL CORP.
ST. ALBANS CAPITAL MANAGEMENT CORP.
SUN COAL COMPANY, INC.,
as Guarantors
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
LAUREN LAND COMPANY
SC COAL CORPORATION
as Guarantors
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
GREYEAGLE COAL COMPANY
TENNESSEE CONSOLIDATED COAL COMPANY
TENESSEE ENERGY CORP.
THUNDER MINING COMPANY,
as Guarantors
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
ALEX ENERGY, INC.
GREEN VALLEY COAL COMPANY
MAJESTIC MINING, INC.
NICCO CORPORATION
PEERLESS EAGLE COAL CO.,
as Guarantors
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
ARACOMA COAL COMPANY, INC.
XXXXX COUNTY MINE SERVICES, INC.,
as Guarantors
By: /s/ Xxxxxx Francisco
----------------------------------
Name: Xxxxxx Francisco
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
BANDMILL COAL CORPORATION
HIGHLAND MINING COMPANY,
as Guarantors
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
BANDYTOWN COAL CORPORATION
BIG BEAR MINING COMPANY
CABINAWA MINING COMPANY
XXXXXXX POCAHONTAS COAL CORPORATION
EAGLE ENERGY, INC.
XXXXXXXX-XXXXXXXX COAL COMPANY
ROCKRIDGE COAL COMPANY
SHANNON-POCAHONT AS COAL CORPORATION
TOWN CREEK COAL COMPANY
WYOMAC COAL COMPANY, INC.,
as Guarantors
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
BARNABUS LAND COMPANY
DEHUE COAL COMPANY,
as Guarantors
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
BELFRY COAL CORPORATION
NEW RIDGE MINING COMPANY
XXXXXX COAL COMPANY, INC.,
as Guarantors
By: /s/ Xxxxxx X. Xxxxx, III
----------------------------------
Name: Xxxxxx X. Xxxxx, III
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
BLACK KING MINE DEVELOPMENT CO.
XXXXX EAST DEVELOPMENT CO.
XXXXX WEST DEVLOPMENT CO.
CENTRAL WEST VIRGINIA ENERGY COMPANY
CERES LAND COMPANY
DEMETER LAND COMPANY
LAXARE, INC.
RAVEN RESOURCES, INC.,
as Guarantor
By: /s/ R. Xxxxx Xxxx
----------------------------------
Name: R. Xxxxx Xxxx
Title: President
NEW RIVER ENERGY CORPORATION
as Guarantors
By: /s/ R. Xxxxx Xxxx
----------------------------------
Name: R. Xxxxx Xxxx
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
BEN CREEK COAL COMPANY,
as Guarantor
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXXX ENERGY COMPANY
MARFORK COAL COMPANY, INC.,
as Guarantors
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
CLEAR FORK COAL COMPANY
ELK RUN COAL COMPANY, INC.,
as Guarantors
By: /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
CRYSTAL FUELS COMPANY,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
DELBARTON MINING COMPANY
SUPPORT MINING COMPANY,
as Guarantors
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXX FORK COAL COMPANY
DUCHESS COAL COMPANY
HAZY RIDGE COAL COMPANY
JACKS BRANCH COAL COMPANY
LICK BRANCH COAL COMPANY
MINE MAINTENANCE, INC.
XXXXX XXXX MINING COMPANY
RUM CREEK SYNFUEL COMPANY
TRACE CREEK COAL COMPANY,
as Guarantors
By: /s/ Xxxxx X. Xxx
----------------------------------
Name: Xxxxx X. Xxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
FOOTHILLS COAL COMPANY,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx Xxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
KANAWHA ENERGY COMPANY,
as Guarantor
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXXX COAL COMPANY,
as Guarantor
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
GOALS COAL COMPANY
XXXXXXXX MOUNTAIN COAL COMPANY
as Guarantors
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
INDEPENDENCE COAL COMPANY, INC.,
as Guarantors
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXX CREEK COAL CORPORATION,
as Guarantor
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
LONG FORK COAL COMPANY,
as Guarantor
By: /s/ Xxxxx XxXxxxxx
----------------------------------
Name: Xxxxx XxXxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXX XXXXXX COAL COMPANY, INC.
ROAD FORK DEVELOPMENT COMPANY, INC.
SPARTAN MINING COMPANY
STONE MINING COMPANY
SYCAMORE FUELS, INC.
VANTAGE MINING COMPANY,
as Guarantors
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXX COUNTY COAL CORPORATION
PILGRIM MINING COMPANY, INC.,
as Guarantors
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXXXX ENERGY COMPANY,
as Guarantor
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
OMAR MINING COMPANY,
as Guarantor
By: /s/ Xxxxxxxx XxXxxxxx Kalos
--------------------------------
Name: Xxxxxxxx XxXxxxxx Kalos
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
POWER MOUNTAIN COAL COMPANY,
as Guarantor
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXX SALES & PROCESSING CO.,
as Guarantor
By: /s/ Macs Hall
--------------------------------
Name: Macs Hall
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
RUM CREEK COAL SALES, INC.,
as Guarantor
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
PERFORMANCE COAL COMPANY,
as Guarantor
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
WHITE BUCK COAL COMPANY,
as Guarantor
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
M & B COAL COMPANY,
as Guarantor
BY: WYOMAC COAL COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
M & B COAL COMPANY,
as Guarantor
BY: TOWN CREEK COAL COMPANY
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXXX-PORAHONTAS MINING CO.,
as Guarantor
BY: XXXXXXX-POCAHONTAS COAL
CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
XXXXXXX-POCAHONTAS MINING CO.,
as Guarantor
BY: OMAR MINING COMPANY
By: /s/ Xxxxxxxx XxXxxxxx Kalos
--------------------------
Name: Xxxxxxxx XxXxxxxx Kalos
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
CITICORP USA, INC., as Administrative Agent
and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: XXXXXXX X. XXXXXXX
Title: MANAGING DIRECTOR
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Signature Page to Amended and Restated Xxxxxx Credit Agreement
PNC BANK, NATIONAL ASSOCIATION, as
Syndication Agent and as a Lender
By: /s/ X. Xxxx Xxxxxxx
--------------------------------
Name: X. Xxxx Xxxxxxx
Title: Assistant Vice President
By:
--------------------------------
Name:
Title:
Signature Page to Amended and Restated Xxxxxx Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Documentation Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
By:
--------------------------------
Name:
Title:
Signature Page to Amended and Restated Xxxxxx Credit Agreement
WESTLB AG, as a Lender
By: /s/ X. Xxxxxx
--------------------------------
Name: XXXXXXXX XXXXXX
Title: DIRECTOR
/s/ Bran A. Kaskovic
BRAN A. KASKOVIC
FINANCIAL SOLUTIONS GROUP
GLOBAL SPECIALIZED FINANCE
WESTLB AG
Signature Page to Amended and Restated Xxxxxx Credit Agreement
BANK ONE, NA, as a Lender
By:
--------------------------------
Name:
Title:
Signature Page to Amended and Restated Xxxxxx Credit Agreement
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: /s/ X Xxxxxxxx
-----------------------------
Name: D? Xxxxxxxx
Title: The Royal Bank of Scotland
Signature Page to Amended and Restated Xxxxxx Credit Agreement
BRANCH BANKING AND TRUST COMPANY, as a
Lender
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Signature Page to Amended and Restated Xxxxxx Credit Agreement
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Amended and Restated Xxxxxx Credit Agreement
DRESDNER BANK LATEINAMERIKA AG, Miami
Agency as a Lender
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
Signature Page to Amended and Restated Xxxxxx Credit Agreement
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED, as a Lender
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Director - Global Structured
Finance
Signature Page to Amended and Restated Xxxxxx Credit Agreement
MELLON BANK N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Amended and Restated Xxxxxx Credit Agreement
BANK HAPOALIM, as a Lender
By:
--------------------------------
Name:
Title:
Signature Page to Amended and Restated Xxxxxx Credit Agreement
SCHEDULE I
APPLICABLE LENDING OFFICES
-----------------------------------------------------------------------------------------------------------------------------------
Bank Domestic Lending Office Euro-Dollar Lending Office
-----------------------------------------------------------------------------------------------------------------------------------
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc.
Two Penns Way, Xxxxx 000 Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxx Card Attn: Xxx Card
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------------------
PNC Bank, National Association PNC Bank, N.A. PNC Bank, N.A.
One PNC Plaza, 0xx Xxxxx Xxx XXX Xxxxx, 0xx Xxxxx
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000 Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxxx Attn: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------------------
WestLB AG WestLB AG, New York Branch WestLB AG, New York Branch
1211 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Transaction Management Attn: Transaction Management
Department Department
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Bank One, NA Bank One, N.A. Bank One, N.A.
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000 2 Bank Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx De Los Xxxxx Attn: Xxxxxx De Los Xxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------------------
The Royal Bank of Scotland plc
-----------------------------------------------------------------------------------------------------------------------------------
Branch Banking and Trust Company Branch Banking & Trust Co. Branch Banking & Trust Co.
000 Xxxx Xxxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000 Xxxxxxx-Xxxxx, XX 00000
Attn: Bank Loan Syndications Attn: Bank Loan Syndications
Telephone: Telephone:
Fax: Fax:
-----------------------------------------------------------------------------------------------------------------------------------
The Bank of New York The Bank of New York The Bank of New York
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx Attn: Xxxx Xxxxxxxx
Telephone: Telephone:
Fax: Fax:
-----------------------------------------------------------------------------------------------------------------------------------
Dresdner Bank Lateinamerika XX Xxxxxxxx Bank Lateinamerika AG, Miami Dresdner Bank Lateinamerika AG, Miami Agency
Agency 000 Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx Xxxxx XX 00000
Xxxxx XX 00000 Attn.: Xxxxx Xxxxxxxxx
Attn.: Xxxxx Xxxxxxxxx Tele.: 000-000-0000
Tele.: 000-000-0000 Fax: 000-000-0000
Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Wachovia Bank, N.A. Wachovia Bank, N.A. Wachovia Bank, N.A.
0000 Xxxx Xxxx Xxxxxx 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Way Attn: Xxxxxx X. Way
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking Group Australia and New Zealand Australia and New Zealand
Limited Banking Group Limited Banking Group Limited
1177 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxx/Xxxxx Xxxxxxxxx Attn: Xxxxxx Xxxxxxxxxxx and
Telephone: 000-000-0000 Xxxxxx Xxxxxx
Fax: 000-000-0000/4814 Telephone: 000-000-0000
Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Mellon Bank, X.X. Xxxxxx Bank, X.X Xxxxxx Bank, N.A
Loan Administration Loan Administration
Three Mellon Bank Center Three Mellon Bank Center
Room 1203 Room 1203
Pittsburgh, PA 15259-0003 Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx Attention: Xxxxxxx X. Xxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
email: xxxx.xx@xxxxxx.xxx email: xxxx.xx@xxxxxx.xxx
Wiring: Wiring:
Mellon Bank, X.X. Xxxxxx Bank, N.A.
ABA: 000000000 ABA: 000000000
Credit: CLAS Credit: CLAS
Acct: 990873800 Acct: 990873800
Ref: Xxxxxx Energy Ref: Xxxxxx Energy
-----------------------------------------------------------------------------------------------------------------------------------
Bank Hapoalim
-----------------------------------------------------------------------------------------------------------------------------------
Schedule II
COMMITMENTS
------------------------------------------------------------------
LENDER COMMITMENT
------------------------------------------------------------------
Wachovia Bank, National Association $46,875,000
------------------------------------------------------------------
Citicorp USA, Inc. $29,687,500
------------------------------------------------------------------
PNC Bank, National Association $31,250,000
------------------------------------------------------------------
WestLB AG $23,437,500
------------------------------------------------------------------
Bank One, N.A. $23,437,500
------------------------------------------------------------------
The Royal Bank of Scotland plc $23,437,500
------------------------------------------------------------------
Branch Banking and Trust Company $12,500,000
------------------------------------------------------------------
The Bank of New York $12,500,000
------------------------------------------------------------------
Dresdner Bank Lateinamerika AG $12,500,000
------------------------------------------------------------------
Australia and New Zealand Banking Group Limited $12,500,000
------------------------------------------------------------------
Mellon Bank, N.A. $12,500,000
------------------------------------------------------------------
Bank Hapoalim $ 9,375,000
------------------------------------------------------------------
EXHIBIT A
FORM OF COLLATERAL SHARING AGREEMENT
A-1
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of _______________, ____
Reference is made to that certain Amended and Restated Credit Agreement,
dated as of November 26, 2002 as amended, modified or supplemented to the date
hereof (the "Credit Agreement"), among Xxxxxx Energy Company (the "Borrower"),
the Guarantor, the Lenders party thereto, and Citicorp USA, Inc., as
Administrative Agent (the "Administrative Agent") and the other parties thereto.
Terms defined in the Credit Agreement are used herein with same meaning.
________________ (the "Assignor") and ______________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, without recourse, that
interest in and to all of the Assignor's rights and obligations under the Credit
Agreement as of the date hereof which represents the percentage interest
specified in Section 1 of Schedule 1 of the outstanding rights and obligations
of all Lenders under the Credit Agreement, including, without limitation, such
interest in the Assignor's Commitment and in all outstanding Loans owing to the
Assignor. After giving effect to such sale and assignment, the Assignee's
Commitment and the aggregate principal amount of Loans outstanding on the date
hereof and owing to the Assignee will be as set forth in Section 2 of Schedule
1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty (except as provided in clause (i) above) and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or any other instrument or document
furnished pursuant thereto or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any guarantor or any other person or the
performance or observance by the Borrower, any guarantor or any other party of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms and agrees that it has received a copy of
the Credit Agreement, any amendments or waivers thereto and any other documents
furnished pursuant thereto, which in each case have been requested by it,
together with copies of any financial statements requested by it, and that it
has, independently and without reliance on the Assignor, the Administrative
Agent or any other Agent or Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Assignment and Acceptance and agrees that it shall have no recourse
against the Assignor with respect to any matters relating thereto; (ii) agrees
that it will, independently and without reliance upon the Assignor, any
Administrative Agent or any other Agent or Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement
and any other documents or instruments furnished pursuant thereto; (iii)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent, by the terms thereof, together with such
powers as are reasonably incidental thereto; (iv) confirms that it is an
Eligible Assignee; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
B-1
required to be performed by it as a Lender; and (vi) specifies as its Domestic
Lending Office and Euro-Dollar Lending Office and address for notices the
respective offices previously notified to the Administrative Agent pursuant to
the Credit Agreement; and (vii) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
the purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement or
such other documents as are reasonably necessary to indicate that all such
payments are subject to withholding taxes at a rate reduced by any applicable
tax treaty.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, the Assignor will deliver this Assignment and
Acceptance to the Administrative Agent for acceptance and recording. The
effective date for this Assignment and Acceptance shall be the date of
acceptance hereof by the Administrative Agent unless otherwise specified on
Schedule 1 hereto (the "Assignment Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as of
the Assignment Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in the Credit Agreement and in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in the Credit
Agreement and in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other
instruments and documents furnished pursuant thereto. The Assignee hereby
acknowledges that the other parties to the Credit Agreement are intended
third-party beneficiaries of this Assignment and Acceptance insofar as, after
giving effect to this Assignment and Acceptance, the Assignee shall have the
obligations of a Lender thereunder.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Assignment Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Assignment Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
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B-2
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Dated as of ____________, 20___
Section 1
Percentage interest ______%
(as percentage of total
Credit Agreement Loans/
Commitments of all Lenders)
Section 2
Assignee's Commitment $_______________
Aggregate Outstanding Principal
Amount of Loans Owing to Assignee $_______________
Section 3
Assignment Effective Date: __________, 20___
--------------------,
as Assignor
By
----------------------
Title:
----------------
--------------------,
as Assignee
By
----------------------
Title:
----------------
[Remainder of this page intentionally left blank]
B-3
Accepted this _______ day of
_____________, ____
Citicorp USA, Inc., as Administrative Agent
By
-----------------------------
Name:
Title:
Consented to this _______ day of
_____________, ____
Xxxxxx Energy Company, as Borrower
By
-----------------------------
Name:
Title:
B-4
EXHIBIT C
FORM OF PLEDGE AND SECURITY AGREEMENT
C-1
EXHIBIT D
FORM OF NOTICE OF BORROWING
Citicorp USA, Inc., as Administrative Agent
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention:
Ladies and Gentlemen:
The undersigned, Xxxxxx Energy Company, refers to the Amended and Restated
Credit Agreement, dated as of November 26, 2002 (the "Credit Agreement", the
terms defined therein being used herein as therein defined), among the
undersigned, the Guarantor, certain Lenders parties thereto, Citicorp USA, Inc.,
as Administrative Agent for said Lenders, and PNC Bank, National Association, as
Syndication Agent and Wachovia Bank, National Association, as Documentation
Agent, and hereby gives you notice pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 2.02 and
Article III of the Credit Agreement:
(i) The [Domestic] [Euro-Dollar] Business Day of the Proposed
Borrowing is _________________________, 20___.
(ii) The type of Loans comprising the Proposed Borrowing are [Base
Rate Loans] [Euro-Dollar Loans].
(iii) The aggregate amount of the Proposed Borrowing is $___________.
(iv) The Interest Period for each Euro-Dollar Borrowing made as part
of the Proposed Borrowing is ____ month[s].
(v) The undersigned's long-term senior unsecured debt (or, if the
Borrower's senior secured debt is rated by S&P or Xxxxx'x, the senior
secured debt) ratings in effect on the date hereof are: S&P: ______
Xxxxx'x: _____.
Further, the undersigned hereby certifies that the following is, to the
best of the undersigned's knowledge, true, correct and complete:
A. Immediately after the Proposed Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
B. Immediately after the Proposed Borrowing, no event shall have
occurred and be continuing, or would result from such Proposed Borrowing or
from the application of the proceeds therefrom, which constitutes an Event
of Default;
C. except to the extent provided below, the representations and
warranties of the Borrower contained in Article IV of the Credit Agreement
(other than in Section 4.05(c) of the Credit Agreement) are true and
correct in all material respects on and as of the date hereof, before and
after giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as the date hereof, except to the
extent that any such
D-1
representation or warranty expressly relates only to an earlier date, in
which case they were correct as of such earlier date; provided that the
representation contained in Section 4.05(c) of the Credit Agreement need
only be true and correct on the Effective Date; and
D. After applying the proceeds of such Borrowing, not more than 25%
of the value (as determined by any reasonable method permitted by
Regulation U) of the Borrower's assets subject to the provisions of Section
5.04(b) and Section 5.04(g) of the Credit Agreement shall be represented by
"margin stock" (as defined in Regulation U).
Very truly yours,
XXXXXX ENERGY COMPANY
By:
--------------------------------
Name:
Title:
D-2
EXHIBIT E
FORM OF PROMISSORY NOTE
(3 Year Credit)
U.S.$_______________ New York, New York
____________, 2002
For value received, XXXXXX ENERGY COMPANY, a Delaware corporation (the
"Borrower"), promises to pay to (the "Lender") or its registered assigns, for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below on the last day of the Interest Period relating to such Loan.
The Borrower promises to pay interest on the unpaid principal amount of each
such Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Citicorp USA, Inc., Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx, 00000.
All Loans made by the Lender, the respective maturities thereof and all
repayments of the principal thereof shall be recorded by the Lender and, prior
to any transfer hereof, endorsed by the Lender on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
The note is one of the Notes referred to in the Amended and Restated Credit
Agreement dated as of November 26, 2002 among the Borrower, the Guarantor, the
Lenders listed on the signature pages thereof, Citicorp USA, Inc., as
Administrative Agent, PNC Bank, National Association, as Syndication Agent, and
Wachovia Bank, National Association, as Documentation Agent, (as the same may be
amended from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
XXXXXX ENERGY COMPANY
By:
--------------------------------
Name:
Title:
E-1
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------------------------------------
Amount
of Amount of Principal Notation
Date Loan Repaid Maturity Date Made By
--------------------------------------------------------------------------------------------------------------
E-2
EXHIBIT F
FORM OF NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Amended and Restated Credit Agreement dated as of
November 26, 2002, as amended, supplemented or otherwise modified to the date
hereof (said Amended and Restated Credit Agreement, as so amended, supplemented
or otherwise modified, being the "Credit Agreement", the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and
among Xxxxxx Energy Company, a Delaware corporation, as Borrower, the Guarantor,
the financial institutions listed therein as Lenders, Citicorp USA, Inc., as
Administrative Agent and the other agents and parties thereto, this represents
the Borrower's request to convert or continue Loans as follows:
1. Date of conversion/continuation: __________________, _______
2. Amount of Loans being converted/continued: $___________________
3. Nature of conversion/continuation:
[ ] a. Conversion of Base Rate Loans to Euro-Dollar Loans
[ ] b. Conversion of Euro-Dollar Rate Loans to Base Rate Loans
[ ] c. Continuation of Euro-Dollar Rate Loans as such
4. If Loans are being continued as or converted to Euro-Dollar Rate
Loans, the duration of the new Interest Period that commences on the
Conversion/ continuation date: _______________ month(s)
In the case of a Conversion to or Continuation of Euro-Dollar Rate Loans,
the undersigned officer, to the best of his or her knowledge, and the Borrower
certify that no Event of Default has occurred and is continuing under the Credit
Agreement.
DATED: XXXXXX ENERGY COMPANY
----------------
By:
------------------------------
Title:
---------------------------
F-1
