Exhibit 10.21
EXECUTION COPY
U.S. $600,000,000
SENIOR REVOLVING LOAN AGREEMENT,
dated as of January 22, 2001
among
CONSOL ENERGY INC.
as the Borrower
THE INITIAL BANKS PARTIES HERETO
and
CITIBANK, N.A.
as Administrative Agent
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
SECTION 1.1 Defined Terms 1
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SECTION 1.2 Use of Defined Terms 10
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SECTION 1.3 Accounting and Financial Determinations 10
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ARTICLE II COMMITMENT 10
SECTION 2.1 Commitment 10
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SECTION 2.2 Total Commitment Amount 11
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SECTION 2.3 Fees 11
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SECTION 2.4 Commitment Termination Date 11
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SECTION 2.5. Increase in the Aggregate Commitments 11
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ARTICLE III LOANS AND NOTES 13
SECTION 3.1 Borrowing Procedure 13
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SECTION 3.2 Note 13
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SECTION 3.3 Principal Payments and Prepayments 14
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SECTION 3.4 Interest 14
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SECTION 3.5 Post-Maturity Rates 14
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SECTION 3.6 Payment Dates 14
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SECTION 3.7 Payments, Computations 15
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SECTION 3.8 Setoff 15
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SECTION 3.9 Taxes 16
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ARTICLE IV BASE RATE AND LIBO RATE OPTIONS FOR THE LOANS 17
SECTION 4.1 Elections 17
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SECTION 4.2 LIBO Rate Lending Unlawful 18
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SECTION 4.3 Deposits Unavailable 19
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SECTION 4.4 Capital Adequacy; Increased Costs 19
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SECTION 4.5 Funding Losses 19
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SECTION 4.6 Interest Rate Determination 20
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SECTION 4.7. Sharing of Payments, Etc 20
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ARTICLE V CONDITIONS PRECEDENT 21
SECTION 5.1 Effective Date 21
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SECTION 5.1.1 Resolutions 21
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SECTION 5.1.2 Delivery of Note 21
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SECTION 5.1.3 Opinions of Counsel 21
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SECTION 5.1.4 Significant Subsidiary Guaranty 21
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SECTION 5.1.5 Subordination Agreement 22
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SECTION 5.1.6 Satisfactory Legal Form 22
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SECTION 5.1.7 Termination of Bilateral Loan Agreements 22
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SECTION 5.2 All Loans and Each Increase Date 22
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SECTION 5.2.1 Compliance with Warranties, non-Default 22
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SECTION 5.2.2 Loan Request 22
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ARTICLE VI WARRANTIES 22
SECTION 6.1 Organization, Power, Authority 22
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SECTION 6.2 Due Authorization 23
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SECTION 6.3 Validity 23
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SECTION 6.4 Financial Information 23
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SECTION 6.5 Absence of Certain Default 23
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SECTION 6.6 Litigation 23
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SECTION 6.7 Regulation U 23
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i
SECTION 6.8 Government Regulation 24
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SECTION 6.9 Certain Contractual Obligations or Organic Documents 24
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SECTION 6.10 Taxes 24
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SECTION 6.11 Pension and Welfare Plans; Multiemployer Plans 24
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SECTION 6.12 Subsidiaries and Significant Subsidiaries 24
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SECTION 6.13 Patents, Trademarks 24
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SECTION 6.14 Ownership of Properties; Liens 24
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SECTION 6.15 Accuracy of Information 24
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SECTION 6.16 Environmental Warranties 25
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SECTION 6.17 Borrower's Solvency 26
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SECTION 6.18 Pari Passu 26
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ARTICLE VII COVENANTS 26
SECTION 7.1 Certain Affirmative Covenants 26
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SECTION 7.1.1 Financial Information 26
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SECTION 7.1.2 Maintenance of Corporate Existences 27
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SECTION 7.1.3 Foreign Qualification 27
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SECTION 7.1.4 Payment of Taxes 27
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SECTION 7.1.5 Insurance 27
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SECTION 7.1.6 Notice of Default, Litigation 28
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SECTION 7.1.7 Performance of Loan Documents 28
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SECTION 7.1.8 Books and Records 28
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SECTION 7.1.9 Significant Subsidiary Guaranty 28
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SECTION 7.1.10 Environmental Covenant 29
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SECTION 7.2 Certain Negative Covenants 29
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SECTION 7.2.1 Indebtedness for Borrowed Money 29
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SECTION 7.2.2 Liens 29
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SECTION 7.2.3 Consolidation, Merger 30
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SECTION 7.2.4 Transactions with Affiliates 30
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SECTION 7.2.5 Sale or Discount of Receivables 30
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SECTION 7.2.6 Dividends 30
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SECTION 7.2.7 Inconsistent Agreements 30
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SECTION 7.2.8 Loans, Advances and Investments 30
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SECTION 7.2.9 Guaranties 31
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SECTION 7.2.10 Securities 31
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SECTION 7.2.11 Business Activities 32
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SECTION 7.2.12 Funded Debt Ratio 32
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ARTICLE VIII EVENTS OF DEFAULT 32
SECTION 8.1 Events of Default 32
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SECTION 8.1.1 Non-Payment of Liabilities 32
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SECTION 8.1.2 Non-Performance of Certain Covenants 32
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SECTION 8.1.3 Certain Defaults on Other Indebtedness for Borrowed Money 32
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SECTION 8.1.4 Bankruptcy, Insolvency 32
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SECTION 8.1.5 Control of the Borrower 33
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SECTION 8.1.6 Non-Performance of Other Obligations 33
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SECTION 8.1.7 Breach of Representation or Warranty 33
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SECTION 8.1.8 Pension Plans 33
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SECTION 8.1.9 Judgments 33
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SECTION 8.1.10 Significant Subsidiary Guaranty and Subordination Agreement 33
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SECTION 8.1.11 Multiemployer Plans 33
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SECTION 8.2 Action if Bankruptcy 33
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ii
SECTION 8.3 Action if Other Event of Default 34
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ARTICLE IX THE AGENT 34
SECTION 9.1. Authorization and Action 34
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SECTION 9.2. Agent's Reliance, Etc 34
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SECTION 9.3. Citibank and Affiliates 34
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SECTION 9.4. Bank Credit Decision 35
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SECTION 9.5. Indemnification 35
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SECTION 9.6. Successor Agent 35
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SECTION 9.7. Other Agents 35
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ARTICLE X MISCELLANEOUS 35
SECTION 10.1 Waivers, Amendments 36
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SECTION 10.2 Notices 36
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SECTION 10.3 Costs and Expenses 36
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SECTION 10.4 Indemnification 36
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SECTION 10.5 Survival 37
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SECTION 10.6 Severability 37
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SECTION 10.7 Headings 37
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SECTION 10.8 Counterparts, Effectiveness 37
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SECTION 10.9 Governing Law; Entire Agreement 37
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SECTION 10.10 Successors and Assigns 37
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SECTION 10.11 Sale and Transfers of Loans and Notes; Participations in Loans and Notes 37
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SECTION 10.12 Other Transactions 40
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SECTION 10.13 Waiver of Jury Trial 40
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SECTION 10.14 Consent to Jurisdiction and Service of Process 40
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iii
EXHIBITS
EXHIBIT A - Form of Note
EXHIBIT B - Loan Request
EXHIBIT C - Continuation/Conversion Notice
EXHIBIT D - Confidentiality Agreement
EXHIBIT E - Disclosure Schedule
EXHIBIT F - Opinion of Borrower's General Counsel
EXHIBIT G - Significant Subsidiary Guaranty
EXHIBIT H - Assignment and Acceptance
EXHIBIT I - Commitment Termination Date Extension Request
EXHIBIT J - Subordination Agreement
EXHIBIT K - Permitted Investments
SCHEDULES
SCHEDULE I - List of Applicable Lending Offices
iv
SENIOR REVOLVING LOAN AGREEMENT
CONSOL ENERGY INC., a Delaware corporation (the "Borrower"), the banks,
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financial institutions and other institutional lenders (the "Initial Banks")
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listed on the signature pages hereof, and CITIBANK, N.A. ("Citibank"), as agent
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(the "Agent") for the Banks (as hereinafter defined) hereby agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. The following terms (whether or not underscored)
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when used in this Agreement, including its preamble and recitals, shall, except
where the context otherwise requires, have the following meanings (such
definitions to be equally applicable to the singular and plural forms thereof):
"Affiliate" of any Person means any other Person which, directly or
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indirectly, controls or is controlled by or under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Pension Plan). A Person shall be deemed to be "controlled by"
any other Person if such other Person possesses, directly or indirectly, power:
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners of such Person; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"Agent" is defined in the preamble.
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"Agent's Account" means the account of the Agent maintained by the Agent at
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Citibank at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
00000000, Attention: .
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"Agreement" means, at any date, this loan agreement as originally in
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effect on the Effective Date, and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect on such
date.
"Applicable Lending Office" means, with respect to each Bank, such Bank's
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Domestic Lending Office in the case of a Base Rate Loan and such Bank's LIBO
Lending Office in the case of a LIBO Rate Loan.
"Applicable Margin" means, for any Interest Period, the amount indicated
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below for each type of Loan based upon the Credit Rating for each day during
such Interest Period:
LIBO Base
Rate Rate
Credit Rating Loans Loans
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Level I 0.350% 0%
Level II 0.500% 0%
Level III 1.250% 1.00%
"Approval" means each and every approval, consent, filing and registration
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by or with any Federal, state or other regulatory authority or any third party
necessary to authorize or permit the execution, delivery or performance of this
Agreement, the Notes or any other Loan Document or for the validity or
enforceability hereof or thereof.
"Assignment and Acceptance" means any assignment and acceptance,
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substantially in the form of Exhibit H hereto.
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"Assuming Bank" has the meaning specified in Section 2.5(d).
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"Assumption Agreement" has the meaning specified in Section 2.5(d)(ii).
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"Authorized Officer" means, relative to any Loan Party, those of its
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officers whose signatures and incumbency shall have been certified to the Agent.
"Bank" means each Initial Bank, each Assuming Bank that shall become a
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party hereto pursuant to Section 2.5 and each Person that shall become a party
hereto pursuant to Section 10.11.
"Base Rate" means at any time and with respect to all Base Rate Loans, a
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fluctuating rate of interest per annum equal to the higher of:
(a) a rate of interest equal to the base rate of interest announced by
Citibank in New York, New York from time to time, changing when and as said
base rate changes; and
(b) the Federal Funds Rate plus 1/2%.
The Base Rate is not necessarily intended to be the lowest rate of interest
charged by Citibank in connection with extensions of credit. Changes in the rate
of interest on Loans maintained as Base Rate Loans shall take effect
simultaneously with each change in the Base Rate.
"Base Rate Loan" is defined in Section 4.1.
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"Borrower" is defined in the preamble.
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"Borrowing" means a borrowing consisting of simultaneous Loans of the same
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Type made by the Banks on any Business Day in accordance with Section 3.1.
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"Business Day" means:
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(a) any day which is neither a Saturday or Sunday nor a legal holiday
in the State of New York on which banks are authorized or required to be
closed; and
(b) relative to the date of
(i) making or continuing any portion of any Loans as, or
converting any portion of any Loans from or into LIBO Rate Loans,
(ii) making any payment or prepayment of principal of or payment
of interest on the portion of the principal amount of the Loans being
maintained as LIBO Rate Loans, and
(iii) the Borrower's giving any notice (or the number of Business
Days to elapse prior to the effectiveness thereof) in connection with
any matter referred to in clause (b)(i) or (b)(ii),
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a banking business day of the Agent at, and on which dealings in Dollars
are carried on in the interbank eurodollar market of, the Agent's LIBOR
Office.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
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Liability Act of 1980, as amended.
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"CERCLIS" means the Comprehensive Environmental Response Compensation
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Liability Information System List.
"Change in Control" means with respect to the Borrower, the failure of
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Rheinbraun AG and RG to own, directly or indirectly, a cumulative total of at
least fifty-one percent (51%) of the outstanding shares of capital stock of the
Borrower, on a fully diluted basis, in each case, free and clear of all Liens
and other encumbrances.
"Code" means the Internal Revenue Code of 1986, and the regulations
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thereunder, as amended from time to time.
"Commercial Paper Indebtedness" means commercial paper issued by the
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Borrower with an original maturity of not more than 270 days from the date of
issuance, incurrence or other creation thereof and, at the time any
determination thereof is to be made, means the then aggregate outstanding face
amount (if issued, incurred or created on a discount basis) or principal amount
together with interest thereon to stated maturity (if issued, incurred or
created on an interest-bearing basis) of such commercial paper.
"Commitment" means as to any Bank (a) the amount set forth opposite such
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Bank's name on the signature pages hereof, (b) if such Bank has become a Bank
hereunder pursuant to an Assumption Agreement, the amount set forth in such
Assumption Agreement or (b) if such Bank has entered into any Assignment and
Acceptance, the amount set forth for such Bank in the Register maintained by the
Agent pursuant to Section 10.11(d), as such amount may be reduced pursuant to
Section 2.2 or increased pursuant to Section 2.5.
"Commitment Date" has the meaning specified in Section 2.5(b).
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"Commitment Increase" has the meaning specified in Section 2.5(a).
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"Commitment Termination Date" means the earliest of
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(a) October 11, 2001 as such date may be extended pursuant to Section
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2.4;
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(b) five Business Days after notice is given by the Borrower to the
Agent for purposes of designating a Commitment Termination Date pursuant to
this clause, provided that, on such designated Commitment Termination Date,
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no Loans are outstanding;
(c) immediately and without further action upon the occurrence of any
Default described in Section 8.1.4 with respect to the Borrower; and
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(d) immediately when any other Event of Default shall have occurred
and be continuing and the Loans shall be declared to be due and payable
pursuant to Section 8.3.
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"Commitment Termination Date Extension Request" means a request
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substantially in the form of Exhibit I attached hereto duly executed by an
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Authorized Officer of the Borrower.
"Confidentiality Agreement" means a confidentiality agreement duly
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executed by an Authorized Officer of the Borrower and each Bank substantially in
the form of Exhibit D attached hereto (as such may be amended, supplemented,
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restated or otherwise modified and in effect from time to time with the consent
of the Borrower and such Bank).
"Consolidated Subsidiary" of any Person means, at any time, every
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Subsidiary which would be included as a consolidated subsidiary of such Person
in its consolidated financial statements as of such time; unless otherwise
specified, "Consolidated Subsidiary" means a Consolidated Subsidiary of the
Borrower.
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"Continuation/Conversion Notice" means a notice of continuation or
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conversion and certificate duly executed by the chief executive or financial
Authorized Officer of the Borrower substantially in the form of Exhibit C
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attached hereto.
"Contractual Obligation" means, relative to any Person, any provision of
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any security issued by such Person or of any Instrument or undertaking to which
such Person is a party or by which it or any of its property is bound.
"Controlled Group" means all members of a controlled group of corporations
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and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, as applicable, are treated as a single employer under Section 414 of
the Code or Section 4001 of ERISA.
"Credit Rating" means the credit rating of the Borrower's or Consolidation
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Coal Company's long-term unsecured debt securities without credit enhancement by
any two of S&P, Xxxxx'x or D&P, one of which must be S&P or Xxxxx'x. "Level I"
Credit Rating means a Credit Rating of any two credit rating agencies, one of
which must be by S&P or Xxxxx'x, of at least A- in the case of S&P, at least A3
in the case of Xxxxx'x and at least A- in the case of D&P. "Level II" Credit
Rating means a Credit Rating of any two credit rating agencies, one of which
must be by S&P or Xxxxx'x, of less than A- but at least BBB- in the case of S&P,
less than A3 but at least Baa3 in the case of Xxxxx'x or less than A- but at
least BBB- in the case of D&P. "Level III" Credit Rating means a Credit Rating
of any two credit rating agencies, one of which must be by S&P or Xxxxx'x, of
less than BBB- in the case of S&P, less than Baa3 in the case of Xxxxx'x and
less than BBB- in the case of D&P, or there being neither a Credit Rating from
S&P nor Xxxxx'x, at the same time.
"Default" means any Event of Default or any condition or event which, after
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notice or lapse of time or both, would constitute an Event of Default.
"Dollar" and the sign "$" mean lawful money of the United States of
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America.
"Domestic Lending Office" means, relative to any Bank, the office of such
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Bank specified as its "Domestic Lending Office" opposite its name on Schedule I
hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Bank, or such other office of such Bank within the United
States of America as such Bank may from time to time specify to the Borrower and
the Agent.
"D&P" means Duff & Xxxxxx Credit Rating Co.
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"Effective Date" means January 22, 2001.
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"Eligible Assignee" means (i) a Bank; (ii) an Affiliate of a Bank and (iii)
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any other Person approved by the Agent and, unless an Event of Default has
occurred and is continuing at the time any assignment is effected in accordance
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with Section 10.11, the Borrower, such approval not to be unreasonably withheld
or delayed; provided, however, that neither the Borrower nor an Affiliate of the
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Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means all applicable federal, state or local statutes,
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laws, ordinances, codes, rules, regulations and guidelines (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment, including CERCLA and SMCRA.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended.
"Event of Default" is defined in Section 8.1.
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"Exemption Agreement" is defined in Section 3.9(c).
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"Exemption Representation is defined in Section 3.9(d).
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"Federal Funds Rate" means, for any day, a fluctuating interest rate per
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annum equal to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Agent from three federal funds brokers of recognized
standing selected by it.
"Fiscal Quarter" means any quarter of a Fiscal Year.
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"Fiscal Year" means any period of twelve consecutive calendar months ending
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on June 30.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
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(or any successor).
"GAAP" means generally accepted United States accounting principles.
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"Guaranty" means any agreement, undertaking or arrangement by which any
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Person guarantees, endorses or otherwise becomes or is contingently liable upon
(by direct or indirect agreement, contingent or otherwise, to provide funds for
payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise
to assure a creditor against loss) the debt, obligation or other liability of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of the obligor's obligation under any
guaranty shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount (or maximum outstanding principal amount, if
larger) of the debt, obligation or other liability thereby guaranteed.
"Hazardous Material" means
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(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by RCRA;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
Environmental Law.
"hereof", "hereto", "hereunder" and similar terms refer to this Agreement
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and not to any particular Section or provision of this Agreement.
"Impermissible Qualification" means, relative to the opinion by independent
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public accountants as to any financial statement of the Borrower, any
qualification or exception to such opinion:
(a) which is of a "going concern" or similar nature; or
(b) which relates to the limited scope of examination of matters
relevant to such financial information.
"including" means including without limiting the generality of any
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description preceding such term.
"Increase Date" has the meaning specified in Section 2.5(a).
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"Increasing Bank" has the meaning specified in Section 2.5(b).
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"Indebtedness" of any Person means, without duplication:
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(a) Indebtedness for Borrowed Money;
(b) all items other than as described in clause (a) which, in
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accordance with GAAP, would be included as liabilities on the liability
side of a balance sheet of such Person as of the date at which Indebtedness
is to be determined; and
(c) whether or not so included as liabilities in accordance with GAAP,
(i) all indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements) whether or not such indebtedness shall have been
assumed by such Person, and
(ii) all Guaranties issued by such Person.
"Indebtedness for Borrowed Money" of any Person means, without duplication,
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all obligations of such Person, and all Guaranties issued by such Person, for
borrowed money (including all notes payable and drafts accepted representing
extensions of credit and all obligations evidenced by bonds, debentures, notes,
unpaid reimbursement obligations under drawn letters of credit or other similar
instruments) on which interest charges are customarily paid.
"Indemnified Liabilities" is defined in Section 10.4.
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"Instrument" means any document or writing (whether by formal agreement,
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letter or otherwise) under which any obligation is evidenced, assumed or
undertaken, or any right to any Lien is granted or perfected.
"Interest Period" means, relative to any LIBO Rate Loan, the period which
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shall begin on (and include) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 4.1, and,
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unless the final maturity of such LIBO Rate Loan is accelerated, shall end on
(but exclude) the day which numerically corresponds to such date one week or
one, two, or three months thereafter, as the Borrower may select in its relevant
notice pursuant to Section 4.1; provided, however, that:
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(a) Interest Periods commencing on the same date for LIBO Rate Loans
comprising part of the same Borrowing shall be of the same duration;
(b) if there exists no numerically corresponding day in such month,
such Interest Period shall end on the last Business Day of such month;
(c) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the Business Day next
following such numerically corresponding day (unless such next following
Business Day is the first Business Day of a calendar month, in which case
such Interest Period shall end on the preceding Business Day); and
(d) no Interest Period shall end later than the date established
pursuant to clause (a) or (b) of the definition of Commitment Termination
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Date.
"Liabilities" means all obligations (monetary or otherwise) of the Borrower
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under this Agreement, the Notes and each other Loan Document.
"LIBO Rate" means, relative to each Interest Period applicable to any LIBO
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Rate Loans comprising part of any Borrowing, conversion or continuation, the
rate per annum which appears on Telerate Markets page 3750 or Telerate Markets
page 4833 as of 11:00 a.m., London time, two Business Days prior to the
beginning of such Interest Period, provided that (i) if more than one such
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offered rate appears on the Telerate
6
Markets page, the LIBO Rate will be the arithmetic average (rounded, if
necessary, to the nearest 1/100th of 1%) of such offered rates; and (ii) if no
such offered rates appear on such page, the LIBO Rate for such Interest Period
will be the arithmetic average (rounded, if necessary, to the nearest 1/100th of
1%) of rates quoted by the Reference Banks, at approximately 11:00 a.m., New
York City time, two Business Days prior to the beginning of such Interest
Period, for delivery on the first day of such Interest Period, for the number of
days comprised therein and in an amount substantially equal to such Reference
Bank's LIBO Rate Loan comprising part of such Borrowing to be outstanding during
such Interest Period.
"LIBO Rate Loan" is defined in Section 4.1.
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"LIBO Rate (Reserve Adjusted)" means, relative to all Loans to be made,
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continued or maintained as, or converted into, a LIBO Rate Loan comprising the
same Borrowing for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:
LIBO Rate = LIBO Rate
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(Reserve Adjusted) 1 - LIBOR Reserve Percentage
The Agent shall determine the LIBO Rate (Reserve Adjusted) for each
Interest Period, applicable to LIBO Rate Loans comprising all or part of any
Borrowing, conversion or continuation and promptly notify the Borrower thereof
(which determination shall, in the absence of demonstrable error, be conclusive
and binding on the Borrower) and, if requested by the Borrower, deliver a
statement showing the computation used by the Agent in making such
determination.
"LIBOR Lending Office" means the office of such Bank specified as its
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"LIBOR Lending Office" opposite its name on Schedule I hereto or in the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Bank (or, if no such office is specified, its Domestic Lending Office),
or such other domestic or foreign office or offices of such Bank as such Bank
from time to specify to the Borrower and the Agent.
"LIBOR Reserve Percentage" means, relative to each Interest Period for all
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LIBO Rate Loans comprising the same Borrowing, a percentage (expressed as a
decimal) equal to the daily average during such Interest Period of the
percentages in effect on each day of such Interest Period, as prescribed by the
F.R.S. Board, for determining reserve requirements applicable to "Eurocurrency
Liabilities" pursuant to Regulation D or any other applicable regulation of the
F.R.S. Board which prescribes reserve requirements applicable to "Eurocurrency
Liabilities" as presently defined in Regulation D as applicable to the Bank or
any Participant of the Bank with respect to such participation.
"Lien" means any mortgage, pledge, hypothecation, charge, assignment,
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deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease involving substantially the same economic effect
as any of the foregoing, accompanied by the filing of any financing statement
under the Uniform Commercial Code or comparable law of any jurisdiction).
"Loans" is defined in Section 2.1.
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"Loan Document" means this Agreement and each Instrument and any other
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document from time to time executed and delivered hereunder, whether or not
mentioned herein, including the Notes, the Significant Subsidiary Guaranty and
the Subordination Agreement.
"Loan Party" means the Borrower, each Significant Subsidiary and any other
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party (other than the Agent and any Bank) that executes and delivers a Loan
Document.
"Loan Request" means a loan request and certificate duly executed by the
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chief executive or financial Authorized Officer of the Borrower substantially in
the form of Exhibit B attached hereto.
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7
"Materially Adverse Effect" means any occurrence of whatever nature
-------------------------
(including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding) which would reasonably be expected, on
a consolidated basis for the Borrower and its Subsidiaries in accordance with
GAAP, to have a materially adverse effect on (a) the consolidated financial
condition, business, operations or properties of the Borrower and its
Subsidiaries taken as a whole or (b) the ability of the Borrower or any other
Loan Party to perform any of its payment or other material obligations under
this Agreement or any other Loan Document.
"Maturity" means, relative to any Loan, the date on which such Loan is
--------
stated to be due and payable, in whole or in part (in accordance with the Note
evidencing such Loan, this Agreement, or otherwise), or such earlier date when
such Loan (or any portion thereof) shall be or become due and payable, in whole
or in part, in accordance with the terms of this Agreement, whether by required
prepayment, declaration, or otherwise.
"Monthly Payment Date" means the last day of each calendar month, or if
--------------------
such day is not a Business Day, the next succeeding Business Day.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Non-United States Person" means a Person who is not (i) a citizen,
------------------------
national or resident of the United States, (ii) a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof, or (iii) an estate or trust, in each case the
income of which is subject to United States Federal income taxation regardless
of the source of its income.
"Note" means any promissory note of the Borrower, dated the date hereof,
----
substantially in the form of Exhibit A attached hereto (as such promissory note
---------
may be amended, endorsed, or otherwise modified from time to time) and all other
promissory notes accepted from time to time in substitution, replacement, or
renewal therefor.
"Ongoing Indebtedness" means the Indebtedness described in Item 7.2.1(iii)
-------------------- ---------------
of Exhibit E hereto.
---------
"Organic Document" means, relative to any corporation, its certificate of
----------------
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"Participant" is defined in Section 10.11.
----------- -------------
"PBGC" means the Pension Benefit Guaranty Corporation, a United States
----
corporation and any entity succeeding to all or any of its functions under
ERISA.
"Pension Plan" means a "pension plan", as such term is defined in section
------------
3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multi-employer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower, any Subsidiary or any member of the Controlled Group of any of them,
may have any liability, including any liability under section 4063 or section
4069 of ERISA.
"Permitted Investment" means, at any time, each of the investments listed
--------------------
on Exhibit L hereto.
---------
"Person" means any natural person, corporation, firm, association,
------
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Purchasing Bank" is defined in Section 10.11(b).
--------------- ----------------
8
"Quarterly Payment Date" means the last day of any Fiscal Quarter or, if
----------------------
such day is not a Business Day, the next succeeding Business Day.
"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C. Section
----
6901, et seq., as in effect from time to time.
"Reference Banks" means Citibank, Bank One, NA and The Bank of Nova Scotia.
---------------
"Regulatory Change" means, relative to any Bank, any change after the date
-----------------
hereof in any (or the adoption after the date hereof of any new):
(a) United States Federal or state law or foreign law applicable to
such Bank; or
(b) rule, regulation, interpretation, directive or request (whether or
not having the force of law) applying to such Bank of any court or
governmental authority charged with the interpretation or administration of
any law referred to in clause a or of any fiscal, monetary or other
--------
authority having jurisdiction over such Bank.
"Release" means a "release", as such term is defined in CERCLA.
-------
"Reportable Event" means a "reportable event" described in Section 4043(c)
----------------
of ERISA and the regulations thereunder for which the 30-day notice requirement
has not been waived.
"Required Banks" means at any time Banks owed at least a majority in
--------------
interest of the then aggregate unpaid principal amount of the Loans owing to the
Banks, or, if no such principal amount is then outstanding, Banks having at
least a majority in interest of the Commitments.
"RG" means Rheinbraun US Gmbh, a corporation existing under the laws of The
--
Federal Republic of Germany.
"Rheinbraun AG" means, Rheinbraun AG, a corporation existing under the laws
-------------
of The Federal Republic of Germany.
"SEC" means the Securities and Exchange Commission (or any government body
---
or agency succeeding to the functions of such Commission).
"Significant Subsidiary" means Consolidation Coal Company, a Delaware
----------------------
corporation; Conrhein Coal Company, a Pennsylvania General Partnership; CONSOL
Financial Inc., a Delaware corporation, CONSOL of Kentucky Inc., a Delaware
corporation; CONSOL Pennsylvania Coal Company, a Delaware corporation;
Eighty-Four Mining Company, a Pennsylvania corporation; Fairmont Supply Company,
a Delaware corporation; Island Creek Coal Company, a Delaware corporation; IC
Coal Inc., a Delaware corporation; XxXxxxx Coal Company, a Delaware corporation;
Nineveh Coal Company, a Delaware corporation; Rochester & Pittsburgh Coal
Company, a Pennsylvania corporation and any other wholly-owned direct or
indirect Subsidiary of the Borrower whose assets exceed 5% of the consolidated
assets of the Borrower and the Consolidated Subsidiaries or whose revenues
exceed 5% of the consolidated revenues of the Borrower and the Consolidated
Subsidiaries or any other direct or indirect Subsidiary of the Borrower so
designated by the Borrower after the Effective Date.
"Significant Subsidiary Guaranty" means that certain guaranty, executed by
-------------------------------
each Significant Subsidiary, substantially in the form of Exhibit G attached
---------
hereto (as such may be amended, supplemented, restated or otherwise modified and
in effect from time to time).
"SMCRA" means the Federal Surface Mining Control and Reclamation Act of
-----
1977, as in effect from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
---
Companies, Inc.
9
"Subordination Agreement" means that certain subordination agreement,
-----------------------
substantially in the form of Exhibit J attached hereto (as such may be amended,
supplemented, restated or otherwise modified and in effect from time to time).
"Subsidiary" of any Person means any other corporation, partnership, joint
----------
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the outstanding shares of capital stock of which having ordinary
voting power for the election of directors such corporation, (b) the interest in
the capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries and, except as otherwise indicated herein, references to
Subsidiaries shall refer to Subsidiaries of the Borrower.
"Taxes" is defined in Section 3.9.
----- ------------
"Total Commitment Amount" means the aggregate Commitments of the Banks.
-----------------------
"Transferee" is defined in Section 10.11(c).
---------- ----------------
"Type" refers to the distinction of any Loan as being a Base Rate Loan or a
----
LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its 50 States
------------- ----
and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined in section
------------
3(1) of ERISA (other than a multiemployer plan as defined in section 3(37) of
ERISA), under which the Borrower or any Subsidiary may have any liability,
including any obligation to contribute.
"Withdrawl Liability" has the meaning specified in Part I of Subtitle I of
-------------------
Title IV of ERISA.
SECTION 1.2 Use of Defined Terms. Terms for which meanings are provided in
--------------------
this Agreement shall, unless otherwise defined or the context otherwise
requires, have such meanings when used in the Exhibits attached hereto, each
Loan Request, Continuation/Conversion Notice, notice and other communication
delivered from time to time in connection with this Agreement or any Loan
Document and the definitions of such terms are applicable to the singular as
well as the plural form of such terms, as the context requires.
SECTION 1.3 Accounting and Financial Determinations. Where the character or
---------------------------------------
amount of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP used in, and consistently applied with, the financial
statements referred to in Section 6.4.
-----------
ARTICLE II
COMMITMENT
SECTION 2.1 Commitment. Each Bank severally agrees, on the terms and
----------
conditions hereinafter set forth, to make Loans to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Commitment Termination Date in an aggregate amount not to exceed at any time
outstanding such Bank's Commitment. Each Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall consist of Loans of the same Type made on the same day by the Banks
ratably according to their respective Commitments. Within the limits of each
Bank's Commitment, the Borrower may borrow under this Section 2.1, prepay
pursuant to Section 3.3 and reborrow under this Section 2.1.
10
SECTION 2.2 Total Commitment Amount. The Borrower shall have the right,
-----------------------
upon at least three Business Days' notice to the Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective Commitments of the
Banks, provided that each partial reduction shall be in the aggregate amount of
--------
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.3 Fees. The Borrower agrees to pay the Agent for the ratable
----
account of each Bank for the period (including any portion thereof when its
Commitment is suspended by reason of the Borrower's inability to satisfy any
condition of Article V) commencing on the Effective Date and continuing through
---------
the Commitment Termination Date, the following fees:
(a) a revolving credit facility fee for each day which shall be equal
to (i) the applicable percentage for such day, determined, based on the
Credit Rating on such day, in accordance with the table set forth below,
multiplied by (ii) 1/360, multiplied by (iii) the Total Commitment Amount
on such day.
Credit Rating Applicable Percentage
------------- ---------------------
Level I 0.080%
Level II 0.125%
Level III 0.250%
Such revolving credit facility fees shall be due and payable by the
Borrower quarterly in arrears for the period ending on each Quarterly
Payment Date, commencing with the first such day following the Effective
Date and on the Commitment Termination Date; and
(b) a utilization fee for each day on which the aggregate principal
amount of all outstanding Loans exceeds fifty percent (50%) of the Total
Commitment Amount on such day equal to (i) the applicable percentage for
such day, determined, based on the Credit Rating on such day, in accordance
with the table set forth below, multiplied by (ii) 1/360, multiplied by
(iii) the aggregate principal amount of all outstanding Loans on such day.
Credit Rating Applicable Percentage
------------- ---------------------
Level I 0.070%
Level II 0.125%
Level III 0.250%
Such utilization fees shall be due and payable by the Borrower quarterly in
arrears to the Bank for the period ending on each Quarterly Payment Date,
commencing with the first such day following the Effective Date and on the
Commitment Termination Date.
SECTION 2.4 Commitment Termination Date. The Commitment shall terminate and
---------------------------
the Banks shall be relieved of their obligations to make any Loan on the
Commitment Termination Date. The Borrower may from time to time request an
extension of the Commitment Termination Date for an additional 360 days by
executing and delivering to the Agent a Commitment Termination Date Extension
Request at least thirty (30) but not more than forty-five (45) days prior to the
then current Commitment Termination Date, which the Agent shall promptly
distribute to each of the Banks. The Commitment Termination Date as to any Bank
shall be so extended if such Bank, on or prior to the date that is not later
than 20 days prior to the then current Commitment Termination Date, duly
executes a counterpart of such Commitment Termination Date Extension Request;
provided, that any such extension shall not be effective before the then current
--------
Commitment Termination Date and provided, further, that the conditions precedent
-------- -------
set forth in Section 5.2 shall have been satisfied. Each Bank may in its sole
and absolute discretion withhold its consent to any such Commitment Termination
Date Extension Request.
SECTION 2.5. Increase in the Aggregate Commitments. (a) The Borrower may,
-------------------------------------
at any time, by notice to the Agent, request that the aggregate amount of the
Commitment be increased (each a "Commitment Increase") to be effective as of a
-------------------
date prior to the scheduled Commitment Termination Date
11
then in effect (the "Increase Date") as specified in the related notice to the
-------------
Agent; provided, however that (i) in no event shall the aggregate amount of the
-------- -------
Commitments at any time exceed $800,000,000 and (ii) on the date of any request
by the Borrower for a Commitment Increase and on the related Increase Date, the
applicable conditions set forth in Section 5.2 shall be satisfied.
-----------
(b) The Agent shall promptly notify the Banks of a request by the
Borrower for a Commitment Increase, which notice shall include (i) the proposed
amount of such requested Commitment Increase, (ii) the proposed Increase Date
and (iii) the date by which Banks wishing to participate in the Commitment
Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Bank that is willing to participate in
---------------
such requested Commitment Increase (each an "Increasing Bank") shall, in its
---------------
sole discretion, give written notice to the Agent on or prior to the Commitment
Date of the amount by which it is willing to increase its Commitment. If the
Banks notify the Agent that they are willing to increase the amount of their
respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Banks willing to participate therein in such amounts as are
agreed between the Borrower and the Agent.
(c) Promptly following each Commitment Date, the Agent shall notify
the Borrower as to the amount, if any, by which the Banks are willing to
participate in the requested Commitment Increase. If the aggregate amount by
which the Banks are willing to participate in any requested Commitment Increase
on any such Commitment Date is less than the requested Commitment Increase, then
the Borrower may extend offers to one or more Eligible Assignees to participate
in any portion of the requested Commitment Increase that has not been committed
to by the Banks as of the applicable Commitment Date; provided, however, that
-------- -------
the Commitment of each such Eligible Assignee shall be in an amount of not less
than $5,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.5(c) (each such Eligible Assignee, an "Assuming Bank") shall become a
-------------
Bank party to this Agreement as of such Increase Date and the Commitment of each
Increasing Bank for such requested Commitment Increase shall be so increased by
such amount (or by the amount allocated to such Bank pursuant to the last
sentence of Section 2.5(b)) as of such Increase Date; provided, however, that
-------- -------
the Agent shall have received on or before such Increase Date the following,
each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of
the Borrower or the Executive Committee of such Board approving the
Commitment Increase and the corresponding modifications to this Agreement
and (B) an opinion of counsel for the Borrower (which may be in-house
counsel), in substantially the form of Exhibit F hereto;
---------
(ii) an assumption agreement from each Assuming Bank, if any, in form
and substance satisfactory to the Borrower and the Agent (each an
"Assumption Agreement"), duly executed by such Eligible Assignee, the Agent
--------------------
and the Borrower; and
(iii) confirmation from each Increasing Bank of the increase in the
amount of its Commitment in a writing satisfactory to the Borrower and the
Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.5(d), the Agent shall notify
the Banks (including, without limitation, each Assuming Bank) and the Borrower,
on or before 1:00 P.M. (New York City time), by telecopier or telex, of the
occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Bank and each Assuming Bank on such date.
12
ARTICLE III
LOANS AND NOTES
SECTION 3.1 Borrowing Procedure. (a) Each Borrowing shall be made on
-------------------
notice, given not later than (x) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of LIBO Rate Loans or (y) 11:00 A.M. (New York City time)
on the date of the proposed Borrowing in the case of a Borrowing consisting of
Base Rate Loans, by the Borrower to the Agent, which shall give to each Bank
prompt notice thereof by telecopier or telex. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed promptly in writing, or
-------------------
telecopier or telex in substantially the form of Exhibit B hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Type of Loans comprising
such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case
of a Borrowing consisting of LIBO Rate Loans, initial Interest Period for each
such Loan. Each Bank shall, before 1:00 P.M. (New York City time) on the date of
such Borrowing make available for the account of its Applicable Lending Office
to the Agent at the Agent's Account, in same day funds, such Bank's ratable
portion of such Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower at the Agent's address referred
to in Section 10.2.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select LIBO Rate Loans for any Borrowing if the
aggregate amount of such Borrowing is less than $5,000,000 or if the obligation
of the Banks to make LIBO Rate Loans shall then be suspended pursuant to Section
4.2, 4.3 or 4.6 and (ii) the LIBO Rate Loans may not be outstanding as part of
more than eight separate Borrowings.
(c) Unless the Agent shall have received notice from a Bank prior to
the time of any Borrowing that such Bank will not make available to the Agent
such Bank's ratable portion of such Borrowing, the Agent may assume that such
Bank has made such portion available to the Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 3.1 and the 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 Bank shall not have so made
such ratable portion available to the Agent, such Bank and the Borrower
severally agree to repay to the 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
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 Bank, the
Federal Funds Rate. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan as part of such
Borrowing for purposes of this Agreement.
(d) The failure of any Bank to make the Loan to be made by it as part
of any Borrowing shall not relieve any other Bank of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on the date of any Borrowing.
SECTION 3.2 Note. All Loans made by each Bank shall be evidenced by a Note
----
payable to the order of the Bank in a maximum principal amount equal to such
Bank's original Commitment. The Borrower hereby irrevocably authorizes each Bank
to make (or cause to be made) appropriate notations on the grid attached to such
Bank's Note (or on a continuation of such grid attached to any such Note and
made a part thereof), which notations, if made, shall evidence, inter alia, the
----- ----
date of, the outstanding principal of, and the interest rate (including any
conversions thereof pursuant to Section 4.2) and Interest Period applicable to,
-----------
the Loans evidenced thereby. Any such notations on any such grid (and on any
such continuation) indicating the outstanding principal amount of each Bank's
Loans shall be rebuttable presumptive evidence of the principal amount thereof
owing and unpaid, but the failure to record any such amount on such grid (or on
such continuation) shall not limit or otherwise affect the obligations of the
Borrower hereunder or under such Note to make payments of principal of or
interest on such Loans when due.
13
SECTION 3.3 Principal Payments and Prepayments. The Borrower will repay to
----------------------------------
the Agent for the ratable account of the Banks the outstanding principal amount
of each Loan on the Commitment Termination Date. In addition, the Borrower:
(a) may make a voluntary prepayment in part in an aggregate principal
amount of not less than $5,000,000 and an integral multiple of $1,000,000
in excess thereof, or in full of the outstanding principal amount of the
Loans from time to time at any time, in each case upon at least three
Business Days' prior notice (or same day notice in the case of a Base Rate
Loan) to the Agent;
(b) shall, on each date when any reduction in the Total Commitment
Amount shall become effective pursuant to Section 2.2, make a mandatory
-----------
prepayment of the Loans equal to the excess, if any, of the outstanding
principal amount of all Loans over the Total Commitment Amount as so
reduced; and
(c) shall, on each date when the sum of the aggregate principal amount
of all Loans outstanding plus the Commercial Paper Indebtedness exceeds the
Total Commitment Amount, make a mandatory prepayment of the then aggregate
outstanding principal amount of all Loans comprising a part of the same
Borrowing in an aggregate amount equal to such excess.
Each prepayment of a Loan made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.5. All interest
-----------
accrued on the principal amount prepaid shall be paid on the date of such
prepayment. No prepayment of principal pursuant to clause (a) or (c) above
---------- --
prior to the Commitment Termination Date shall cause a reduction in the
Total Commitment Amount.
Each prepayment shall, except as the Borrower may otherwise have
notified the Agent, be applied, to the extent of such prepayment:
(a) first, to the principal amount thereof being maintained as a
Base Rate Loan; and
(b) second, to the principal amount thereof being maintained as a
LIBO Rate Loan.
SECTION 3.4 Interest. The Borrower agrees to pay interest on the principal
--------
amount of each Loan from time to time unpaid prior to and at Maturity at a rate
per annum:
(a) on that portion of the outstanding principal amount thereof
maintained from time to time as a Base Rate Loan, equal to the sum of
the Base Rate from time to time most recently announced plus the
Applicable Margin per annum, and
(b) on that portion of the outstanding principal amount thereof
maintained from time to time as one or more LIBO Rate Loans during
each applicable Interest Period, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period plus the Applicable Margin
per annum.
SECTION 3.5 Post-Maturity Rates. After the Maturity of all or any portion
-------------------
of the principal amount of the Loans or after any other monetary Liabilities
shall have become due, the Borrower shall pay interest (after as well as before
judgment) on the principal amount of all types of Loans so matured or on such
other monetary Liabilities, as the case may be, at a rate per annum which is
determined by increasing each of the Applicable Margins set forth in clauses (a)
----------
and (b) of Section 3.4 by 2% per annum for Loans so matured and, to the extent
--- -----------
permitted by applicable law, at a rate per annum equal to the Base Rate plus 2%
for such other monetary Liabilities.
SECTION 3.6 Payment Dates. Interest accrued on the Loans prior to Maturity
-------------
(as aforesaid) shall be payable, without duplication:
14
(a) on that portion of the outstanding principal amount of each
Loan maintained as a Base Rate Loan, on each Monthly Payment Date,
commencing with the first such Monthly Payment Date following the date
of such Loan;
(b) on that portion of the outstanding principal amount of each
Loan maintained as a LIBO Rate Loan, on the last day of each
applicable Interest Period; and
(c) on that portion of the outstanding principal amount of each
Loan converted into a Base Rate Loan or a LIBO Rate Loan, as the case
may be, on a day when interest would not otherwise have been payable
pursuant to clause (a) or (b), on the date of such conversion.
Interest on the Loans shall be payable at Maturity (as aforesaid) and,
thereafter, on demand. The Agent shall give prompt notice to the Borrower of
each computation of accrued interest before the due date thereof.
SECTION 3.7 Payments, Computations. (a) Unless otherwise expressly provided
----------------------
in this Agreement, all payments by the Borrower pursuant to this Agreement or
any other Loan Document, whether in respect of principal or interest, shall be
made by the Borrower to the Agent at the Agent's Account without set-off,
deduction, or counterclaim, not later than 1:00 P.M., New York time, on the date
due, in same day or immediately available funds. Funds received after that time
shall be deemed to have been received by the Bank on the next following Business
Day. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees ratably (other than
amounts payable pursuant to Sections 3.9, 4.4 or 4.5) to the Banks for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Bank to such Bank for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Bank becoming a
Bank hereunder as a result of a Commitment Increase pursuant to Section 2.5, and
upon the Agent's receipt of such Bank's Assumption Agreement and recording of
the information contained therein in the Register, from and after the applicable
Increase Date or Extension Date, as the case may be, the Agent shall make all
payments hereunder and under any Notes issued in connection therewith in respect
of the interest assumed thereby to the Assuming Bank. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 10.11(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Bank 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. All interest and fees shall be
computed on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which fee is payable
over a year comprised of 360 days. Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
---------
"Interest Period" with respect to payments then due of principal of or interest
---------------
on any Loan being maintained as LIBO Rate Loans) be made on the next succeeding
Business Day and such extension of time shall be included in computing interest,
if any, in connection with such payment.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on
such date and the Agent may, in reliance upon such assumption, cause
to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower shall not
have so made such payment in full to the Agent, each Bank shall repay
to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 3.8 Setoff. In addition to and not in limitation of any rights of
------
any Bank or other holder of any Note under applicable law, each Bank and each of
its Affiliates shall, upon the occurrence of any Default described in Section
-------
8.1.4 or upon the occurrence of any other Event of Default, have the right to
-----
set off, appropriate and apply to the payment of the Liabilities owing to it any
and all balances, credits, deposits,
15
accounts, or moneys of the Borrower then maintained with such Bank or such
Affiliate and (as security for such Liabilities) the Borrower hereby grants to
each Bank a continuing security interest in any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with
such Bank or its Affiliates. Each Bank agrees promptly to notify the Borrower
after any such setoff and application made by such Bank or such Affiliate;
provided, however, that the failure to give such notice shall not affect the
-------- -------
validity of such setoff and application. The rights of each Bank and its
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Bank and its Affiliates may have.
SECTION 3.9 Taxes. (a) All payments by the Borrower of principal of, and
-----
interest on, the Loans and all other amounts payable hereunder to the Agent or
any Bank (including any Purchasing Bank) shall be made free and clear of and
without deduction or withholding for any present or future income, stamp, or
other taxes, fees, duties or other charges of any nature whatsoever imposed by
any taxing authority, other than taxes imposed on or measured by such
recipient's net income or receipts imposed by the jurisdiction in which the
Agent or such Bank is organized and the jurisdiction of such Bank's Applicable
Lending Office (such non-excluded items being hereinafter referred to as
"Taxes"), except to the extent that such deduction or withholding is required
-----
pursuant to any applicable law, rule, or regulation. In the event that any
deduction or withholding from any payment to be made by the Borrower hereunder
is required in respect of any Taxes pursuant to any applicable law, rule, or
regulation, then the Borrower will:
(i) pay to the relevant authority the full amount required to be so
withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(iii) (except to the extent that such deduction or withholding results
from the breach, by a recipient of a payment, of its Exemption Agreement,
or would not be required if such recipient's Exemption Representation were
true) pay to the Agent for the benefit of each Bank or holder of a Note
such additional amount or amounts as is necessary to ensure that the net
amount actually received by the Agent, such Bank or such holder, taking
into account any taxes imposed of any kind on payments made pursuant to
this Section 3.9(a) (including any Taxes on such additional amount), will
equal the full amount the Agent, such Bank or such holder would have
received had no such deduction or withholding been required. The Agent,
each Bank and each holder shall determine such additional amount or amounts
payable to it (which determination shall, in the absence of demonstrable
error, be conclusive and binding on the Borrower).
Moreover, if any Taxes are directly imposed on the Agent or any Bank, as a
result of any change in law or any applicable double taxation treaty of the
United States, the jurisdiction of the Bank's incorporation or the jurisdiction
in which the Bank's Domestic Lending Office or LIBOR Lending Office is located,
with respect to any payment received by the Agent or any Bank hereunder, the
Agent or such Bank may pay such Taxes and the Borrower will promptly pay such
additional amounts (including any penalties, interest or out-of-pocket expenses)
as are necessary in order that the net amount, taking into account any taxes
imposed of any kind on payments made pursuant to this Section 3.9(a), received
by the Agent or such Bank after the payment of such Taxes (including any Taxes
on such additional amount) shall equal the amount such Person would have
received had such Taxes not been imposed (except to the extent that such Taxes
result from the breach, by such payee, of its Exemption Agreement, or would not
be required if such payee's Exemption Representation were true).
(b) If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and each
Bank for any incremental Taxes, interest or penalties that may become payable by
the Agent or such Bank as a result of any such failure.
(c) Each Bank and each subsequent holder of any Note that is a Non-United
States Person agrees (such Bank's "Exemption Agreement") (to the extent it is
-------------------
permitted to do so under the laws and any applicable double taxation treaties of
the United States, the jurisdiction of such Bank's incorporation, and the
16
jurisdictions in which such Bank's Domestic Lending Office and such Bank's LIBOR
Lending Office are located) to execute and deliver to the Borrower prior to the
first scheduled payment date in each Fiscal Year, a United States Internal
Revenue Service Form W-8BEN or Form W-8ECI (or any successor form),
appropriately completed and claiming complete (or, in the case it becomes
appropriate due to any change in law or such applicable double taxation
treaties, partial) exemption from withholding and deduction of United States
Federal Taxes.
(d) Each Bank, each Assuming Bank and each Purchasing Bank hereby
represents and warrants (such Bank's "Exemption Representation") to the Borrower
------------------------
that on the date hereof (or, in the case of an Assuming Bank or a Purchasing
Bank, on the date on which such Assuming Bank or Purchasing Bank becomes a Bank
hereunder) (i) its Domestic Lending Office and its LIBOR Lending Office are
entitled to receive payments of principal of, and interest on, Loans made
hereunder without deduction or withholding for or on account of any Taxes
imposed by the United States or any political subdivision thereof, (ii) it is
permitted to take the actions described in clause (c) above (with respect to
---------
complete exemption from withholding and deduction of United States Federal
Taxes) under the laws and any applicable double taxation treaties of the
jurisdictions specified in such clause (c) and (iii) any payment received by
---------
such Bank hereunder is not subject to any Taxes, whether or not such Taxes are
required to be deducted or withheld by the Borrower.
(e) The Bank agrees to use reasonable efforts (consisted with its internal
policy and legal and regulatory restrictions) to change its Domestic Lending
Office or LIBOR Lending Office or prepare, execute and file any additional forms
or other documents which may be necessary or advisable to avoid or to minimize
any amounts otherwise payable under this Section 3.9, in each case solely if
-----------
such change or such preparation, execution and filing can be made or done in a
manner so that the Bank, in its reasonable determination, suffers no legal,
economic, regulatory or other disadvantage.
(f) In the event that the Borrower becomes required to pay an additional
amount pursuant to this Section 3.9 to any Bank, then the Borrower shall have
-----------
the right to seek a substitute bank or banks to promptly replace such Bank under
this Agreement in accordance with the provisions of Section 10.11(b).
---------------
(g) The parties agree to cooperate with each other in connection with any
Taxes matters pertaining to this Agreement and each Bank shall promptly notify
the Borrower of any Taxes imposed on it with respect to any payment received by
such Bank hereunder, stating the reasons therefor and the amount, if any,
payable by the Borrower hereunder in respect of such Taxes.
ARTICLE IV
BASE RATE AND LIBO RATE OPTIONS FOR THE LOANS
SECTION 4.1 Elections. The Loans comprising any Borrowing may be made as a
---------
"Base Rate Loan" or, at the Borrower's election made in accordance with this
--------------
Section, as a loan having for each particular Interest Period a fixed rate of
interest determined by reference to the LIBO Rate (Reserve Adjusted) (a "LIBO
----
Rate Loan"). The Borrower may request from time to time by delivering to the
---------
Agent not later than 12:00 noon (New York City time) a Continuation/ Conversion
Notice request, on not less than one (or not less than three if a Loan is to be
continued as, or converted into, a LIBO Rate Loan) nor more than five Business
Days' notice:
(a) that all, or any portion in a minimum amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, of the outstanding
principal amount of any Borrowing be converted from Base Rate Loans into
LIBO Rate Loans or, subject to Section 4.5, from LIBO Rate Loans into Base
-----------
Rate Loans; and
17
(b) on the expiration of the Interest Period applicable to any LIBO
Rate Loans, that all, or any portion in a minimum amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof, of the outstanding
principal amount of such LIBO Rate Loans be converted into Base Rate Loans;
provided, however, that:
-------- -------
(c) no portion of the outstanding principal amount of any Loans may be
continued as, or be converted into, LIBO Rate Loans if, after giving effect
to such action, the Interest Period applicable thereto shall extend beyond
the date of any prepayment required by Section 3.3, unless a sufficient
-----------
principal amount of other Loans are being maintained as Base Rate Loans to
permit such prepayment to be applied in full to such Base Rate Loans;
(d) no portion of the outstanding principal amount of any Loans may be
continued as, or be converted into, a LIBO Rate Loan when any Default has
occurred and is continuing; and
(e) If the Borrower shall fail to select the duration of any Interest
Period for any LIBO Rate Loans in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.1, the Agent will
forthwith so notify the Borrower and the Banks and such Loans will
automatically, on the last day of the then existing Interest Period
therefor, be Converted into Base Rate Loans.
Each Continuation/Conversion Notice requesting that all, or any portion, of
the principal amount of the Loans be continued as, or be converted into, LIBO
Rate Loans shall specify the duration of the Interest Period commencing upon
such continuation or conversion.
Each Bank may, if it so elects, fulfill its commitment to make or continue
any portion of the principal amount of a Loan as, or to convert any portion of
the principal amount of a Loan into, one or more LIBO Rate Loans by causing a
foreign branch or Affiliate of such Bank to make any such LIBO Rate Loan;
provided, however, that in such event such LIBO Rate Loan shall be deemed to
-------- -------
have been made by such Bank, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Bank and shall be deemed to be held
by it, to the extent of such LIBO Rate Loan, for the account of such foreign
branch or Affiliate; and provided, further, that the making of such LIBO Rate
-------- -------
Loans by a foreign branch or Affiliate of such Bank does not result in any
additional Taxes assessable against such Bank in connection with any payments
made by the Borrower hereunder.
Whenever any Bank makes any notations pursuant to Section 3.2 on the grid
-----------
attached to the Note (or on the continuation of such grid) held by it and
whenever a Loan is converted into a Base Rate Loan or a LIBO Rate Loan, such
Bank will make further notations on the grid attached to such Note (or on such
continuation) reflecting the portions of the outstanding principal amounts
thereof being maintained as a Base Rate Loan and LIBO Rate Loans. Failure to
record any such amounts on the grid shall not limit or otherwise affect the
obligations of the Borrower to make payments of principal and interest on each
Note when due.
The Borrower understands that, if it elects that any portion of the
principal amount of a Borrowing be made, continued as, or converted into, a LIBO
Rate Loan, each Bank may (while being entitled to fund all or any portion of
such LIBO Rate Loan as it may see fit) wish to be able to fund such LIBO Rate
Loan by purchasing Dollar deposits in its LIBOR Office's interbank eurodollar
market. Accordingly, in connection with any determination to be made for
purposes of Section 4.2, 4.3, 4.4 or 4.5, it shall be conclusively presumed that
----------- --- --- ---
each Bank has elected to fund all LIBO Rate Loans by purchasing Dollar deposits
in such interbank eurodollar market.
SECTION 4.2 LIBO Rate Lending Unlawful. If as the result of any Regulatory
--------------------------
Change any Bank shall determine (which determination shall, in the absence of
demonstrable error, be conclusive and binding on the Borrower) that it is
unlawful for any Bank to make, continue or maintain a Loan as, or to convert a
Loan into, one or more LIBO Rate Loans, the obligation of the Banks under
Section 4.1 to make, continue or maintain any portion of the principal amount of
-----------
a Loan as, or to convert such Loan into, one or more LIBO
18
Rate Loans shall, upon such determination (and telephonic notice thereof
confirmed in writing to the Borrower), forthwith terminate, and any portion of
the principal amount of all LIBO Rate Loans shall automatically convert into
Base Rate Loans. If circumstances subsequently change so that the Banks shall
determine that the circumstances causing such suspension no longer exist, the
obligation of the Banks under Section 4.1 to make or continue Loans as, or to
-----------
convert Loans into, LIBO Rate Loans shall, upon such determination (and
telephonic notice thereof confirmed in writing to the Borrower), forthwith be
reinstated.
SECTION 4.3 Deposits Unavailable. If prior to the date on which all or any
--------------------
portion of the principal amount of any Loan is to be made, continued as, or
converted into, a LIBO Rate Loan, the Required Banks shall determine for any
reason whatsoever (which determination shall, in the absence of demonstrable
error, be conclusive and binding on the Borrower) that dollar deposits in the
relevant amount and for the relevant Interest Period are not available to such
Banks in their relevant markets or the LIBO Rate does not reflect the cost of
funding such Loans, the Agent shall promptly give telephonic notice of such
determination confirmed in writing to the Borrower, and the obligation under
Section 4.1 of the Banks to make, continue any Loan as, or to convert a Loan
-----------
into, one or more LIBO Rate Loans shall, upon such notification, forthwith
terminate; and the portion of all Loans then maintained as LIBO Rate Loans shall
on the expiration of the Interest Period applicable thereto automatically
convert into Base Rate Loans. If circumstances subsequently change so that the
circumstances causing such suspension no longer exist, the Agent shall promptly
give telephonic notice thereof confirmed in writing to the Borrower and the
obligations of the Banks under Section 4.1 to make or continue Loans as, or
-----------
convert Loans into, LIBO Rate Loans shall be reinstated.
SECTION 4.4 Capital Adequacy; Increased Costs. The Borrower further agrees
---------------------------------
to reimburse the Bank and/or its holding company for any increase in the cost of
making, continuing, maintaining or converting (or of the obligation to make,
continue, maintain or convert) any Loans hereunder (or any portion thereof) and
for any reduction in the amount of any sum receivable by such Bank hereunder in
respect of making, continuing, maintaining or converting (or of its obligation
to make, continue, maintain or convert) any Loans hereunder (or any portion
thereof) from time to time by reason of:
(a) to the extent not included in the calculation of the LIBO Rate
(Reserve Adjusted), the adoption or compliance with any capital adequacy,
reserve, special deposit, or similar requirement against assets of,
deposits with or for the account of, or credit extended by, such Bank
and/or its holding company, under or pursuant to any law, treaty, rule,
regulation (including any F.R.S. Board regulation), or requirement in
effect on the date hereof, or as the result of any Regulatory Change; or
(b) any Regulatory Change which shall subject such Bank and/or its
holding company to any tax (other than taxes on net income or receipts),
levy, impost, charge, fee, duty, deduction, or withholding of any kind
whatsoever or change the taxation of any Loan made or maintained as a LIBO
Rate Loan and the interest thereon (other than any change which affects,
and to the extent that it affects, the taxation of net income or receipts).
In any such event, each Bank shall promptly notify the Borrower (with a
copy of such notice to the Agent) thereof stating the reasons therefor and the
additional amount required fully to compensate the Bank and/or its holding
company for such increased cost or reduced amount. Such additional amounts shall
be payable on demand after receipt of such notice. A statement as to any such
increased cost or reduced amount or any change therein (including calculations
thereof in reasonable detail) shall be submitted by the Bank (with a copy of
such notice to the Agent) to the Borrower and shall, in the absence of
demonstrable error, be conclusive and binding on the Borrower. In the event that
the Borrower is required to pay an additional amount pursuant to this Section
-------
4.4 to any Bank and/or its holding company, then the Borrower shall have the
---
right to seek a substitute bank or banks to replace such Bank under this
Agreement in accordance with the provisions of Section 10.11(b).
---------------
SECTION 4.5 Funding Losses. In the event any Bank shall incur any loss or
--------------
expense (including any loss or expense incurred by reason of the liquidation, or
reemployment of deposits or other funds acquired by the Bank to make, continue
or maintain any portion of the principal amount of any Loan as, or to convert
any portion of the principal amount of any Loan into, a LIBO Rate Loan) as a
result of:
19
(a) payment or prepayment of the principal amount of any LIBO Rate
Loan on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Section 3.3 or otherwise;
-----------
(b) any conversion of all or any portion of the outstanding principal
amount of any LIBO Rate Loan to a Base Rate Loan pursuant to Section 4.1
-----------
prior to the expiration of the Interest Period then applicable thereto (but
excluding in each case any loss or expense resulting therefrom to the
extent such Bank is reimbursed therefor by interest payable pursuant to
clause (c) of Section 3.6);
--------- -----------
(c) a Loan not being made, continued as, or converted into, a LIBO
Rate Loan in accordance with a Loan Request or the Continuation/Conversion
Notice given therefor (other than as the result of a default by such Bank
in complying with such Loan Request or such Continuation/Conversion
Notice); or
(d) failure to prepay after notice of prepayment is given;
then, upon the request of such Bank (with a copy to the Agent), the Borrower
shall pay directly to such Bank such amount as will (in the reasonable
determination of such Bank) reimburse such Bank for such loss or expense. A
certificate as to any such loss or expense (including calculations thereof in
reasonable detail) shall be submitted by such Bank (with a copy to the Agent) to
the Borrower and shall, in the absence of demonstrable error, be conclusive and
binding on the Borrower.
SECTION 4.6 Interest Rate Determination. (a) if the applicable Telerate
---------------------------
Markets Page is not available, each Reference Bank agrees to furnish to the
Agent timely information for the purpose of determining each LIBO Rate. If any
one or more of the Reference Banks shall not furnish such timely information to
the Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall give prompt notice to the Borrower
and the Banks of the applicable interest rate determined by the Agent for
purposes of Section 3.4, and the rate, if any, furnished by each Reference Bank
for the purpose of determining the interest rate under Section 3.4.
(b) If the applicable Telerate Markets Page is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for
determining the LIBO Rate for any LIBO Rate Loans,
(i) the Agent shall forthwith notify the Borrower and the Banks that
the interest rate cannot be determined for such LIBO Rate Loans,
(ii) with respect to LIBO Rate 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 Banks to make LIBO Rate Loans or to
Convert Loans into LIBO Rate Loans shall be suspended until the Agent shall
notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist.
SECTION 4.7. Sharing of Payments, Etc. If any Bank shall obtain any payment
------------------------
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Loans owing to it (other than pursuant to
Sections 3.9, 4.4 or 4.5) in excess of its ratable share of payments on account
of the Loans obtained by all the Banks, such Bank shall forthwith purchase from
the other Banks such participations in the Loans owing to them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
-------- ------
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together with an amount equal
to such Bank's ratable share (according to the proportion of (i) the amount of
such Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or
20
payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees that any Bank so purchasing a participation from another Bank
pursuant to this Section 4.7 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Bank were the direct creditor of the
Borrower in the amount of such participation.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Effective Date. Section 2.1 of this Agreement shall become
--------------
effective on and as of the Effective Date, provided that the following
--------
conditions precedent have been satisfied.
SECTION 5.1.1 Resolutions. The Agent shall have received on or before the
----------
Effective Date the following, each dated such day and in sufficient copies for
each Bank:
(a) a certificate of the Secretary or an Assistant Secretary of the
Borrower as to
(i) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of the Loan
Documents to be executed by it hereunder;
(ii) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each Loan
Document executed by it, upon which certificate the Agent may
conclusively rely until it shall have received a further certificate
of the Secretary or an Assistant Secretary of the Borrower canceling
or amending such prior certificate; and
(iii) a true and correct copy of the By-laws as then in effect;
(b) a certificate of the Secretary or any Assistant Secretary of each
Significant Subsidiary and each Subsidiary party to the Subordination
Agreement as to
(i) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance by such
Loan Party of the Loan Documents to be executed and delivered by it
hereunder;
(ii) the incumbency and signatures of those of its officers
authorized to act with respect to such Loan Documents upon which
certificate the Agent may conclusively rely until it shall have
received a further certificate of such Loan Party canceling or
amending such prior certificate; and
(iii) a true and correct copy of the By-laws as then in effect.
SECTION 5.1.2 Delivery of Note. Borrower shall have delivered to the Agent
----------------
Notes payable to the order of each Bank, duly executed and delivered and
conforming to the requirements of Section 3.2.
------------
SECTION 5.1.3 Opinions of Counsel. The Agent shall have received opinions
-------------------
from the general counsel of the Borrower, each Significant Subsidiary and each
Subsidiary party to the Subordination Agreement, substantially in the form of
Exhibit F attached hereto.
---------
SECTION 5.1.4 Significant Subsidiary Guaranty. The Agent shall have
-------------------------------
received the Significant Subsidiary Guaranty duly executed by each Person that
is a Significant Subsidiary as of the Effective Date.
21
SECTION 5.1.5 Subordination Agreement. The Agent shall have received the
-----------------------
Subordination Agreement duly executed by each Subsidiary that is a corporation
and the Borrower which, as of the Effective Date, is expected to make any loans
to any Significant Subsidiary or the Borrower.
SECTION 5.1.6 Satisfactory Legal Form. All documents executed or submitted
-----------------------
pursuant hereto by or on behalf of the Borrower, any Significant Subsidiary or
any Subsidiary party to the Subordination Agreement shall be satisfactory in
form and substance to the Agent and its counsel; each Bank shall have received
all information, and such counterpart originals or such certified or other
copies of such materials, as such Bank may request; and all legal matters
incident to the transactions contemplated by this Agreement and each other Loan
Document shall be satisfactory to counsel to the Agent.
SECTION 5.1.7 Termination of Bilateral Loan Agreements. The Borrower shall
----------------------------------------
have terminated in whole the commitments of, and paid in full all obligations
owing to, the Lenders under the bilateral loan agreements between the Borrower
and each such Lender, respectively.
SECTION 5.2 All Loans, Extension of Commitment Termination Date and Each
------------------------------------------------------------
Increase Date. The obligation of the Banks to make any Loans on the occasion of
-------------
each Borrowing, each extension of the Commitment Termination Date and each
Commitment Increase shall be subject to the satisfaction of the conditions
precedent set forth in Sections 5.2.1 and, in the case of a Borrowing, Section
-------------- -------
5.2.2, and each request that a Borrowing be made hereunder, for an extension of
-----
the Commitment Termination Date or for a Commitment Increase shall constitute a
certification by the Borrower that such conditions precedent will be satisfied
on the date of such requested Borrowing, extension of Commitment Termination
Date or Increase Date (and after giving effect to such Borrowing, extension of
Commitment Termination Date or Commitment Increase, as the case may be).
SECTION 5.2.1 Compliance with Warranties, non-Default. The representations
---------------------------------------
and warranties set forth in Article VI shall have been true and correct in all
----------
material respects as of the date initially made, and on the date (and after
giving effect to the incurrence) of such Loan, extension of Commitment
Termination Date or such Increase Date:
(a) such representations and warranties shall be true and correct in
all material respects with the same effect as if then made;
(b) no Default shall have then occurred and be continuing; and
(c) since the Effective Date, there shall have been no occurrence
which, individually or in the aggregate, as of the date on which such Loan
is to be made, would reasonably be expected to have a Materially Adverse
Effect.
SECTION 5.2.2 Loan Request. The Agent shall have received a Loan Request
------------
for such Borrowing.
ARTICLE VI
WARRANTIES
In order to induce the Agent and each Bank to enter into this Agreement and
to induce each Bank to make Loans hereunder, the Borrower represents and
warrants as follows:
SECTION 6.1 Organization, Power, Authority. Each Loan Party is a
-----------------------------
corporation validly organized and existing and in good standing under the laws
of the state of its incorporation, is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction where the nature of its
business makes such qualification necessary and where the failure to so qualify
would reasonably be expected to have a Materially Adverse Effect and has full
power and authority to own and hold under lease its property and conduct its
business substantially as presently conducted by it. Each Loan Party has full
power and authority to enter into and to perform its obligations under this
Agreement and each Loan Document to which each is a party and to obtain the
Loans hereunder, in the case of the Borrower.
22
SECTION 6.2 Due Authorization. The execution and delivery by each Loan
-----------------
Party of this Agreement and each Loan Document executed by it and the
performance by each of its respective obligations hereunder and thereunder and
the borrowings hereunder by the Borrower have been duly authorized by all
necessary corporate action, do not require any Approval, do not and will not
conflict with, result in any violation of, or constitute any default under, any
provision of any Organic Document or material Contractual Obligation of such
Loan Party (or any other material Contractual Obligation) or any present law or
governmental regulation or court decree or order applicable to any Loan Party
and will not result in or require the creation or imposition of any Lien in any
of their respective properties pursuant to the provisions of any Contractual
Obligation.
SECTION 6.3 Validity. This Agreement is, and each Loan Document executed by
--------
any Loan Party will on the due execution and delivery thereof be, the legal,
valid and binding obligation of such Loan Party enforceable in accordance with
its terms, subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in effect affecting
the enforceability of the rights of creditors generally, and by general
equitable principles.
SECTION 6.4 Financial Information. All balance sheets, statements of
---------------------
operations, of total owners' equity and of changes in cash flows and other
financial information of the Borrower and the Consolidated Subsidiaries which
have been or shall hereafter be furnished by or on behalf of the Borrower for
the purposes of or in connection with this Agreement or any transaction
contemplated hereby pursuant to Section 7.1.1(a) or Section 7.1.1(b) (except
--------------- ---------------
Section 7.1.1(a)(iii)) have been or will be prepared in accordance with GAAP
--------------------
consistently applied throughout the periods involved (except as disclosed
therein), and, in the case of information relating to coal reserves, have been
or will be prepared in accordance with all relevant rules and regulations
promulgated by the SEC, as in effect on the Effective Date, and do or will
present fairly the consolidated financial condition of the corporations covered
thereby as at the dates thereof and the results of their operations for the
periods then ended and the consolidated statements of earnings, of operations
and of total owners' equity, for each of the fiscal periods then ended, of the
Borrower and the Consolidated Subsidiaries (or, in the case of any such balance
sheets or statements prepared prior to the date hereof, of the Borrower and its
Consolidated Subsidiaries). Since June 30, 2000, there has been no occurrence
which, individually or in the aggregate, would reasonably be expected to have a
Materially Adverse Effect. Except as disclosed in Item 6.6 ("Litigation") of the
--------
Disclosure Schedule, neither the Borrower nor the Consolidated Subsidiaries have
any material contingent liabilities (including any liability pursuant to the
Federal Black Lung Benefits Act of 1972, as in effect from time to time) not
provided for or disclosed in the financial statements of the Borrower and the
Consolidated Subsidiaries most recently delivered by or on behalf of the
Borrower to the Banks.
SECTION 6.5 Absence of Certain Default. Neither the Borrower nor any
--------------------------
Subsidiary is in default,
(a) in the payment of (or in the performance of any material
obligation applicable to) any Indebtedness outstanding in a principal
amount exceeding $10,000,000 in the aggregate; or
(b) under any law or governmental regulation or court decree or order
which would reasonably be expected to have a Materially Adverse Effect.
SECTION 6.6 Litigation. Except as described in Item 6.6 ("Litigation") of
---------- --------
the Disclosure Schedule, no litigation, arbitration or governmental
investigation or proceeding against the Borrower or any Subsidiary or to which
any of the properties of any thereof is subject is pending or, to the knowledge
of the Borrower, threatened which would reasonably be expected to result in a
liability in excess of $10,000,000.
SECTION 6.7 Regulation U. Neither the Borrower nor any Subsidiary is
------------
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock, and
less than 25% of the assets of each consists of margin stock. Proceeds of Loans
hereunder will be used in compliance with Regulation U of the F.R.S. Board or
any regulations substituted therefore. Terms for which meanings are provided in
Regulation U of the F.R.S. Board or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.
23
SECTION 6.8 Government Regulation. Neither the Borrower nor any Subsidiary
---------------------
is an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION 6.9 Certain Contractual Obligations or Organic Documents. Neither
----------------------------------------------------
the Borrower nor any Subsidiary is a party or subject to any Contractual
Obligation or Organic Document which would reasonably be expected to have a
Materially Adverse Effect.
SECTION 6.10 Taxes. The Borrower and all Subsidiaries have filed all tax
----
returns and reports required by law to have been filed by them and have paid all
taxes and governmental charges thereby shown to be owing, except any such taxes
or charges which are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on their books.
SECTION 6.11 Pension and Welfare Plans; Multiemployer Plans. During the
----------------------------------------------
twelve-consecutive-month period prior to the Effective Date and prior to the
date of any Borrowing hereunder, (a) no steps have been taken to terminate any
Pension Plan the assets of which are insufficient to satisfy all benefit
liabilities thereunder (as defined in section 4001(a)(16) of ERISA) for which
the Borrower or any Subsidiary could be held liable, (b) no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA and (c) none of the Borrower, any Subsidiary or
any member of the Controlled Group of any of them has incurred or is reasonably
likely to incur any Withdrawl Liability to any Multiemployer Plan. No condition
exists or event or transaction has occurred with respect to any Pension Plan
which might result in the incurrence by the Borrower or any Subsidiary of any
material liability, fine or penalty. Neither the Borrower nor any Subsidiary has
any contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part 6
of Subtitle B of Title I of ERISA.
SECTION 6.12 Subsidiaries and Significant Subsidiaries. The Borrower has no
-----------------------------------------
other Subsidiaries or Significant Subsidiaries except those identified in Item
----
6.12 ("Existing Subsidiaries and Significant Subsidiaries") of the Disclosure
---
Schedule or those acquired or created subsequent to the date hereof.
SECTION 6.13 Patents, Trademarks. The Borrower and each Subsidiary owns and
-------------------
possesses all such patents, patent rights, trademarks, trademark rights, trade
names, trade name rights, service marks, service xxxx rights and copyrights as
the Borrower considers necessary for the conduct of the businesses of the
Borrower or such Subsidiary as now conducted without any infringement upon
rights of others which would reasonably be expected to have a Materially Adverse
Effect. There is no individual patent or patent license used by the Borrower or
any Subsidiary in the conduct of its business the loss of which would reasonably
be expected to have a Materially Adverse Effect.
SECTION 6.14 Ownership of Properties; Liens. The Borrower and each
------------------------------
Subsidiary has good and marketable title to or good leasehold interests in all
of its material properties and assets, real and personal, of any nature
whatsoever, free and clear of all Liens except as permitted pursuant to Section
-------
7.2.2.
-----
SECTION 6.15 Accuracy of Information. All factual information heretofore or
-----------------------
contemporaneously furnished by the Borrower to the Agent or the Banks in
connection with execution and delivery of this Agreement and the various
transactions contemplated hereby, as supplemented from time to time and when
taken as a whole, to the best of the Borrower's knowledge, has been, and all
other such factual information hereafter furnished by the Borrower or any
Subsidiary, as supplemented from time to time and when taken as a whole, will
be, true and accurate in every material respect on the date as of which such
information is dated or certified and as of the Effective Date and not
incomplete by omitting to state any material fact necessary to make such
information not misleading. All projections and pro forma financial information
contained in any materials furnished by the Borrower or any Subsidiary to the
Bank are based on good faith estimates and assumptions by the management of the
Borrower or the applicable Subsidiary, it being recognized by the Bank, however,
that projections and statements as to future events are not to be viewed as fact
and that actual
24
results during the period or periods covered by any such projections or
statements may differ from the projected results and that the differences may be
material.
SECTION 6.16 Environmental Warranties.
------------------------
(a) No facility or property (including underlying groundwater) owned
or leased by the Borrower or any Significant Subsidiary is out of
compliance with any Environmental Law to the extent that such
noncompliance, either singly or in the aggregate, has or could reasonably
be expected to have a Materially Adverse Effect;
(b) There are no pending or threatened
(i) claims, complaints, notices or requests for information
received by the Borrower or any Significant Subsidiary with respect to
any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the Borrower or any
Significant Subsidiary regarding potential liability under any
Environmental Law,
in each case, which singly, or in the aggregate, have or could reasonably be
expected to have a Materially Adverse Effect;
(c) There have been no Releases of Hazardous Materials at, on or under any
property now or previously owned or leased by the Borrower or any Significant
Subsidiary that, singly or in the aggregate, have, or could reasonably be
expected to have, a Materially Adverse Effect;
(d) The Borrower and the Significant Subsidiaries have been issued and are
in material compliance with all material permits, certificates, approvals,
licenses and other authorizations relating to environmental matters and
necessary or desirable for their businesses;
(e) No property now or previously owned or leased by the Borrower or any
Significant Subsidiary is listed or proposed for listing (with respect to owned
property only) (i) on the CERCLIS or on any similar state list of sites
requiring investigation or clean-up to the extent that such listing relates to
liabilities, individually or in the aggregate, that could reasonably be expected
to have a Materially Adverse Effect, or (ii) on the National Priorities List
pursuant to CERCLA;
(f) There are no underground storage tanks, active or abandoned, including
petroleum storage tanks, on or under any property now or previously owned or
leased by the Borrower or any Significant Subsidiary that, singly or in the
aggregate, have, or could reasonably be expected to have, a Materially Adverse
Effect;
(g) Neither the Borrower nor any Significant Subsidiary has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list
or which is the subject of federal, state or local enforcement actions or other
investigations which may lead to material claims against the Borrower or such
Significant Subsidiary for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA that, either singly or in the
aggregate, have, or could reasonably be expected to have, a Materially Adverse
Effect;
(h) There are no polychlorinated biphenyls or friable asbestos present at
any property now or previously owned or leased by the Borrower or any
Significant Subsidiary that, singly or in the aggregate, have, or could
reasonably be expected to have, a Materially Adverse Effect;
(i) No conditions exist at, on or under any property now or previously
owned or leased by the Borrower or any Significant Subsidiary which, with the
passage of time, or the giving of notice
25
or both, would give rise to liability under any Environmental Law that, either
singly or in the aggregate, have, or could reasonably be expected to have, a
Materially Adverse Effect; and
(j) Neither the Borrower nor any Subsidiary owns or leases any "industrial
establishment" (as such term is defined in the New Jersey Environmental Cleanup
Responsibility Act, N.J.S.A. 13:1K-6, et seq.) in the State of New Jersey.
-- ---
SECTION 6.17 Borrower's Solvency. As of the date of this Agreement, the
-------------------
Borrower is and will be Solvent. As used in this Section, "Solvent" means the
Borrower is able to pay its debts as they become due in the usual course of
business.
SECTION 6.18 Pari Passu. Any Loan hereunder will be pari passu with all of
----------
Borrower's other Indebtedness for Borrowed Money.
ARTICLE VII
COVENANTS
SECTION 7.1 Certain Affirmative Covenants. The Borrower agrees that, until
-----------------------------
the Commitments shall have terminated and all of the Liabilities have been paid
and performed in full, the Borrower will perform the obligations set forth in
this Section 7.1.
-----------
SECTION 7.1.1 Financial Information. The Borrower will furnish, or will
---------------------
cause to be furnished, to the Agent (in sufficient copies for each Bank) the
following financial statements, reports and information:
(a) promptly when available and in any event within 90 days after the
close of each Fiscal Year
(i) a balance sheet at the close of such Fiscal Year, and
statements of operations, of Total Owners' Equity and of cash flows
for such Fiscal Year, of the Borrower and the Consolidated
Subsidiaries certified without Impermissible Qualification by
independent public accountants of recognized standing selected by the
Borrower and reasonably acceptable to the Bank,
(ii) a letter report of such accountants at the close of such
Fiscal Year to the effect that they have reviewed the provisions of
this Agreement and are not aware of any Default hereunder (insofar as
any Default may relate to accounting matters) continuing at the end of
such Fiscal Year, except such Default, if any, as may be disclosed in
such statement,
(iii) a certificate of an Authorized Officer of the Borrower that
no Default has occurred and is continuing, or specifying any such
Default and the actions, if any, being taken by the Borrower with
respect thereto, and
(iv) a notice that the Borrower is in compliance with the
requirements as stated under Section 7.2.12 Funded Debt Ratio, setting
forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 7.2.12; and
--------------
(b) promptly when available and in any event within 45 days after the
close of each of the first three Fiscal Quarters of each Fiscal Year
(i) a balance sheet at the close of such Fiscal Quarter and
statements of operations, of total owners' equity and of changes in
cash flows for the period commencing at the close of the previous
Fiscal Year and ending with the close of such Fiscal Quarter, of the
Borrower and the Consolidated Subsidiaries;
26
(ii) a notice that the Borrower is in compliance with the
requirements as stated under Section 7.2.12 Funded Debt Ratio, setting
forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 7.2.12; and
--------------
(iii) a certificate of an Authorized Officer of the Borrower that
no Default has occurred and is continuing, or specifying any such
Default and the actions, if any, being taken by the Borrower with
respect thereto,
(c) promptly upon the incorporation or acquisition thereof,
information regarding the creation or acquisition of any new Significant
Subsidiary;
(d) promptly after the sending or filing thereof, copies of all
quarterly and annual reports and proxy solicitations that the Borrower
sends to any of its securityholders, and copies of all reports on Form 8-K
that the Borrower files with the Securities and Exchange Commission (other
than reports on Form 8-K filed solely for the purpose of incorporating
exhibits into a registration statement previously filed with the Securities
and Exchange Commission);
(e) such other information with respect to the financial condition,
business, property, assets, revenues, and operations of the Borrower and
the Subsidiaries as the Bank may from time to time reasonably request.
Reports required to be delivered pursuant to clauses (a)(i), (b)(i)
and (d) above shall be deemed to have been delivered on the date on which
such report is posted on the SEC's website at xxx.xxx.xxx, and such posting
-----------
shall be deemed to satisfy the reporting requirements of clauses (a)(i),
(b)(i) and (d) above; provided that in every instance the Borrower shall
provide paper copies of the certificate required by clauses (a)(iii),
-------
(a)(iv) and (b)(iii) above to the Agent and each of the Banks until such
time as the Agent shall provide the Borrower written notice otherwise.
SECTION 7.1.2 Maintenance of Corporate Existences. Except as permitted by
-----------------------------------
Section 7.2.3, the Borrower will cause to be done at all times all things
-------------
necessary to maintain and preserve the corporate existences of the Borrower and
each Significant Subsidiary, and to comply in all material respects with all
applicable laws, rules, regulations and orders. Except as permitted by Section
-------
7.2.3, the Borrower will continue to own and hold directly or indirectly, free
-----
and clear of all Liens (except as permitted by Section 7.2.2), all of the
--------------
outstanding ownership interest of each Subsidiary now owned or hereafter
acquired.
SECTION 7.1.3 Foreign Qualification. The Borrower will, and will cause each
---------------------
Subsidiary to, cause to be done at all times all things necessary to be duly
qualified to do business and in good standing as a foreign corporation in each
jurisdiction where the nature of its business makes such qualification necessary
and where the failure to so qualify would reasonably be expected to have a
Materially Adverse Effect, and to comply in all material respects with all
applicable laws, rules, regulations and orders.
SECTION 7.1.4 Payment of Taxes. The Borrower will, and will cause each
----------------
Subsidiary to, pay and discharge, prior to becoming delinquent, all federal,
state and local taxes, assessments and other governmental charges or levies
against or on any of its property, as well as claims of any kind which, if
unpaid, might become a Lien in a material amount upon any of its properties;
provided, however, that the foregoing shall not require the Borrower or any
-------- -------
Subsidiary to pay or discharge any such tax, assessment, charge, levy or other
Lien so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves in
accordance with GAAP with respect thereto.
SECTION 7.1.5 Insurance. The Borrower will, and will cause each Subsidiary
---------
to, maintain or cause to be maintained through self-insurance and with
responsible insurance companies insurance with respect to its properties and
business against such casualties and contingencies and of such types and in such
amounts as has been historically maintained by the Borrower and the
Subsidiaries, or which is consistent with sound business practice in the
reasonable opinion of the Borrower, and will, upon request of any Bank through
the Agent, furnish to the Agent at reasonable intervals a certificate of an
Authorized Officer setting forth the
27
nature and extent of all insurance maintained by the Borrower and the
Subsidiaries in accordance with this Section.
SECTION 7.1.6 Notice of Default, Litigation. The Borrower will give prompt
-----------------
notice (with a description in reasonable detail) to the Agent (in sufficient
copies for each Bank) of:
(a) the occurrence of any Default or any Event of Default;
(b) the occurrence of any litigation, arbitration or governmental
investigation or proceeding not previously disclosed by the Borrower to the
Agent which has been instituted or, to the knowledge of the Borrower, is
threatened against the Borrower or any Subsidiary or to which any of their
respective properties is subject which would reasonably be expected to
result in a liability to the Borrower or any Subsidiary not covered by the
Borrower's or such Subsidiary's insurers, as applicable, in excess of
$10,000,000;
(c) any material development which shall occur in any litigation,
arbitration or governmental investigation or proceeding previously
disclosed by the Borrower to the Agent;
(d) the occurrence of any event which would reasonably be expected to
have a Materially Adverse Effect;
(e) the occurrence of (i) a Reportable Event with respect to any
Pension Plan; (ii) the institution of steps by the Borrower or any
Subsidiary or any member of the Controlled Group of any of them to
terminate, any Pension Plan where the unfunded liability is in excess of
$10,000,000; or (iii) a partial or complete withdrawal (as described in
ERISA section 4203 or 4205) by the Borrower or any Subsidiary or any member
of the Controlled Group of any of them from a Multiemployer Plan where the
unfunded liability is in excess of $10,000,000; and
(f) the occurrence of (i) the institution of any steps by the PBGC to
terminate any Pension Plan; (ii) the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give rise
to a Lien under section 302(f) of ERISA; (iii) the adoption of an amendment
or the application for a funding waiver that could result in a requirement
that the Borrower or any Subsidiary furnish a bond or other security to the
PBGC or to a Pension Plan pursuant to sections 306 or 307 of ERISA; (iv)
the assertion of any claim with respect to any Pension Plan which could, if
determined adversely, result in the incurrence by the Borrower or any
Subsidiary of any material liability, fine or penalty; or (v) any material
increase in the contingent liability of the Borrower or any Subsidiary with
respect to post-retirement benefits under any Welfare Plan, as determined
under Financial Accounting Standards Board No. 106.
SECTION 7.1.7 Performance of Loan Documents. The Borrower will, and will
-----------------------------
cause each Loan Party to, perform promptly and faithfully all of its obligations
under each Loan Document executed by it.
SECTION 7.1.8 Books and Records. The Borrower will, and will cause each
-----------------
Subsidiary to, keep books and records reflecting all of its business affairs and
transactions in accordance with GAAP and permit the Bank or any of its
representatives, at reasonable times and intervals and as arranged through the
Treasurer or chief legal officer of the Borrower, to visit all of its offices,
discuss its financial matters with its officers and independent accountants,
examine and photocopy extracts from (a) any of its financial books and records
and (b) any of its other corporate records other than such corporate records
that are reasonably determined by the Borrower to be proprietary.
SECTION 7.1.9 Significant Subsidiary Guaranty. The Borrower agrees to
-------------------------------
promptly notify the Agent each time a Subsidiary becomes a Significant
Subsidiary and to cause such Significant Subsidiary to deliver to the Agent a
duly executed Significant Subsidiary Guaranty along with an opinion of counsel
and a certificate of the type required by Section 5.1.1(b) both in form and
----------------
substance acceptable to the Agent.
28
SECTION 7.1.10 Environmental Covenant. The Borrower will, and will cause
----------------------
each Significant Subsidiary to,
(a) use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with
all applicable Environmental Laws;
(b) immediately notify the Agent and provide copies upon receipt of
all material written claims, complaints, notices or inquiries relating to
the condition of its facilities and properties or compliance with
Environmental Laws, in each case which involve or could reasonably be
expected to involve obligations of the Borrower or any Significant
Subsidiary, as the case may be, in excess of $10,000,000; and
(c) provide such information and certifications which any Bank through
the Agent may reasonably request from time to time to evidence compliance
with this Section 7.1.10.
--------------
SECTION 7.2 Certain Negative Covenants. The Borrower agrees that, until the
--------------------------
Commitments shall have terminated and all of the Liabilities have been paid and
performed in full:
SECTION 7.2.1 Indebtedness for Borrowed Money. The Borrower will not permit
-------------------------------
any Subsidiary to incur or permit to exist any Indebtedness for Borrowed Money,
except (i) Indebtedness for Borrowed Money of any Significant Subsidiary to the
Borrower or any Subsidiary which is subordinated to such Significant
Subsidiary's obligations under the Significant Subsidiary Guaranty pursuant to a
Subordination Agreement; (ii) Indebtedness for Borrowed Money of any Subsidiary
(other than a Significant Subsidiary) to any other Subsidiary or to the Borrower
(iii) Indebtedness for Borrowed Money outstanding on the date hereof and listed
in Item 7.2.1(iii) of the Disclosure Schedule and refinancings thereof; provided
--------------- --------
that such Indebtedness for Borrowed Money is not increased as the result of such
refinancing; (iv) additional unsecured Indebtedness for Borrowed Money of all
Subsidiaries (other than Significant Subsidiaries) not to exceed $25,000,000 in
the aggregate at any one time outstanding; and (v) additional unsecured
Indebtedness for Borrowed Money of any Subsidiary acquired with such
indebtedness existing at the time of acquisition/merger of such Subsidiary.
SECTION 7.2.2 Liens. The Borrower will not, and will not permit any
-----
Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its
property or assets, whether now owned or hereafter acquired, except:
(a) Liens in favor of the Agent for the benefit of the Banks;
(b) Liens which were granted prior to the date hereof in (and only in)
assets identified in Item 7.2.1(iii) ("Ongoing Indebtedness") and Item
--------------- ----
7.2.2(b) ("Liens") of the Disclosure Schedule;
--------
(c) Liens in (and only in) stock or assets permitted to be acquired
under the terms of this Agreement granted to secure Indebtedness incurred
at the time of such acquisition (or within one year thereof) to finance the
acquisition of such stock or assets; provided, that the amount of
--------
Indebtedness secured thereby is not increased;
(d) statutory and common law banker's Liens and rights of setoff on
bank deposits;
(e) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being contested in good faith by appropriate
29
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
(g) Liens incurred or existing in the ordinary course of business,
consistent with past practice and not to secure Indebtedness for Borrowed
Money, such as in connection with workers' compensation, unemployment
insurance or other forms of governmental insurance or benefits, or to
secure performance of tenders, statutory obligations, leases and contracts
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(h) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance;
(i) Liens existing on any assets at the date of acquisition of such
assets permitted to be acquired under the terms of this Agreement acquired
after the date of this Agreement;
(j) Liens granted to secure Indebtedness incurred to refinance any
Indebtedness secured by Liens permitted by clauses (b), (c) and (i) of this
Section 7.2.2; provided, that such Indebtedness is not increased as the
------------- --------
result of such refinancing and that such Liens attach only to the same
assets subject to Lien prior to the refinancing.
SECTION 7.2.3 Consolidation, Merger. The Borrower will not, and will not
---------------------
permit any Subsidiary to, consolidate with or merge into or with any other
corporation, or sell, transfer, lease or sell and lease back or otherwise
dispose of all or substantially all of its assets to any Person, without prior
written consent of the Bank, except for (i) the voluntary liquidation or
dissolution of any wholly-owned Subsidiary into another Subsidiary or into the
Borrower, the merger of any Person with a Subsidiary, provided that after giving
--------
effect to such merger, such Subsidiary remains a "Subsidiary" as defined herein,
or the merger of any Subsidiary into another Subsidiary or into the Borrower
provided that in the case of any such merger into the Borrower, the Borrower is
--------
the surviving corporation and (ii) the sale, transfer, lease or sale and lease
back or other disposition of all or substantially all of the assets of one or
more Subsidiaries not to exceed in any calendar year an aggregate total of 10%
of the consolidated assets of the Borrower and the Consolidated Subsidiaries.
SECTION 7.2.4 Transactions with Affiliates. The Borrower will not, and will
----------------------------
not permit any Significant Subsidiary to, enter into, or cause, suffer or permit
to exist any transaction, arrangement or contract with any of its Affiliates
(except for Significant Subsidiaries) which would not be entered into by a
prudent Person in the position of the Borrower or such Subsidiary, or which is
on terms which are not on an arms-length basis.
SECTION 7.2.5 Sale or Discount of Receivables. The Borrower will not, and
-------------------------------
will not permit any Subsidiary to, directly or indirectly, sell with recourse
any of its notes or accounts receivable in excess of $200,000,000 in the
aggregate at any one time, other than those arising from the export outside of
the United States of goods or services.
SECTION 7.2.6 Dividends. The Borrower shall not pay any dividends to its
---------
respective shareholders upon the occurrence, or during the continuance of, any
Default. No dividend shall be paid by Borrower other than in accordance with all
applicable provisions of law including, without limitation, the Delaware General
Corporation Law, as amended.
SECTION 7.2.7 Inconsistent Agreements. The Borrower will not, and will not
-----------------------
permit any Subsidiary to, enter into any agreement containing any provision
which would be violated or breached by any borrowing by the Borrower made
hereunder or by the performance by the Borrower or any other Loan Party of their
respective obligations hereunder or under any Loan Document.
SECTION 7.2.8 Loans, Advances and Investments. The Borrower will not, and
-------------------------------
will not permit any Subsidiary to, make or permit to remain outstanding any loan
or advance to, or own, purchase or acquire any
30
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any Person, except:
(i) advances or extensions of credit on terms customary in the
industry involved in the form of accounts or other receivables incurred,
and investments, loans and advances made in settlement of such accounts
receivable, all in the ordinary course of business;
(ii) Permitted Investments;
(iii) investments, loans or advances to or in the Borrower or in any
Subsidiary;
(iv) loans or advances to employees of the Borrower or any Subsidiary
in the ordinary course of their respective businesses, consistent with past
practices, not to exceed $1,000,000 in aggregate amount at any time
outstanding;
(v) investments customarily used in the management of employee benefit
trust funds; and
(vi) other investments, loans or advances not exceeding $100,000,000
in the aggregate at any time outstanding.
SECTION 7.2.9 Guaranties. Except as described in Item 7.2.9 ("Guaranties")
---------- ----------
of the Disclosure Schedule, neither the Borrower nor any Subsidiary will enter
into any Guaranty prior to the Commitment Termination Date, except for
(a) Guaranties relating to operating and capital leases on which the
Borrower or such Subsidiary is lessee;
(b) any Significant Subsidiary Guaranty;
(c) Guaranties (other than Guaranties described in clause (b) of this
----------
Section 7.2.9 and Guaranties described in Item 7.2.9 of the Disclosure
------------- ----------
Schedule) not to exceed $25,000,000 in aggregate amount at any time
outstanding of Indebtedness for Borrowed Money;
(d) contingent obligations arising or existing as the result of the
sale or other disposition of assets;
(e) Guaranties by the Borrower of any Indebtedness for Borrowed Money
of any Subsidiary permitted under Section 7.2.1;
-------------
(f) Guaranties by the Borrower not to exceed $75,000,000 in aggregate
amount at any time outstanding of any obligations of any Person other than
any Subsidiary or any of its Affiliates; and
(g) Guarantees by the Borrower or any Subsidiary of any obligation of
the Borrower, any Subsidiary or other Guarantor incurred or existing in the
ordinary course of business, consistent with past practice and not to
secure indebtedness for Borrowed Money other than Commercial Paper
Indebtedness, such as in connection with workers' compensation,
unemployment insurance or other forms of governmental insurance or
benefits, or to secure performance of tenders, statutory obligations,
leases and contracts entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds.
(h) Guarantees relating to Commercial Paper Indebtedness.
SECTION 7.2.10 Securities. The Borrower will not, and will not permit any
----------
Subsidiary to, make any distributions, redemptions, prepayments, defeasances or
repurchases of its securities upon the occurrence or
31
during the continuance of any Default. The Borrower will not permit any
Significant Subsidiary to issue any capital stock to any Person other than any
other Significant Subsidiary or the Borrower.
SECTION 7.2.11 Business Activities. The Borrower will not, and will not
-------------------
permit any Significant Subsidiary to:
(a) operate its business other than in the ordinary and usual course;
and
(b) engage in any type of business except the businesses of the type
or substantially related to the type so operated by the Borrower or such
Significant Subsidiary on the Effective Date.
SECTION 7.2.12 Funded Debt Ratio. The Borrower shall maintain a ratio of
-----------------
the Borrower's total Indebtedness for Borrowed Money as at the last day of each
calendar quarter to total earnings for the last four consecutive complete
calendar quarters (before interest, taxes, depreciation and amortization and
excluding any extraordinary gains or losses) of not more than 2.5:1.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. The term "Event of Default" shall mean each
----------------- ----------------
of the following events:
SECTION 8.1.1 Non-Payment of Liabilities. The Borrower shall default in the
--------------------------
payment or prepayment when due, whether at stated maturity, by acceleration, or
otherwise, of any principal of any Loan, or the Borrower shall default (and such
default shall continue unremedied for a period of three days) in the payment
when due, whether at stated maturity, by acceleration, or otherwise, of interest
on any Loan, of any fee or of any other Liability.
SECTION 8.1.2 Non-Performance of Certain Covenants. The Borrower shall
------------------------------------
default in the due performance and observance of any of its obligations under
Section 7.1 of this Agreement and such default shall continue unremedied for 10
----------
days after notice thereof shall have been given to the Borrower by the Agent or
any Bank or the Borrower shall default in the due performance and observance
(unless such default is capable of remedy and is remedied to the satisfaction of
the Required Banks within 10 days of such default) of any of its obligations
under Section 7.2 of this Agreement.
SECTION 8.1.3 Certain Defaults on Other Indebtedness for Borrowed Money.
---------------------------------------------------------
Any default shall occur under the terms applicable to any Indebtedness for
Borrowed Money outstanding in a principal amount exceeding individually or in
the aggregate $25,000,000 of the Borrower or any Significant Subsidiary
representing any borrowing or financing or arising under any other lease or
material agreement, and such default shall:
(a) consist of the failure to pay Indebtedness for Borrowed Money at
the maturity thereof; or
(b) continue without being cured or waived (so long as such cure or
waiver did not involve any payment of principal of such Indebtedness for
Borrowed Money) for a period of time sufficient to permit acceleration of
Indebtedness for Borrowed Money.
SECTION 8.1.4 Bankruptcy, Insolvency. The Borrower or any Significant
----------------------
Subsidiary shall become insolvent or generally fail to pay, or admit in writing
its inability to pay, debts as they become due; or the Borrower or any
Significant Subsidiary shall apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other custodian for the
Borrower or such Significant Subsidiary or any property of any thereof, or make
a general assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver, sequestrator or other
custodian shall be appointed for
32
the Borrower or any Significant Subsidiary or for a substantial part of the
property of any thereof and not be discharged within 60 days; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, shall be commenced in respect of the Borrower or any Significant
Subsidiary, and, if such case or proceeding is not commenced by the Borrower or
such Significant Subsidiary, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such Significant Subsidiary or shall result in
the entry of an order for relief or shall remain for 60 days undismissed; or the
Borrower or any Significant Subsidiary shall take any corporate action to
authorize, or in furtherance of, any of the foregoing.
SECTION 8.1.5 Control of the Borrower. Any Change in Control shall occur on
-----------------------
or after the Effective Date.
SECTION 8.1.6 Non-Performance of Other Obligations. Any Loan Party shall
------------------------------------
default in the due performance and observance of any other agreement, applicable
to it, contained in this Agreement or in any other Loan Document, and such
default shall continue unremedied for a period of 30 days after notice thereof
shall have been given to the Borrower by the Agent or any Bank.
SECTION 8.1.7 Breach of Representation or Warranty. Any representation or
------------------------------------
warranty of any Loan Party in any Loan Document or in any writing furnished
after the date of this Agreement by or on behalf of any Loan Party for the
purposes of or in connection with this Agreement is or shall be incorrect in any
material respect when made or deemed made.
SECTION 8.1.8 Pension Plans. Any of the following events shall occur with
-------------
respect to any Pension Plan
(a) the institution of any steps by the Borrower, any Subsidiary, any
member of the Controlled Group of any of them or any other Person to
terminate a Pension Plan if, as a result of such termination, the Borrower
or any such member could be required to make a contribution to such Pension
Plan, or could reasonably expect to incur a liability or obligation, in
excess of $25,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 8.1.9 Judgments. A final judgment to the extent not covered by
---------
insurance that, with other such outstanding final judgments against the Borrower
and the Subsidiaries exceeds an aggregate of $10,000,000 shall be rendered
against the Borrower or any Subsidiary and if, within 60 days after entry
thereof, such judgment shall not have been discharged or otherwise satisfied or
execution thereof stayed pending appeal, or if, within 60 days after the
expiration of any such stay, such judgment shall not have been discharged or
otherwise satisfied.
SECTION 8.1.10 Significant Subsidiary Guaranty and Subordination Agreement.
-----------------------------------------------------------
The Significant Subsidiary Guaranty or any Subordination Agreement shall cease
to be in full force and effect or any Loan Party or any Person by, through or on
behalf of any Loan Party shall contest in any manner in writing the validity,
binding nature or enforceability of either the Significant Subsidiary Guaranty
or any Subordination Agreement.
SECTION 8.1.11 Multiemployer Plans. The Borrower, any Subsidiary or any
-------------------
member of the Controlled Group of any of them shall incur, or shall be
reasonably likely to incur liability in excess of $10,000,000 in the aggregate
as a result of one or more of the following: (i) the partial or complete
withdrawal of the Borrower, any Subsidiary or any member of the Controlled Group
of any of them from a Multiemployer Plan; or (ii) the reorganization or
termination of a Multiemployer Plan.
SECTION 8.2 Action if Bankruptcy. If any Event of Default described in
--------------------
Section 8.1.4 shall occur with respect to the Borrower, the Commitment shall
-------------
automatically terminate, and the outstanding principal
33
amount of all outstanding Loans and all other Liabilities shall be and become
immediately due and payable, without notice or demand.
SECTION 8.3 Action if Other Event of Default. If any Event of Default
--------------------------------
(other than an Event of Default described in Section 8.1.4 with respect to the
-------------
Borrower) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Agent shall at the request, or may with the consent of the
Required Banks, without notice or demand, terminate the Commitments and declare
the outstanding principal amount of the Loans to be due and payable and all
other Liabilities to be due and payable, whereupon the full unpaid amount of
such Loans and all other Liabilities shall be and become immediately due and
payable, without further demand presentment, protest or notice of any kind, all
of which are hereby expressly waived by the Borrower.
ARTICLE IX
THE AGENT
SECTION 9.1. Authorization and Action. Each Bank hereby appoints and
------------------------
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks or, if required by Section 10.1, all Banks, and such
------------
instructions shall be binding upon all Banks and all holders of Notes; provided,
--------
however, that the Agent shall not be required to take any action that exposes
-------
the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Bank (x) prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement and
(y) copies of each certificate delivered by the Borrower in accordance with
Section 7.1.1.
-------------
SECTION 9.2. Agent's Reliance, Etc. Neither the Agent nor any of its
---------------------
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 this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the Bank
that made any Loan as the holder of the Debt resulting therefrom until the Agent
receives and accepts an Assumption Agreement entered into by an Assuming Bank as
provided in Section 2.5 or an Assignment and Acceptance entered into by such
Bank, as assignor, and an Eligible Assignee, as assignee, as provided in Section
10.11; (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) makes
no warranty or representation to any Bank and shall not be responsible to any
Bank for any statements, warranties or representations (whether written or oral)
made in or in connection with this Agreement; (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 this Agreement 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 Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 9.3. Citibank and Affiliates. With respect to its Commitment, the
-----------------------
Loans made by it and the Note issued to it, Citibank shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include Citibank in its individual capacity.
Citibank and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries
34
and any Person who may do business with or own securities of the Borrower or any
such Subsidiary, all as if Citibank were not the Agent and without any duty to
account therefor to the Banks.
SECTION 9.4. Bank Credit Decision. Each Bank acknowledges that it has,
--------------------
independently and without reliance upon the Agent or any other Bank and based on
the financial statements referred to in Section 6.4 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank 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 9.5. Indemnification. The Banks agree to indemnify the Agent (to
---------------
the extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Loans then owed to each of them (or if no Loans are at
the time outstanding, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Bank shall be liable
----------------- --------
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 9.5
applies whether any such investigation, litigation or proceeding is brought by
the Agent, any Bank or a third party.
SECTION 9.6. Successor Agent. The Agent may resign at any time by
---------------
giving written notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Agent with the consent, so long as no Default has occurred and is
continuing, of the Borrower, which consent shall not be unreasonably withheld or
delayed. If no successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Banks' removal
of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation or removal hereunder as Agent, the provisions
of this Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 9.7. Other Agents. Each Bank hereby acknowledges that neither
------------
the documentation agent nor any other Bank designated as any "Agent" on the
signature pages hereof has any liability hereunder other than in its capacity as
a Bank.
ARTICLE X
MISCELLANEOUS
35
SECTION 10.1 Waivers, Amendments. The provisions of this Agreement and of
-------------------
each Loan Document may from time to time be amended, modified, or waived, if
such amendment, modification or waiver is in writing and consented to by the
Borrower and the Required Banks; provided, however, that no amendment, waiver or
-------- -------
consent shall, unless in writing and signed by all the Banks, do any of the
following: (a) waive any of the conditions specified in Section 5.1, (b)
increase the Commitments of the Banks or subject the Banks to any additional
obligations, (c) reduce the principal of, or interest on, the Loans or any fees
or other amounts payable hereunder, (d) postpone any date fixed for any payment
of principal of, or interest on, the Loans or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans, or the number of Banks, that shall be
required for the Banks or any of them to take any action hereunder, (f) release
any Significant Subsidiary from its obligations under the Significant Subsidiary
Guaranty, (g) release any Person from its obligations under the Subordination
Agreement or (h) amend this Section 10.1; and provided further that no
-------- -------
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note.
No failure or delay on the part of the Banks or the holder of any Note in
exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Borrower in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Banks, or the holder of any Note
under this Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 10.2 Notices All notices and other communications provided for
-------
hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Borrower, at its address at CONSOL Plaza, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000, Attention: Treasury (Fax No. 000 000-0000); if to any
Initial Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Bank, at its Domestic Lending Office
specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Bank; and if to the Agent, at its address at Xxx Xxxxx Xxx,
Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; or, as
to the Borrower or the Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrower and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to the Agent
pursuant to Article II, III, IV, V or IX shall not be effective until received
by the Agent. Delivery by telecopier of an executed counterpart of any amendment
or waiver of any provision of this Agreement or the Notes or of any Exhibit
hereto to be executed and delivered hereunder shall be effective as delivery of
a manually executed counterpart thereof.
SECTION 10.3 Costs and Expenses. The Borrower agrees to pay on demand all
------------------
costs and expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the
Notes and the other documents to be delivered hereunder, including, without
limitation, (A) all due diligence, syndication (including printing, distribution
and bank meetings), transportation, computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and expenses of
counsel for the Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under this Agreement. The Borrower
agrees to reimburse the Agent and each Bank upon demand for all reasonable
out-of-pocket expenses (including attorneys' fees and legal expenses and the
allocated costs of in-house counsel and legal staff) incurred by the Agent or
such Bank in enforcing the obligations of the Borrower or any Significant
Subsidiary under this Agreement or any other Loan Document.
SECTION 10.4 Indemnification. In consideration of the execution and
---------------
delivery of this Agreement by the Agent and each Bank and the extension of the
Commitments, the Borrower hereby indemnifies, exonerates and holds the Agent and
each Bank and each of their respective officers, directors, employees, and
agents (the "Bank Parties") free and harmless from and against any and all
------------
actions, causes of action, suits,
36
losses, costs, liabilities and damages, and expenses actually incurred in
connection therewith (irrespective of whether such Bank Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (the "Indemnified Liabilities"), incurred by
-----------------------
the Bank Parties or any of them as a result of, or arising out of, or relating
to the entering into and performance of this Agreement and any other Loan
Document by any of the Bank Parties or the actual or proposed use of the
proceeds of the Loans; except for any such Indemnified Liabilities arising for
the account of a particular Bank Party by reason of the relevant Bank Party's
breach of this Agreement or of any Loan Document or gross negligence or willful
misconduct, and if and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The Borrower also agrees
not to assert any claim for special, indirect, consequential or punitive damages
against the Agent, any Bank, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans.
SECTION 10.5 Survival. The obligations of the Borrower under Sections 4.4,
-------- ------------
4.5, 10.3, and 10.4 shall in each case survive any termination of this
--- ---- ----
Agreement. The representations and warranties made by each Loan Party in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 10.6 Severability. Any provision of this Agreement or any other
------------
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 10.7 Headings. The various headings of this Agreement and of each
--------
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such Loan Document or any
provisions hereof or thereof.
SECTION 10.8 Counterparts, Effectiveness. This Agreement may be executed by
---------------------------
the parties hereto in several counterparts, each of which shall be executed by
the Borrower, the Agent and each Bank and be deemed to be an original and all of
which shall constitute together but one and the same agreement.
SECTION 10.9 Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTE, AND
-------------------------------
EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT, THE
NOTE, AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 10.10 Successors and Assigns. This Agreement shall be binding upon
----------------------
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
-------- -------
(a) the Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Banks; and
(b) the rights of sale, assignment, participation and transfer by the
Banks are subject to Section 10.11.
-------------
SECTION 10.11 Sale and Transfers of Loans and Notes; Participations in
--------------------------------------------------------
Loans and Notes.
---------------
(a) Each Bank may at any time sell to one or more banks or other
entities ("Participants") participating interests in all or any portion of
------------
its Commitment and Loans or any other rights or interest of such Bank
hereunder (its "Credit Exposure"). In the event of any such sale by a
---------------
37
Bank of participating interests to a Participant, such Bank shall notify
the Borrower of the identity of such Participant, such Bank's obligations
under this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder
of any such Note for all purposes under this Agreement, and the Borrower
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
Except in the case of the sale of a participation to an Affiliate of a
Bank, any participation permitted hereunder shall be in a minimum amount of
at least $5,000,000, and the relevant participation agreement shall not
permit the Participant to transfer, pledge, assign, sell participations in
or otherwise encumber its portion of the Commitment or Loans. Each Bank
agrees that any agreement between such Bank and any such Participant in
respect of such participating interest shall not restrict such Bank's right
to agree to any amendment, supplement or modification to the Agreement or
any of the Loan Documents except to extend the final maturity of any Note,
reduce the rate or extend the time of payment of interest thereon or any
fees owed to such Bank under this Agreement or any of the Loan Documents,
reduce the principal amount of any Note or release any Guaranty. The
Borrower hereby acknowledges and agrees that any such disposition described
in this Section will give rise to a direct obligation of the Borrower to
the Participant, and such Participant shall, for purposes of Sections 3.7,
------------
3.8, 3.9, 4.4 and 4.5, be considered a Bank and may rely on, and possess
--- --- -- ---
all rights under, any opinions, certificates, or other Instruments
delivered under or in connection with this Agreement or any other Loan
Document; provided, however, that, the Borrower shall only be required to
-------- -------
deliver information and data required pursuant to this Agreement to the
Bank selling or granting a participation in (in whole or in part) its
Credit Exposure; and provided, further, that no Participant shall be
-------- -------
entitled to payment of any amount under Section 3.9 in excess of that which
-----------
would have been at the date of such participation required to be paid to
the selling Bank had no participation occurred. Concurrently with the sale
of any participation, the Participant shall execute and deliver to the
Borrower and the selling Bank an instrument in writing specifying its
Domestic Lending Office and its LIBOR Lending Office and containing an
Exemption Representation, and, if such Participant is a Non-United States
Person, an Exemption Agreement.
(b) Each Bank (in such capacity the "Assigning Bank") may at any time
--------------
assign to one or more banks or other entities (each a "Purchasing Bank")
---------------
all or any part of its Credit Exposure, provided, that (i) each such
--------
assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement and the Notes, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Bank or an assignment of all of a Bank's rights and
obligations under this Agreement, the amount of the Commitment of the
assigning Bank being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof, (iii) any Purchasing Bank (other
than an Affiliate of the Assigning Bank) must be acceptable to the Borrower
and the Agent, whose consent shall not be unreasonably withheld, and the
Agent's and the Borrower's decisions respecting the same shall be made
promptly, provided that the Borrower's consent shall not be required if an
--------
Event of Default has occurred and is continuing; (iv) each such assignment
made as a result of a demand by the Borrower shall be arranged by the
Borrower after consultation with the Agent and shall be either an
assignment of all of the rights and obligations of the assigning Bank under
this Agreement or an assignment of a portion of such rights and obligations
made concurrently with another such assignment or other such assignments
that together cover all of the rights and obligations of the assigning Bank
under this Agreement, (v) no Bank shall be obligated to make any such
assignment as a result of a demand by the Borrower unless and until such
Bank shall have received one or more payments from either the Borrower or
one or more Purchasing Banks in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Loans owing to such Bank,
together with accrued interest thereon to the date of payment of such
principal and all other amounts payable to such Bank under this Agreement
and (vi) the parties to each such assignment shall execute and deliver to
the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Notes subject to such assignment and,
except in the case of an assignment to an Affiliate of such Lender, a
processing and recordation fee of $3,500 (which shall be paid by Persons
other than the Borrower unless such assignment is made as a result of a
demand by the Borrower). In the event of any assignment, the Assigning Bank
shall give notice to the Borrower and the Agent and shall deliver to the
Agent, for its acceptance and recording in its records, an Assignment and
Acceptance, which shall
38
include an Exemption Representation and, if such Purchasing Bank is a
Non-United States Person, its Exemption Agreement. The Borrower and each
Bank agrees that to the extent of any assignment, the Purchasing Bank shall
be deemed to have the same rights and benefits with respect to the Borrower
under this Agreement and any Notes as it would have had if it were a Bank
hereunder; provided that the Borrower and the Agent shall be entitled to
--------
continue to deal solely and directly with the Assigning Bank in connection
with the interests so assigned to the Purchasing Bank until the Assignment
and Acceptance shall have been delivered to the Agent collectively by the
Assigning Bank and the Purchasing Bank. Upon the assignment of Credit
Exposure provided for hereby, the Assigning Bank shall be relieved of its
obligations hereunder to the extent of such assignment. In the event of any
assignment, the Borrower shall, at its sole cost and expense, prepare and
deliver to the Assigning Bank and to the Purchasing Bank new Notes
reflecting the effect of such assignment.
By executing and delivering an Assignment and Acceptance, the
Assigning Bank thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such Assigning Bank makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument
or document furnished pursuant hereto; (ii) such Assigning Bank makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such Purchasing
Bank confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 6.4 or the most
recent financial statements required to be delivered pursuant to Section
7.1.1 and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such Purchasing Bank will, independently and without
reliance upon the Agent, such Assigning Bank or any other Bank 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; (v) such Purchasing Bank appoints and authorizes the
Agent to take such action as agent on behalf of such assignee and to
exercise such powers and discretion under this Agreement as are delegated
to the Agent by the terms hereof, together with such powers and discretion
as are reasonably incidental thereto; and (vi) such Purchasing Bank agrees
that it will perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as a
Bank.
(c) The Borrower authorizes each Bank to disclose to any Participant
or Purchasing Bank (each, a "Transferee") and any prospective Transferee
----------
any and all financial information in the Bank's possession concerning the
Borrower and any Subsidiary which has been delivered to such Bank by the
Borrower or any Subsidiary pursuant to this Agreement or any other Loan
Document or which has been delivered to such Bank by the Borrower or any
Subsidiary in connection with such Bank's credit evaluation of the Borrower
or any Subsidiary prior to entering into this Agreement; provided, that
--------
such Transferee or prospective Transferee shall first have executed and
delivered to the Borrower a Confidentiality Agreement.
(d) The Agent shall maintain at its address referred to in Section
10.2 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Banks and the Commitment of, and principal
amount of the Loans owing to, each Bank from time to time (the "Register").
--------
The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the Banks
may treat each Person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Bank at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Bank shall have the right to collaterally assign its rights
hereunder or under any other Loan Document to any Federal Reserve Bank in
accordance with applicable law.
39
SECTION 10.12 Other Transactions. Nothing contained herein shall preclude
------------------
the Bank from engaging in any transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with the Borrower or any of its
Affiliates in which the Borrower or such Affiliate is not restricted hereby from
engaging with any other Person.
SECTION 10.13 Waiver of Jury Trial. THE BANKS, THE AGENT, AND THE BORROWER
--------------------
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF THE BANK, OR THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE BANKS AND THE AGENT ENTERING INTO THIS AGREEMENT.
SECTION 10.14 Consent to Jurisdiction and Service of Process. Any judicial
----------------------------------------------
proceedings brought against the Borrower with respect to this Agreement or any
Note may be brought in any state or federal court of competent jurisdiction in
the State of New York and by the execution and delivery of this Agreement the
Borrower accepts the nonexclusive jurisdiction of the aforesaid courts. Service
of process may be made by any means authorized by federal law or the law of New
York. A copy of any such process so served shall be mailed by registered mail to
the Borrower at its address set forth below its signature hereto or at such
other address as may be designated by the Borrower in a notice to the Bank.
Nothing herein shall limit the right of any Bank to bring proceedings against
the Borrower in the courts of any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CONSOL ENERGY INC.
By
------------------------------------------
Title:
CITIBANK, N.A., as Administrative Agent
By
------------------------------------------
Title:
Lenders
-------
Commitment
----------
$150,000,000 CITIBANK, N.A.
By
------------------------------------------
Title:
$100,000,000 THE BANK OF NOVA SCOTIA
40
By
------------------------------------------
Title:
$100,000,000 BANK ONE, NA
By
------------------------------------------
Title:
$100,000,000 DRESDNER BANK, AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By
------------------------------------------
Title:
By
------------------------------------------
Title:
$100,000,000 MELLON BANK, N.A.
By
------------------------------------------
Title:
$50,000,000 PNC BANK, N.A.
By
------------------------------------------
Title:
41
EXHIBIT A
NOTE
$ , 2001
------------ ----------
FOR VALUE RECEIVED, the undersigned, CONSOL ENERGY INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of ,
--------------
(the "Bank") on the Commitment Termination Date the principal sum of
($ ) or, if less, the outstanding principal amount of all
------------ --------
Loans made by the Bank to the Borrower outstanding from time to time pursuant to
that certain Senior Revolving Loan Agreement, dated as of January 22, 2001
(together with all amendments, if any, hereafter from time to time made thereto,
the "Loan Agreement"; the terms defined in the Loan Agreement are used herein as
--------------
therein defined), among the Borrower, the Bank and certain other lenders parties
thereto and Citibank, N.A., as Agent for the Bank and such other Lenders, as
such Loans are entered by the holder hereof in its records or in the appropriate
column of the grid (the "Grid") attached to this Note. All payments on account
of the principal hereof shall also be endorsed by the holder hereof on the Grid
or otherwise entered on the records of the Bank. Failure to record any such
amounts on the Grid shall not limit or otherwise affect the obligations of the
Borrower to make payments of principal or interest on this Note when due.
The unpaid principal amount of this Note from time to time outstanding
shall bear interest as provided in Section 3.4 and Section 3.5 of the Loan
----------- -----------
Agreement.
All payments of principal of and interest on this Note shall be
payable in lawful currency of the United States of America to Citibank, N.A., as
Agent, at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in
immediately available funds.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Loan Agreement, to which reference is made for a statement of
the terms and conditions on which the Borrower is permitted and required to make
prepayments of principal of this Note and on which the indebtedness evidenced
hereby may be declared to be immediately due and payable.
CONSOL ENERGY INC.
By
-------------------------------
Name:
Title:
A-1
GRID
Loans made by the Bank to CONSOL Energy Inc. described in that certain Senior
Revolving Loan Agreement, dated as of January 22, 2001, and payments of
principal of such Loans.
---------------------------------------------------------------------------------------------------------------------
Portion of Principal
Balance Maintained
---------------------------------------------------------------------------------------------------------------------
Amount of Outstanding Applicable Fixed
Principal Principal Rate Interest Notation Made
Date Amount of Loan Payment Balance Base Rate Loan LIBO Rate Loan Period By
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
A-2
EXHIBIT B
LOAN REQUEST
Citibank, N.A., as Agent for
the Banks parties to the Loan
Agreement referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Attention: Bank Loan Syndications Department
RE: Senior Revolving Loan Agreement, dated as of January 22, 2001
(together with all amendments, if any, thereafter from time to
time made thereto, the "Loan Agreement"), among CONSOL Energy
--------------
Inc., a Delaware corporation (the "Borrower"), the Banks party
--------
thereto and Citibank, N.A., as agent
Gentlemen:
The Borrower hereby irrevocably requests, pursuant to Section of
---
the Loan Agreement, that Advances be made to the Borrower in the aggregate
principal amount of $ on , 200 . The Borrower hereby also
--------- ---------- -
requests that such Borrowing be made as [ ] a LIBO Rate Loan in the amount of
---
$ having an Interest Period of [ ] one week or [ ] months or [ ]
--------- --- --- ---
a Base Rate Loan in the amount of $ .
---------
The Borrower hereby certifies and warrants that:
(a) the representations and warranties set forth in Article VI of the
Loan Agreement were true and correct as of the date made,
(b) on the date of the Borrowing requested hereby and after giving
effect to the incurrence thereof,
(i) the representations and warranties set forth in Article VI of
the Loan Agreement will be true and correct in all material respects
as if then made,
(ii) no Default will have occurred and be continuing,
(iii) since the Effective Date, there will have been no
occurrence which, individually or in the aggregate, would reasonably
be expected to have a Materially Adverse Effect, and
(iv) no litigation, arbitration or governmental investigation or
proceeding will be pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Guarantor or any Subsidiary or
will affect the business, operations or prospects of any thereof which
was not disclosed by the Borrower to
B-1
the Banks pursuant to Section 6.6 of the Loan Agreement and no
-----------
development not so disclosed will have occurred in any litigation,
arbitration or governmental investigation or proceeding so disclosed,
which, in either event, would reasonably be expected to have a
Materially Adverse Effect.
The Borrower agrees that if prior to the time of the making of the
Borrowing requested hereby any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so notify the
Agent. Except to the extent, if any, that prior to the time of the making of the
Borrowing requested hereby the Agent shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed to
be certified at the date of such Borrowing as if then made.
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered by its duly Authorized Officer this day of
---
, 200 .
--------------- -
CONSOL ENERGY INC.
By
-------------------------------
Name:
Title:
B-2
EXHIBIT C
LOAN
CONTINUATION/CONVERSION NOTICE
Citibank, N.A., as Agent for
the Banks parties to the Loan
Agreement referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Attention: Bank Loan Syndications Department
RE: Senior Revolving Loan Agreement, dated as of January 22, 2001
(together with all amendments, if any, thereafter from time to time
made thereto, the "Loan Agreement"), among CONSOL Energy Inc., a
-------------
Delaware corporation (the "Borrower"), the Banks party thereto and
-------
Citibank, N.A., as agent
Gentlemen/Ladies:
The Borrower hereby requests that on , 200 , a Borrowing
----------- --
in an outstanding principal amount of $ ,
-----------
(1) which is presently being maintained as
[ ] a Base Rate Borrowing or
[ ] a LIBO Rate Borrowing
(2) be
[ ] converted into, or
[ ] continued as
[ ] a LIBO Rate Borrowing having an Interest Period of
[ ] 1 week in the amount of $ ,
------------
[ ] 1 month in the amount of $ ,
-------------
[ ] 2 months in the amount of $ ,
-------------
[ ] 3 months in the amount of $ , or
-------------
[ ] a Base Rate Borrowing.
C-1
In the event that the Borrowing is to be converted into, or continued
as, a Fixed Rate Borrowing, the Borrower hereby:
(a) certifies and warrants that no Default has occurred and is
continuing;
(b) agrees that if prior to the time of such continuation or
conversion any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Agent; and
(c) certifies that no prepayment of Loans is required (after giving
effect to such continuation or conversion) pursuant to Section 3.3 of the
Loan Agreement.
Except to the extent, if any, that prior to the time of the
continuation or conversion requested hereby the Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed to be certified at the date of such continuation or conversion as if
then made.
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered by its Authorized Officer this day of ,
--- ------------
200_.
-
CONSOL ENERGY INC.
By
--------------------------
Name:
Title:
C-2
EXHIBIT D
CONFIDENTIALITY AGREEMENT
CONSOL ENERGY INC.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
, 200
-------------------- -
Citibank, N.A., as Agent for
the Banks parties to the Loan
Agreement referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Dear:
CONSOL Energy Inc. (the "Borrower"), the Banks party thereto and
--------
Citibank, N.A., as agent, have entered into that certain U.S.$600,000,000 Senior
Revolving Loan Agreement dated as of January 22, 2001 (as such may be amended,
supplemented, restated or otherwise modified and in effect from time to time,
the "Loan Agreement"). Capitalized terms used but not defined herein have the
--------------
meanings assigned to such terms in the Loan Agreement.
This letter (the "Agreement") acknowledges and confirms all agreements
---------
and understandings between (the "Bank") and the Borrower with
----------- ----
respect to maintaining the confidentiality of certain documentation, information
and other materials (collectively, the "Information") previously disclosed or
-----------
made available, or hereafter to be disclosed or made available, to the Bank by
the Borrower in connection with any due diligence or otherwise in connection
with the Loan Agreement. Such Information may include, without limitation, any
financial statements and other financial data, and any other information and
material concerning the business, operations, properties, assets, and financial
affairs of the Borrower and its Affiliates, as well as any and all information
and material developed from inspection of the properties and records of the
Borrower and its Affiliates and from discussions with officers and employees
thereof.
In consideration of the disclosure by the Borrower, through its
officers, employees, and representatives, of the Information, and intending to
be legally bound, the Bank hereby agrees with the Borrower as follows:
1. The Bank will maintain a secret and confidential status for any and
all of the Information. The Bank will refrain from using any of the
Information for its own use or commercial purposes and from directly or
indirectly disclosing or making available any of the Information to any
person, firm, company, entity or other party for any use, except as
expressly permitted by the Loan Agreement or this Agreement.
D-1
2. The Bank will restrict disclosures of any and all of the
Information only to those of its affiliates and those of the directors,
officers, employees, representatives and advisors of itself and its
affiliates as may be reasonably necessary and will advise all such persons
of the strict obligations of confidentiality hereunder. The Bank will
further take all such other measures as may be necessary to protect the
confidentiality of such disclosures and will use its reasonable efforts to
require its directors, officers, employees, representatives and advisors to
refrain from using any such Information for their own, or for any other
person's or entity's, use.
3. If the Bank is required in connection with judicial or governmental
proceedings or by applicable law (by oral questions, interrogatories,
requests for information or documents, subpoena, civil investigative demand
or similar process) to disclose any of the Information, it is agreed, to
the extent permissible under applicable law and to the extent practicable,
that the Bank will provide the Borrower with prompt notice of such
request(s) so that the Borrower may seek an appropriate protective order
and/or waive the Bank's compliance with the provisions of this Agreement;
provided, the Bank may allow bank regulators to examine the Information. It
is further agreed that if, in the absence of a protective order or the
receipt of a waiver hereunder, the Bank is nonetheless, in the opinion of
the Bank's counsel, compelled by a court order or other legal requirement
to disclose any of the Information or else stand liable for contempt or
suffer other censure or penalty, the Bank may disclose such Information to
such tribunal without liability hereunder.
4. It is understood that this Agreement shall in no way be deemed to
require the disclosure or making available to the Bank of any
documentation, information or other material, which shall be solely in the
discretion of the Borrower but subject to the requirements of the Loan
Agreement in that regard.
5. The Bank has been informed that (a) all Information disclosed or
made available to the Bank hereunder is of a confidential or proprietary
nature, or both, (b) the covenants of this Agreement and the Information
disclosed or made available to the Bank are special, unique, and of
extraordinary character, (c) the Borrower and/or its Affiliates will be
irreparably harmed by violation of this Agreement, and (d) the use of any
of the Information which is subject to this Agreement for the business
purposes of any party other than the Borrower and its Affiliates would
enable such party to compete unfairly with the Borrower. In the event that
the Bank shall have knowledge of any potential or actual breach of the
confidentiality of, or the misappropriation of, any of the Information
which is subject to this Agreement, the Bank will promptly give notice
thereof to the Borrower. In addition, the Borrower shall be entitled,
without limitation of any other remedies to which it may be entitled by
law, to injunctive relief (without proof of the lack of an adequate remedy
at law), to enforcement of specific performance of this Agreement, and to
damages in the event of any violation of this Agreement.
6. The provisions of this Agreement shall not apply to any information
or material which (a) is or becomes known to the public generally through
no wrongful act of the Bank, its directors, officers, employees,
representatives and advisors, (b) is, to the best of the Bank's knowledge
when such information is received, rightfully received from
D-2
a third party without breach of this Agreement, (c) is approved for release
by written authorization of the Borrower, or (d) was in the Bank's rightful
possession or that of the Bank's directors, officers, employees,
representatives and advisors at the time of disclosure hereunder.
7. This Agreement shall be binding upon and inure to the benefits of
the parties hereto and their respective successors, and shall not be
assigned by the Bank without the written consent of the Borrower.
8. The Borrower makes no warranty, expressed or implied, other than as
provided in the Loan Agreement, regarding the accuracy, completeness or
usefulness of the Information furnished hereunder, and the Bank shall
consider and use such Information at its risk and discretion.
9. All provisions of this Agreement shall be binding and take effect
from the date the Bank signs this Agreement.
10. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
11. This Agreement represents the entire agreement between the
Borrower and the Bank with respect to the subject matter hereof and
supersedes any and all prior negotiations, communications, agreements or
understandings pertaining thereto. This Agreement may be modified only by a
written amendment executed by both parties.
If the foregoing is accepted and agreed to by the Bank as a correct
expression of the Borrower's and the Bank's mutual understanding, then please
acknowledge that this Agreement is binding between the Borrower and the Bank by
signing and returning to the Borrower the attached copy of this Agreement.
Very truly yours,
CONSOL ENERGY INC.
By
------------------------------
Name:
Title:
Accepted and Agreed to this
day of , 2001
----- ---------------
[ BANK ]
By
--------------------------------------------------
Its
-------------------------------------------------
D-3
EXHIBIT E
DISCLOSURE SCHEDULE
ITEM 6.6. Litigation.
----------
Buckeye Reclamation Landfill Site
---------------------------------
Consolidation Coal Company is a member of the steering committee and a
potentially responsible party for environmental remediation at the Buckeye
Reclamation Landfill Site, a current CERCLA Superfund site situate near St.
Xxxxxxxxxxx, Belmont County, Ohio. Under terms of the Interim Allocation
Agreement entered into by potentially responsible parties, Consolidation Coal
Company is currently responsible for twenty-three percent (23%) of the Remedial
Design costs. Allocation of responsibility for the final remediation will be
resolved by negotiation or litigation. The maximum estimated total remediation
cost is Fifty Million Dollars ($50,000,000), although there is reason to believe
that the ultimate cost will be approximately Twenty-Five Million Dollars
($25,000,000).
E-1
EXHIBIT E
ITEM 6.13 Existing Subsidiaries and Significant Subsidiaries
--------------------------------------------------
SUBSIDIARIES OF CONSOL ENERGY INC.
Jurisdiction of Percentage
Subsidiary Incorporation Owned
---------- --------------------- ---------
Alaska Supply Chain Integrators, LLP Alaska 100%
Xxxxxxxx Pocahontas Company Delaware 100%
Cardinal River Coals Ltd. Alberta, Canada 50%
Cardinal States Gathering Company (Partnership) Virginia 25%
Cargo Dockers Ltd. Ontario 100%
Church Street Holdings, Inc. Delaware 100%
Colorap Development, Incorporated Pennsylvania 100%
Conrhein Coal Company (Partnership) Pennsylvania 100%
CONSOL Docks Inc. Delaware 100%
CONSOL Energy Canada Ltd. New Brunswick, Canada 100%
CONSOL Financial Inc. Delaware 100%
CONSOL Foreign Sales Corporation Barbados 100%
Consolidation Coal Company Delaware 100%
Consolidation Coal Company, Inc. Nevada 100%
Consolidation Coal Operating Company Delaware 100%
Consolidation Coal Sales Company Delaware 100%
CONSOL of Canada Inc. Delaware 100%
CONSOL of Kentucky Inc. Delaware 100%
E-2
Jurisdiction of Percentage
Subsidiary Incorporation Owned
---------- --------------------- ---------
Consol Pennsylvania Coal Company Delaware 100%
CONSOL Sales Company Delaware 100%
Cordin Ltd. Ottawa 100%
Cowanshannock Coal Company Incorporated Pennsylvania 100%
DUPECH Inc. Delaware 100%
Eighty-Four Mining Company Pennsylvania 100%
Xxxxx Fork Mining Company Delaware 100%
Fairmont Supply Company Delaware 100%
Godefroid Coal Trading and Shipping S.A. Belgium 100%
Greenon Coal Company Delaware 100%
Hammer Coal Company Delaware 100%
Helvetia Coal Company Pennsylvania 100%
IC Coal Inc. Delaware 100%
Island Creek Coal Company Delaware 100%
Island Creek Corporation Delaware 100%
Itmann Coal Company West Virginia 100%
Jeffco Coal Company Pennsylvania 100%
Kent Coal Mining Company Pennsylvania 100%
Keystone Coal Mining Corporation Pennsylvania 100%
Laurel Run Mining Company Virginia 100%
Xxxxxxxxxxx, Inc. Pennsylvania 100%
Lucerne Land Company Pennsylvania 100%
E-3
Jurisdiction of Percentage
Subsidiary Incorporation Owned
---------- --------------------- ---------
Xxxx Xxxxxxxx Mining Company Pennsylvania 100%
Maud Mining Company Pennsylvania 100%
XxXxxxx Coal Company Delaware 100%
MTB Inc. Delaware 100%
Neptune Bulk Terminals (Canada) Ltd. British Columbia 18.81%
New Century Holdings, Inc. Delaware 100%
Nineveh Coal Company Delaware 100%
X'Xxxxxxx Coal Company Pennsylvania 100%
Pocahontas Gas Partnership Virginia 50%
Potomac Coal Company West Virginia 100%
Pyrra Mining Company Pennsylvania 100%
Quarto Mining Company Ohio 100%
Reserve Coal Properties Company Delaware 100%
RFC Fuel Corporation New York 100%
Rochester & Pittsburgh Coal Company Pennsylvania 100%
Xxxxxxxxx & Xxxxxxxxxx Xxxx Xx. (Xxxxxx) Limited Ottawa 100%
Societe Europeenne des Charbons S.A. Belgium 100%
Subco, Incorporated Pennsylvania 100%
Supply Chain Management LLC Delaware 100%
Supreme Coal Company Pennsylvania 100%
The 1881 Group, Inc. Pennsylvania 100%
The White Star Coal Co., Inc. New York 100%
Twin Rivers Towing Company Delaware 100%
United Eastern Coal Sales Corporation Pennsylvania 100%
E-4
Jurisdiction of Percentage
Subsidiary Incorporation Owned
---------- --------------------- ---------
Welco Mining Company Delaware 100%
Westco Coal Company Pennsylvania 100%
Wolfpen Knob Development Company Virginia 100%
Young Township Company, Inc. Pennsylvania 100%
SIGNIFICANT SUBSIDIARIES
Jurisdiction of Percentage
Subsidiary Incorporation Owned
---------- --------------- ----------
Conrhein Coal Company (Partnership) Pennsylvania 100%
Consolidation Coal Company Delaware 100%
CONSOL Financial Inc. Delaware 100%
CONSOL of Kentucky Inc. Delaware 100%
Consol Pennsylvania Coal Company Delaware 100%
Eighty-Four Mining Company Pennsylvania 100%
Fairmont Supply Company Delaware 100%
IC Coal Inc. Delaware 100%
Island Creek Coal Company Delaware 100%
XxXxxxx Coal Company Delaware 100%
Nineveh Coal Company Delaware 100%
Rochester & Pittsburgh Coal Company Pennsylvania 100%
E-5
ITEM 7.2.1(iii). Ongoing Indebtedness.
--------------------
(1) $102.9MM Industrial Revenue Bonds issued by City of Baltimore for
Consolidation Coal Sales Company. Principal and interest guaranteed by X. X.
XxXxxx de Nemours and Company. These bonds have been issued in two series, 1984A
and B Series totalling $72MM, and 1985 Series totalling $30.9MM. Maturities of
the 1984 and 1985 Series are October 1, 2011 and December 1, 2010, respectively.
These bonds are at a fixed annual rate of 6.50%. The Borrower has the option to
call the bonds on a restricted basis. The Bondholders do not have the option to
require the Borrower to redeem the bonds.
(2) $156MM Guaranteed Medium Term Notes issued by Consolidation Coal
Company. Principal and interest jointly guaranteed by CONSOL Inc. and CONSOL
Energy Inc. These notes mature and bear interest as follows:
Notes due 2002 at average of 8.28% $66MM
Notes due 2004 at average of 8.21% 45MM
Notes due 2007 at average of 8.25% 45MM
These notes are not redeemable prior to maturity and are not subject to any
sinking fund.
E-6
ITEM Section 7.2.2(b). Liens.
-----
None.
E-7
ITEM 7.2.9. Guaranties.
----------
CONSOL ENERGY INC.
GUARANTEES OF SECURITIES OF OTHER ISSUERS AND OF
OTHER OBLIGATIONS AT JUNE 30, 2000
----------------------------------
(Dollars in Millions)
Title of Issue of Each
Name of Issuer of Securities Class of Securities Nature of Guarantee (e.g.,
Guaranteed by CONSOL and Guaranteed guarantee as to principal Total Amount Guaranteed
Consolidation Subsidiaries (e.g., bank loan) and interest) and Outstanding (1)
------------------------------ ---------------------- -------------------------- -----------------------
Affiliated Companies
--------------------
(I) Cardinal River Coals Ltd. Letter of Credit Principal and Interest 6.966 Canadian $
CONSOL Energy Canada Ltd. Letter of Credit Principal and Interest 2.000 Canadian $
----------
(1) CONSOL does not anticipate that it will have to perform under any of the
guarantees listed.
(I) Indirect Guarantees
X-0
XXXXXXX X
, 0000
-----------
To the Banks parties to the
Loan Agreement referred to
below and Citibank, N.A., as agent
RE: Senior Revolving Loan Agreement, dated as of January 22, 2001
Dear:
I am senior counsel of CONSOL Energy Inc., a Delaware corporation, and
have acted as such and as counsel to (a) CONSOL Energy Inc., a Delaware
corporation (the "Borrower"), and (b) Consolidation Coal Company, a Delaware
--------
corporation; Conrhein Coal Company, a Pennsylvania General Partnership; CONSOL
Financial Inc., a Delaware corporation; CONSOL of Kentucky Inc., a Delaware
corporation; CONSOL Pennsylvania Coal Company, a Delaware corporation;
Eighty-Four Mining Company, a Pennsylvania corporation; Fairmont Supply Company,
a Delaware corporation; Island Creek Coal Company, a Delaware corporation; IC
Coal Inc., a Delaware corporation; XxXxxxx Coal Company, a Delaware corporation;
Nineveh Coal Company, a Delaware corporation; Rochester & Pittsburgh Coal
Company, a Pennsylvania corporation, each a "Significant Subsidiary" and
----------------------
collectively, the "Significant Subsidiaries", (the Borrower and the Significant
------------------------
Subsidiaries, collectively, the "Subordinating Parties"), in connection with the
---------------------
negotiation, execution and delivery of the following agreements and documents:
(a) Senior Revolving Loan Agreement, dated as of January 22, 2001 (the
"Loan Agreement"), among the Borrower, the Banks parties thereto and
--------------
Citibank, N.A., as agent;
(b) Separate promissory notes, each dated January 22, 2001 (the
"Notes"), issued by the Borrower pursuant to the Loan Agreement and payable
-----
to the order of the respective Banks;
(c) Significant Subsidiary Guaranty, dated as of January 22, 2001 (the
"Significant Subsidiary Guaranty"), executed by each Significant Subsidiary
-------------------------------
in favor of the Agent and the Banks; and
(d) Subordination Agreement, dated as of January 22, 2001 (the
"Subordination Agreement"), executed by each Subordinating Party in favor
-----------------------
of the Agent and the Banks.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to such terms in the Loan Agreement.
F-1
I am familiar with the corporate proceedings taken by the Borrower and
the Significant Subsidiaries in connection with the foregoing agreements and
documents and the transactions contemplated thereby. In addition, I have
examined such corporate records, certificates and other documents and such
questions of law as I have considered necessary or appropriate for the basis of
the opinions hereinafter expressed.
In making the examination of all documents and agreements in
connection with the opinions expressed herein, I have assumed the genuineness of
all signatures and the authenticity of all documents submitted to me as
originals and the conformity with the originals of all documents submitted to me
as copies.
Based upon, and subject to, the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. The Borrower
is duly qualified and in good standing as a foreign corporation authorized
to do business in each jurisdiction where its ownership or leasing of real
estate, ownership of substantial assets other than real estate, conduct of
substantial business or location of employees require it to be so qualified
and where the failure so to qualify would reasonably be expected to have a
Materially Adverse Effect.
2. Each Significant Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation. Each Significant Subsidiary is duly qualified and in
good standing as a foreign corporation authorized to do business in each
jurisdiction where its ownership or leasing of real estate, ownership of
substantial assets other than real estate, conduct of substantial business,
or location of employees require it to be so qualified and where the
failure so to qualify would reasonably be expected to have a Materially
Adverse Effect.
3. The Borrower has full corporate power and authority to own and
operate its properties and assets, carry on its business as currently
conducted, and enter into and perform its obligations under the Loan
Agreement and each other Loan Document executed by it.
4. Each Significant Subsidiary has full corporate power and authority
to own and operate its properties and assets, carry on its business as
currently conducted, and enter into and perform its obligations under the
Significant Subsidiary Guaranty.
5. Each Subordinating Party has full corporate power and authority to
enter into and perform its obligations under the Subordination Agreement.
6. The execution and delivery of the Loan Agreement and the Notes, and
the performance by the Borrower of its obligations thereunder, have been
duly authorized by all necessary corporate action on the part of the
Borrower, and all of said documents and instruments have been duly executed
and delivered on behalf of the Borrower.
7. The execution and delivery of the Significant Subsidiary Guaranty,
and the performance by each Significant Subsidiary of its obligations
thereunder, have been
F-2
duly authorized by all necessary corporate action on the part of such
Significant Subsidiary and have been duly executed and delivered on behalf
of each Significant Subsidiary.
8. The execution and delivery of the Subordination Agreement, and the
performance by each Subordinating Party of its obligations thereunder, have
been duly authorized by all necessary corporate action on the part of such
Subordinating Party and have been duly executed and delivered on behalf of
each Subordinating Party.
9. There is no provision in the articles of incorporation or the
by-laws of the Borrower, nor any provision in any indenture, mortgage,
contract, voting trust or agreement known to me after due inquiry to which
the Borrower is a party or by which it or its properties may be bound, nor
any law, statute, rule or regulation, nor any writ, order or decision known
to me after due inquiry of any court or governmental instrumentality
binding on the Borrower which would be contravened by the execution and
delivery of the Loan Agreement or the Notes, nor do any of the foregoing
prohibit performance by the Borrower of any term, provision, condition,
covenant or any other obligation of the Borrower contained therein.
10. There is no provision in the articles of incorporation or the
by-laws of any Significant Subsidiary, nor any provision in any indenture,
mortgage, contract, voting trust or agreement known to me after due inquiry
to which any Significant Subsidiary is a party or by which it or its
properties may be bound, nor any law, statute, rule or regulation, nor any
writ, order or decision known to me after due inquiry of any court or
governmental instrumentality binding on any Significant Subsidiary which
would be contravened by the execution and delivery of the Significant
Subsidiary Guaranty, nor do any of the foregoing prohibit performance by
any Significant Subsidiary of any term, provision, condition, covenant or
any other obligation of any Significant Subsidiary contained therein.
11. There is no provision in the articles of incorporation or the
by-laws of any of the Subordinating Parties, nor any provision in any
indenture, mortgage, contract, voting trust or agreement known to me after
due inquiry to which any Subordinating Party is a party or by which it or
its properties may be bound, nor any law, statute, rule or regulation, nor
any writ, order or decision known to me after due inquiry of any court or
governmental instrumentality binding on any Subordinating Party, which
would be contravened by the execution and delivery of the Subordination
Agreement, nor do any of the foregoing prohibit performance by any
Subordinating Party of any term, provision, condition, covenant or any
other obligation of any Subordinating Party contained therein.
12. The Loan Agreement is, and each Loan Document executed by any Loan
Party will on the due execution and delivery thereof be, the legal, valid
and binding obligation of such Loan Party enforceable in accordance with
its terms, subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in effect
affecting the enforceability of the rights of creditors generally, and by
general equitable principles.
F-3
13. The execution and delivery by the Borrower of the Loan Agreement
and each other Loan Document to which it is a party and the performance
thereof and borrowing thereunder by the Borrower will not result in or
require the creation or imposition of any Lien on any of its properties
pursuant to the provisions of any Contractual obligation.
14. Except as described in the financial statements of the Borrower
referred to in Section 6.4 of the Loan Agreement or in the Disclosure
Schedule, there are no actions, suits or proceedings pending or, to the
best of my knowledge after due inquiry, threatened against or affecting the
Borrower or any Subsidiary before any court or arbitrator(s) or by or
before any administrative agency or governmental authority, which has a
reasonable likelihood of being adversely determined and would reasonably be
expected to result in a liability in excess of $10,000,000.
15. Neither the making nor the performance of the Loan Agreement, the
Notes, the Significant Subsidiary Guaranty or the Subordination Agreement
requires the consent or approval of any governmental instrumentality under
any law, statute, rule or regulation or under any indenture, mortgage,
contract or agreement known to me after due inquiry.
I am licensed to practice law only in the Commonwealth of Pennsylvania
and the foregoing opinions are limited solely to the laws of the Commonwealth of
Pennsylvania, the corporate law of the State of Delaware and federal law.
This opinion letter is being furnished to the Banks and their
Transferees for their use and the use of their respective counsel. No other use
or distribution of this opinion may be made without prior written consent.
Very truly yours,
Xxxxxxx X. Xxxxx, Xx.
Senior Counsel
F-4
EXHIBIT G
SIGNIFICANT SUBSIDIARY GUARANTY
From
CONSOLIDATION COAL COMPANY
CONRHEIN COAL COMPANY,
CONSOL FINANCIAL INC.
CONSOL OF KENTUCKY INC.,
CONSOL PENNSYLVANIA COAL COMPANY,
EIGHTY-FOUR MINING COMPANY,
FAIRMONT SUPPLY COMPANY,
ISLAND CREEK COAL COMPANY,
IC COAL INC.,
XxXXXXX COAL COMPANY,
NINEVEH COAL COMPANY,
ROCHESTER & PITTSBURGH COAL COMPANY
To
CITIBANK, N.A.,
as Agent
G-1
SIGNIFICANT SUBSIDIARY GUARANTY
-------------------------------
1. Guaranty of Payment. FOR VALUE RECEIVED, and in consideration of
-------------------
any loan or other financial accommodation heretofore or hereafter at any time
made or granted to CONSOL Energy Inc., a Delaware corporation (herein called the
"Debtor") under the Senior Revolving Loan Agreement dated as of January 22, 2001
------
(the "Loan Agreement"; terms defined in the Loan Agreement are used herein as
--------------
therein defined), each of the undersigned, hereby unconditionally guarantees to
the Agent for the benefit of the Banks the full and prompt payment when due,
whether by acceleration or otherwise, and at all times thereafter, of all
obligations of the Debtor to the Agent and the Banks, howsoever created, arising
or evidenced, whether direct or indirect, primary or secondary, absolute or
contingent, joint or several, or now or hereafter existing, or due or to become
due, including, without limitation, any and all interest accruing on any of such
obligations after the commencement of any suit or proceeding related to the
dissolution, winding up, liquidation, insolvency, bankruptcy or reorganization
of the Debtor or any of its assets or properties, whether or not allowed or
allowable in such proceeding and notwithstanding any provision or rule of law
which might restrict the rights of the Agent or any Bank, as against the Debtor
or anyone else, to collect any of such interest (all such obligations, together
with any extensions or renewals thereof, being hereinafter collectively called
the "Liabilities"), under and in connection with the Loan Agreement, and each of
-----------
the undersigned further agrees to pay all reasonable expenses (including
attorneys' fees and legal expenses) paid or incurred by the Agent or any Bank in
endeavoring to collect the Liabilities, or any part thereof, and in enforcing
this guaranty.
2. Acceleration of the Time of Payment of Amount Payable Under
-----------------------------------------------------------
Guaranty. Each of the undersigned agrees that, in the event of the dissolution
--------
or insolvency of the Debtor or such undersigned, or the inability or failure of
the Debtor or such undersigned to pay debts as they become due, or an assignment
by the Debtor or such undersigned for the benefit of creditors, or the
commencement of any case or proceeding in respect of the Debtor or such
undersigned under any bankruptcy, insolvency or similar laws, and, if such case
or proceeding is not commenced by the Debtor or such undersigned, such case or
proceeding shall be consented to or acquiesced in by the Debtor or such
undersigned, or shall result in the entry of an order for relief or shall remain
for 60 days undismissed, and if such event shall occur at a time when any of the
Liabilities may not then be due and payable, such undersigned will pay to the
Agent and the Banks forthwith the full amount which would be payable hereunder
by such undersigned if all Liabilities were then due and payable.
3. Right of Setoff in Deposits and Other Property. The Agent and each
----------------------------------------------
Bank shall have a right of set off against (and may, without demand or notice of
any kind, at any time and from time to time when any amount shall be due and
payable by such undersigned hereunder, set off, appropriate and apply toward the
payment of such amount, in such order of application as the Agent and each Bank
may elect) any and all balances, credits, deposits (general or special, time or
demand, provisional or final), accounts or moneys of or in the name of such
undersigned now or hereafter with the Agent or such Bank.
4. Continuing Guaranty. This guaranty shall in all respects be a
-------------------
continuing, absolute and unconditional guaranty, and shall remain in full force
and effect (notwithstanding, without limitation, the dissolution of any of the
undersigned or that at any time or from time to
1
time all Liabilities may have been paid in full), until all Liabilities
(including any extensions or renewals of any thereof) and all interest thereon
and all expenses (including attorneys' fees and legal expenses) reasonably paid
or incurred by the Agent or any Bank in endeavoring to collect the Liabilities
and in enforcing this guaranty shall have been finally paid in full and all
other obligations of each of the undersigned under this guaranty shall have been
satisfied.
5. Rescission or Return of Payment on Liabilities. Each of the
----------------------------------------------
undersigned further agrees that, if at any time all or any part of any payment
theretofore applied by the Agent or any Bank to any of the Liabilities is or
must be rescinded or returned by the Agent or such Bank for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of the Debtor), such Liabilities shall, for the purposes of this
guaranty, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
the Agent or such Bank, and this guaranty shall continue to be effective or be
reinstated, as the case may be, as to such Liabilities, all as though such
application by the Agent or such Bank had not been made.
6. Agent and Banks Permitted to Take Certain Actions. The Agent and
-------------------------------------------------
the Banks may, from time to time, at its sole discretion and without notice to
the undersigned (or any of them), take any or all of the following actions
without impairing the obligations of the undersigned under this guaranty: (a)
retain or obtain a lien upon or a security interest in any property to secure
any of the Liabilities or any obligation hereunder, (b) retain or obtain the
primary or secondary obligation of any obligor or obligors, in addition to the
undersigned, with respect to any of the Liabilities, (c) extend or renew for one
or more periods (whether or not longer than the original period), alter or
exchange any of the Liabilities, or release or compromise any obligation of any
of the undersigned hereunder or any obligation of any nature of any other
obligor with respect to any of the Liabilities, (d) release or fail to perfect
its lien upon or security interest in, or impair, surrender, release or permit
any substitution or exchange for, all or any part of any property securing any
of the Liabilities or any obligation hereunder, or extend or renew for one or
more periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor with
respect to any such property, and (e) resort to the undersigned (or any of them)
for payment of any of the Liabilities, whether or not the Agent or any Bank (i)
shall have resorted to any property securing any of the Liabilities or any
obligation hereunder or (ii) shall have proceeded against any other of the
undersigned or any other obligor primarily or secondarily obligated with respect
to any of the Liabilities (all of the actions referred to in preceding clauses
(i) and (ii) being hereby expressly waived by the undersigned).
7. Application of Payments. Any amounts received by the Agent or any
-----------------------
Bank from whatsoever source on account of the Liabilities may be applied by the
Agent or such Bank, toward the payment of such of the Liabilities, and in such
order of application, as the Agent or such Bank may from time to time elect.
8. Waiver of Subrogation. Each of the undersigned hereby waives any
---------------------
claim or other right which such of the undersigned may now have or hereafter
acquire against the Debtor or any other obligor primarily or secondarily
obligated with respect to any of the Liabilities that arises from the existence
or performance of the obligations of such of the undersigned under this
guaranty, including, without limitation, any right of indemnification or
2
any right of subrogation or other right to participate in any claim or remedy of
the Agent or any Bank against the Debtor or any property securing any of the
Liabilities, which the Agent or any Bank now has or hereafter acquires, whether
or not such claim, right or remedy arises in equity or under contract, statute
or common law. The provisions of this paragraph are for the express benefit of
the Debtor and each other obligor primarily or secondarily obligated with
respect to any of the Liabilities as well as the Bank and may be enforced
independently by the Debtor and each such other obligor.
9. Waiver of Notice and Other Matters. Each of the undersigned hereby
----------------------------------
expressly waives: (a) notice of the acceptance by the Agent or any Bank of this
guaranty, (b) notice of the existence or creation or non-payment of all or any
of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and
all other notices whatsoever, and (d) all diligence in collection or protection
of or realization upon the Liabilities or any thereof, any obligation hereunder,
or any security for or guaranty of any of the foregoing.
10. Additional Liabilities of the Debtor Authorized. The creation or
-----------------------------------------------
existence, with or without notice to the undersigned, from time to time of
Liabilities in excess of the amount to which the right of recovery under this
guaranty is limited shall not in any way affect or impair the rights of the
Agent or any Bank and the obligations of the undersigned under this guaranty.
11. Assignment of Liabilities. The Agent or any Bank may, from time to
-------------------------
time to the extent permitted under the Loan Agreement, without notice to the
undersigned (or any of them), assign or transfer any or all of the Liabilities
or any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this guaranty, and each and every
immediate and successive assignee or transferee of any of the Liabilities or of
any interest therein shall, to the extent of the interest of such assignee or
transferee in the Liabilities, be entitled to the benefits of this guaranty to
the same extent as if such assignee or transferee were the Agent or such Bank.
12. Waiver and Modifications. No delay on the part of the Agent or any
------------------------
Bank in the exercise of any right or remedy shall operate as a waiver thereof,
and no single or partial exercise by the Agent or such Bank of any right or
remedy shall preclude other or further exercise thereof or the exercise of any
other right or remedy; nor shall any modification or waiver of any of the
provisions of this guaranty be binding upon the Agent or any Bank except as
expressly set forth in a writing duly signed and delivered on behalf of the
Agent or such Bank.
13. Obligations Under Guaranty. No action of the Agent or any Bank
--------------------------
permitted hereunder shall in any way affect or impair the rights of the Agent or
any Bank and the obligations of the undersigned under this guaranty. For the
purposes of this guaranty, Liabilities shall include all obligations of the
Debtor to the Agent or any Bank under and in connection with the Loan Agreement,
notwithstanding any right or power of the Debtor or anyone else to assert any
claim or defense as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the obligations
of the undersigned hereunder. The obligations of the undersigned under this
guaranty shall be absolute and unconditional irrespective of any circumstance
whatsoever which might constitute a legal or equitable
3
discharge or defense of the undersigned (or any of them). Each of the
undersigned hereby acknowledges that there are no conditions to the
effectiveness of this guaranty.
14. Information Concerning Debtor. Each of the undersigned hereby
-----------------------------
warrants and represents to the Agent and each Bank that such undersigned now has
and will continue to have independent means of obtaining information concerning
the affairs, financial condition and business of the Debtor. Neither the Agent
nor any Bank shall have any duty or responsibility to provide the undersigned
(or any of them) with any credit or other information concerning the affairs,
financial condition or business of the Debtor which may come into the Agent or
such Bank's possession.
15. Senior Indebtedness. Each of the undersigned hereby further
-------------------
warrants and represents that the obligations of such undersigned under this
Guaranty and under each other Loan Document constitutes indebtedness senior to
any subordinated indebtedness of such undersigned.
16. Certain Representations. The undersigned hereby further warrant
-----------------------
and represent to the Agent and each Bank that (a) the execution and delivery of
this guaranty, and the performance by each of the undersigned of its obligations
hereunder, are within the corporate right, power, authority and capacity of such
undersigned and have been duly authorized by all necessary corporate action on
the part of such undersigned, and (b) this guaranty has been duly executed and
delivered on behalf of each of the undersigned and is the legal, valid and
binding obligation of such undersigned, enforceable in accordance with its
terms, the making and performance of which do not and will not contravene or
conflict with the charter or by-laws of such undersigned or violate or
constitute a default under any law, any presently existing requirement or
restriction imposed by judicial, arbitral or any governmental instrumentality or
any agreement, instrument or indenture by which such undersigned is bound.
17. Liabilities Limited. Anything else in this guaranty
-------------------
notwithstanding, each of the undersigned shall be liable under this guaranty
only for the maximum amount of such liability that can be hereby incurred
without rendering this guaranty, as it relates to such undersigned, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount.
18. Successors. This guaranty shall be binding upon the undersigned,
----------
and upon the successors and assigns of the undersigned; and all references
herein to the Debtor and to such of the undersigned, respectively, shall be
deemed to include any successor or successors, whether immediate or remote, to
the Debtor or such undersigned. The term "undersigned" as used herein shall mean
all parties executing this guaranty and each of them, and all such parties shall
be jointly and severally obligated hereunder.
19. Law; Severability. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE
-----------------
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. Wherever possible each
provision of this guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such
4
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this guaranty.
20. Captions. Section captions used in this guaranty are for
--------
convenience only, and shall not affect the construction of this guaranty.
21. Waiver of Jury Trial. THE UNDERSIGNED HEREBY EXPRESSLY WAIVE ANY
--------------------
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
22. Consent to Jurisdiction and Service of Process. Each of the
----------------------------------------------
undersigned agrees that any judicial proceedings brought against such
undersigned with respect to this guaranty may be brought in any state or federal
court of competent jurisdiction in the State of New York and by the execution
and delivery of this guaranty, each of the undersigned accepts the nonexclusive
jurisdiction of the aforesaid courts. Service of process may be made by any
means authorized by federal law or the law of New York, as the case may be. A
copy of any such process so served shall be mailed by registered mail to such
undersigned at its address set forth opposite its name on the signature page
hereto or at such other address as may be designated by such undersigned in a
notice to the Agent. Nothing herein shall limit the right of the Bank to bring
proceedings against any of the undersigned in the courts of any other
jurisdiction.
SIGNED AND DELIVERED as of this day of ,
------- ----------------
2001.
CONSOLIDATION COAL COMPANY
By
-------------------------------------
Title:
CONRHEIN COAL COMPANY
By
-------------------------------------
Title:
CONSOL FINANCIAL INC.
By
-------------------------------------
Title:
5
CONSOL OF KENTUCKY INC.
By
-------------------------------------
Title:
CONSOL PENNSYLVANIA COAL COMPANY
By
-------------------------------------
Title:
EIGHTY-FOUR MINING COMPANY
By
-------------------------------------
Title:
FAIRMONT SUPPLY COMPANY
By
-------------------------------------
Title:
ISLAND CREEK COAL COMPANY
By
-------------------------------------
Title:
IC COAL INC.
By
-------------------------------------
Title:
XxXXXXX COAL COMPANY
By
-------------------------------------
Title:
NINEVEH COAL COMPANY
By
-------------------------------------
Title:
6
ROCHESTER & PITTSBURGH COAL COMPANY
By
-------------------------------------
Title:
7
EXHIBIT H
ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE (this "Assignment") is delivered
----------
pursuant to Section 10.11(b) of the Senior Revolving Loan Agreement, dated as of
-------------
January 22, 2001 (as it may be amended or modified and in effect from time to
time, the "Loan Agreement"), among CONSOL Energy Inc. (the "Borrower"), the
-------------- --------
Banks parties thereto and Citibank, N.A., as agent. Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Loan Agreement.
The undersigned hereby agree as follows:
1. The party listed below under the caption "Purchasing Bank" hereby
certifies it is an eligible Purchasing Bank and indicates its desire to become a
Purchasing Bank pursuant to Section 10.11(b) of the Loan Agreement.
---------------
2. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The date on
which such Purchasing Bank shall purchase its Loans and assume its Commitment
under the Loan Agreement is , 200 (the "Adjustment Date"), subject to
-------- --- ---------------
compliance with the terms and conditions of this Assignment.
3. The respective amounts of the Purchasing Bank's Commitment being
assumed by it from the Bank assigning and transferring such Commitment (the
"Assigning Bank") is set forth below opposite such Purchasing Bank's name under
--------------
the caption "Commitment" and the amount of the Purchasing Bank's purchased Loans
are set forth below opposite such Purchasing Bank's name under the caption
"Purchased Loans." The purchase price shall be in an amount as agreed between
the Assigning Bank and the Purchasing Bank and shall be paid in same day or
immediately available funds on or before 11:00 a.m. on the Adjustment Date to
the Assigning Bank pursuant to Section 10.11(b) of the Loan Agreement.
---------------
4. Upon the Adjustment Date referred to in Section 2 above, the amount
---------
of the Purchasing Bank's Percentage shall be equal to the respective percentage
set forth below opposite such Purchasing Bank's name under the caption
"Percentage."
5. After giving effect to the assigning and transferring of Loans
and/or Commitments to the Purchasing Bank on the Adjustment Date as set forth
above, (a) the adjusted Percentage, if any, of the Assigning Bank shall be the
percentage set forth below opposite the Assigning Bank's name under the caption
"Adjusted Percentage" (and the Assigning Bank shall be relieved of all
obligations under the Loan Agreement to the extent of the reduction effected to
its Percentage in accordance herewith), (b) the respective principal amount of
the Loans owing to the Assigning Bank shall be equal to the amounts, set forth
below opposite the Assigning Bank's name under the caption "Retained Loans" and
(c) the Assigning Bank's adjusted Commitment, shall be equal to the amount set
forth below opposite the Assigning Bank's name under the caption "Adjusted
Commitment."
H-1
6. The Purchasing Bank and the Assigning Bank hereby certify that the
Loans and the Commitment being assigned or retained by each are being assigned
or retained prorata.
-------
7. Upon or after the acceptance and recording of this Assignment and
Acceptance by the Agent, the Purchasing Bank shall be entitled to receive
interest on the outstanding principal amount of all Loans made by it (including
purchased Loans contemplated hereby) from and after the Adjustment Date.
8. Upon or after the acceptance and recording of this Assignment and
Acceptance by the Agent, this Assignment will become effective, as to the
Purchasing Bank, upon the payment to the Assigning Bank by such Purchasing Bank
of the amounts required to be paid, if any, in accordance with the purchased
Loans as provided above. If the proposed Purchasing Bank does not execute this
Assignment, or if this Assignment does not become effective as to the Purchasing
Bank, appropriate adjustments will be made (confirmed to each of the parties
hereto by telex or telecopier notice) to reflect such circumstance.
9. Concurrently with the execution and delivery hereof, the Borrower
will issue substitute or replacement Notes to the Assigning Bank, as applicable,
and to the Purchasing Bank. The Borrower agrees that such substitute or
replacement Notes shall be delivered to the Purchasing Bank and to the Assigning
Bank, as applicable, promptly after the Adjustment Date. The Assigning Bank
agrees to deliver to the Borrower, the replaced Note payable to the Assigning
Bank under the Loan Agreement promptly after the occurrence of the Adjustment
Date, such Note to be marked "Replaced."
10. Upon the effectiveness of this Assignment with respect to the
Purchasing Bank as specified in Section 8 above, the Assigning Bank has hereby
---------
transferred and assigned to the Purchasing Bank, and the Purchasing Bank has
hereby purchased and assumed from the Assigning Bank a portion of the Assigning
Bank's Commitment and Loans as provided for herein, and the Purchasing Bank
shall be a party to the Loan Agreement and a Bank thereunder and (a) shall be
entitled to all rights, benefits and privileges accorded to a Bank in the Loan
Agreement and each other Loan Document, and (b) shall be subject to all
obligations of a Bank thereunder (including, without limitation, the obligation
to fund its Percentage of Loans hereafter requested.
11. The Purchasing Bank acknowledges and confirms that it has received
a copy of the Loan Agreement and the Exhibits thereto. The Purchasing Bank
further confirms and agrees that in making its Commitment and Loans under the
Loan Agreement, such actions have and will be made without recourse to, or
representation or warranty by, the Assigning Bank, the Agent or any other Bank.
12. The Purchasing Bank acknowledges and confirms that other than as
provided herein none of the Assigning Bank, the Agent or any other Bank makes
any representation or warranty and assumes any responsibility with respect to
any statement, warranties or representations made in or in connection with the
Loan Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto, or the execution,
H-2
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto.
13. The Purchasing Bank acknowledges and confirms that the Assigning
Bank, the Agent or any other Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower, either Guarantor or any Significant Subsidiary or the performance or
observance by the Borrower, either Guarantor or any Significant Subsidiary of
any of their respective obligations under the Loan Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto.
14. The Purchasing Bank acknowledges and confirms that it has received
copies of the financial statements referred to in Section 6.4 of the Loan
-----------
Agreement or the financial statements, if any, theretofore delivered by the
Borrower pursuant to Section 7.1.1 of the Loan Agreement and such other
-------------
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment.
15. The Purchasing Bank will, independently and without reliance upon
the Assigning Bank, the Agent or any other Bank 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 Loan Agreement and the
other Loan Documents.
16. The Purchasing Bank agrees (to the extent it is permitted to do so
under the laws and any applicable double taxation treaties of the United States,
the jurisdiction of such Purchasing Bank's incorporation, and the jurisdictions
in which such Purchasing Bank's Domestic Office and LIBOR Office are located) to
execute and deliver to the Borrower prior to the first scheduled payment date in
each Fiscal Year, a United States Internal Revenue Form W-8BEN or Form W-8ECI
(or any successor form), appropriately completed and claiming complete or
partial, as the case may be, exemption from withholding and deduction of United
States Federal Taxes. Attached hereto is such an executed form so completed.]*
17. The Purchasing Bank hereby represents and warrants to the Borrower
that on the date hereof (i) its Domestic Office and its LIBOR Office are
entitled to receive payments of principal of, and interest on, Loans made under
the Loan Agreement without deduction or withholding for or on account of any
Taxes imposed by the United States or any political subdivision thereof, (ii)
any payment received by it under the Loan Agreement is not subject to any Taxes,
whether or not such Taxes are required to be deducted or withheld by the
Borrower [, and (iii) it is permitted to take the actions described in paragraph
16 above (with respect to complete exemption from withholding and deduction of
United States Federal Taxes) under the laws and any applicable double taxation
treaties of the jurisdictions specified in such paragraph 16].
18. The Purchasing Bank hereby appoints and authorized the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Agreement as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto.
H-3
19. The Assigning Bank warrants to the Purchasing Bank and the
Purchasing Bank warrants to the Assigning Bank that this Assignment has been
duly executed and delivered by such bank and constitutes the legal, valid and
binding obligation of such party enforceable against such party in accordance
with its terms, subject to bankruptcy, insolvency, reorganization or similar
laws affecting such party and general equitable principles.
20. Each of the parties to this Assignment agrees that at any time and
from time to time upon the written request of any party, it will execute and
deliver such further documents and do such further acts and things as such party
may reasonably request in order to effect the purpose of this Assignment.
21. This Assignment may be executed in any number of counterparts by
the parties hereto, each of which counterparts shall be deemed to be an original
and all of which shall together constitute one and the same Assignment.
22. MATTERS RELATING TO THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
H-4
IN WITNESS WHEREOF, the undersigned have executed this Assignment as
of the Adjustment Date.
CONSOL ENERGY INC.
By:
-----------------------------------------
Title:
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
[BANK]
By:
---------------------------------------
Title:
------------------------------------
Address:
----------------------------------
--------------------------------------------
Attention:
--------------------------------
Telephone:
--------------------------------
Telecopy No.:
-----------------------------
H-5
ASSIGNING BANK
Retained Adjusted Adjusted
Loans Percentage Commitment
-------- ---------- ----------
$ % $
[Name of Assigning Bank]
By:
------------------------------------
Title:
---------------------------------
Address:
-------------------------------
-----------------------------------------
Attention:
-----------------------------
Telephone:
-----------------------------
Facsimile:
-----------------------------
Accepted this day of , 200
---- --------- --
CITIBANK, N.A., as Agent
By:
-------------------------
Title:
--------------------
H-6
EXHIBIT I
COMMITMENT TERMINATION DATE EXTENSION REQUEST
, 2001
---------------------
[Bank]
[address]
Attention:
-----------------------------
RE: Senior Revolving Loan Agreement, dated as of January 22, 2001 (together
with all amendments, if any, hereafter from time to time made thereto, the
"Loan Agreement"), between CONSOL Energy Inc., a Delaware corporation
--------------
("Borrower"), the Banks party thereto and Citibank, N.A., as agent
--------
Gentlemen/Ladies:
In accordance with the Loan Agreement, the Borrower hereby requests
that you consent to the extension of the Commitment Termination Date, in
accordance with the definition of such term contained in the Loan Agreement, for
an additional three hundred sixty (360) days to , 200 .
---------------- -
Please indicate your consent to such extension by signing the enclosed
copy of this letter in the space provided below and returning the same to the
Borrower (with a copy to the Agent) no later than , 200 .
--------------- -
The extension shall be effective when executed consents are received
from all the Banks by the Borrower or otherwise in accordance with Section 2.4
-----------
of the Loan Agreement, but not in any case prior to , 200 .
----------------- -
I-1
The Borrower hereby certifies that no Default has occurred and is continuing.
Very truly yours,
CONSOL ENERGY INC.
By:
--------------------------------
Title:
CONSOLIDATION COAL COMPANY
By:
--------------------------------
Title:
CONRHEIN COAL COMPANY
By:
--------------------------------
Title:
CONSOL FINANCIAL INC.
By:
--------------------------------
Title:
CONSOL OF KENTUCKY INC.
By:
--------------------------------
Title:
CONSOL PENNSYLVANIA COAL COMPANY
By:
--------------------------------
Title:
EIGHTY-FOUR MINING COMPANY
By:
--------------------------------
Title:
I-2
FAIRMONT SUPPLY COMPANY
By:
--------------------------------
Title:
ISLAND CREEK COAL COMPANY
By:
--------------------------------
Title:
IC COAL INC.
By:
--------------------------------
Title:
XxXXXXX COAL COMPANY
By:
--------------------------------
Title:
NINEVEH COAL COMPANY
By:
--------------------------------
Title:
ROCHESTER & PITTSBURGH COAL COMPANY
By:
--------------------------------
Title:
The undersigned hereby consents on this
----
day of , 200 to the
----------- -
above-requested extension of the Commitment
Termination Date.
[NAME OF BANK]
By:
-----------------------------------------
Title:
--------------------------------------
I-3
EXHIBIT J
SUBORDINATION AGREEMENT
This Agreement, dated as of , is entered into by and
------------------
between each of CONSOL ENERGY INC. ("CEI")(the "Borrower"), CHURCH STREET
--- --------
HOLDINGS, INC. ("CSH"), CONSOLIDATION COAL COMPANY ("CCC"), CONRHEIN COAL
--- ---
COMPANY ("CONRHEIN"), CONSOL FINANCIAL INC. ("CFI"), CONSOL OF KENTUCKY INC.
-------- ---
("COK"), CONSOL PENNSYLVANIA COAL COMPANY ("CPCC"), EIGHTY-FOUR MINING COMPANY
--- ----
("EFMC"), FAIRMONT SUPPLY COMPANY ("FSC"), GREENON COAL COMPANY ("GCC"), ISLAND
---- --- ---
CREEK COAL COMPANY ("ICCC"), IC COAL INC. ("ICCI"), XxXXXXX COAL COMPANY
---- ----
("MCC"), NEW CENTURY HOLDINGS, INC. ("NCH"), NINEVEH COAL COMPANY ("NCC") and
--- --- ---
ROCHESTER & PITTSBURGH COAL COMPANY ("R&P"); the Borrower, CCC, CSH, CONRHEIN,
---
CFI, COK, CPCC, EFMC, FSC, GCC, ICCC, ICCI, MCC, NCH, NCC and R&P are
collectively referred to herein as the "Subordinated Lenders") for the benefit
--------------------
of the Agent and the Banks under the Loan Agreement referred to below;
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Banks parties thereto and Citibank, N.A.,
as agent, have entered into a Amended and Restated Senior Revolving Loan
Agreement, dated as of January 22, 2001, (as the same may at any time be
amended or modified and in effect, the "Loan Agreement"), pursuant to which,
--------------
among other things, the Bank has agreed to extend credit to the Borrower;
WHEREAS, each of the Subordinated Lenders acknowledges that the loans
and other extensions of financial accommodations or credit to the Borrower and
the Agent and the Banks pursuant to the Loan Agreement is of value to the
Subordinated Lenders;
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the meanings assigned thereto in the Loan Agreement;
NOW, THEREFORE, to induce the Agent and the Banks to enter into the
Loan Agreement, and for other valuable consideration, receipt whereof is hereby
acknowledged, each of the Subordinated Lenders hereby agrees as follows:
SECTION 1. Definitions. All claims by or belonging to any Person
-----------
against the Borrower, CCC, CSH, CONRHEIN, CFI, COK, CPCC, EFMC, FSC, GCC, ICCC,
ICCI, MCC, NCH, NCC and R&P and any other Person that from time to time is a
Significant Subsidiary (individually, a "Debtor" and collectively, the
------
"Debtors"), howsoever created, arising or evidenced, whether direct or indirect,
-------
absolute or contingent or now or hereafter existing, are hereinafter called the
"Claims". All Claims of the Agent or any Bank under the Loan Agreement, the
Notes and each other Loan Document are hereinafter called the "Senior Claims",
and all Claims of each of the Subordinated Lenders are hereinafter called the
"Junior Claims"; it being expressly understood and agreed that the term "Senior
Claims", as used herein, shall include, without limitation, any and all interest
accruing on any of the Senior Claims after the commencement of any suits or
proceedings referred to in Section 5, notwithstanding any
---------
J-1
provision or rule of law which might restrict the rights of the Agent or any
Bank, as against any of the Debtors or anyone else, to collect such interest.
SECTION 2. Notice of Junior Liabilities, etc. At any time when a
---------------------------------
Default shall be existing, each of the Subordinated Lenders will promptly notify
the Agent of the creation of any Junior Claims and of the issuance of any
promissory note or other instrument of any of the Debtors to evidence any Junior
Claims.
SECTION 3. Subordination. Except as expressly provided in Section 4 of
-------------
this Agreement, the payment of all Junior Claims shall be postponed and
subordinated to the payment in full of all Senior Claims, and each Subordinated
Lender agrees not to seek to collect any amounts owing to it by any of the
Debtors under or in connection with any settlement of any Junior Claim or any
judgment entered in favor of any or all Claimants with respect to a Junior
Claim, or to seek to obtain any other distributions in money or property or of
any other kind whatsoever in respect of any Junior Claims, nor shall any
property or assets of any of the Debtors be applied to the purchase or other
acquisition or retirement of any Junior Claims.
SECTION 4. Permitted Payments. Provided that both before and after
------------------
giving effect to any such payment, no Default shall have occurred and be
continuing, notwithstanding Section 3 above, any of the Debtors may pay to the
Subordinated Lenders, and the Subordinated Lenders may accept from such Debtors,
any payments of principal and interest on all Junior Claims. In the event that a
Default shall be existing, none of the Subordinated Lenders shall ask, demand,
take or receive from any Debtor by setoff or in any other manner any payment in
respect of any Junior Claims until such Default ceases to exist or all Senior
Claims shall have been fully paid in cash and performed and all of the
Commitments shall have been terminated.
SECTION 5. Bankruptcy, Insolvency, etc. In the event of any
---------------------------
dissolution, winding up, liquidation, readjustment, reorganization or other
similar proceedings relating to (a) any Debtor or (b) the respective assets or
properties of any Debtor, whether such proceeding or proceedings are voluntary
or involuntary, partial or complete, and whether in bankruptcy, insolvency or
receivership, or upon an assignment for the benefit of creditors, or any other
marshalling of the assets and liabilities of any Debtor or any sale of all or
substantially all of the assets of any Debtor, or otherwise, the Subordinated
Lenders hereby acknowledge and agree that the Senior Claims shall first be paid
in full before any Subordinated Lender shall be entitled to receive and/or to
retain any payment or distribution in respect of any of the Junior Claims. In
order to implement the foregoing, (i) all payments and distributions of any kind
or character in respect of any of the Junior Claims to which any Subordinated
Lender would be entitled if the Junior Claims were not subordinated pursuant to
this Agreement shall be made directly to the Bank, (ii) each Subordinated Lender
shall promptly file a claim or claims, in the form required in such proceedings,
for the full outstanding amount of the Junior Claims, if any, by or belonging to
such Subordinated Lender, and shall cause said claim or claims to be approved
and all payments and other distributions in respect thereof to be made directly
to the Agent, and (iii) each Subordinated Lender hereby irrevocably agrees that,
if such Subordinated Lender shall fail to file any such claim referred to in the
preceding clause (ii), the Agent may, at its sole discretion, in the name of
each Subordinated Lender or otherwise, demand, xxx for, collect, receive and
accept receipt for any and all such payments or distributions, and file, prove,
and vote or consent in any
J-2
such proceedings with respect to, any and all claims of each Subordinated Lender
relating to the Junior Claims.
SECTION 6. Payments Held in Trust. In the event that any Subordinated
----------------------
Lender receives any payment or other distribution of any kind or character from
any source whatsoever in respect of any of the Junior Claims, other than as
expressly permitted by the terms of this Agreement, such payment or other
distribution shall be received in trust for the Agent and the Banks, and each
Subordinated Lender shall promptly turn over any such payment or distribution to
the Agent. Each of the Subordinated Lenders will keep, and cause each Debtor to
keep, this Agreement with and as part of its respective books and records, and
will cause to be clearly inserted in any promissory note or other instrument
which at any time evidences any of the Junior Claims a statement to the effect
that the payment thereof is subordinated in accordance with the terms of this
Agreement. Each of the Subordinated Lenders will execute such further documents
or instruments and take such further action as the Agent may from time to time
reasonably request to carry out the intent of this Agreement.
SECTION 7. Application of Payments; No Subrogation. All payments and
---------------------------------------
distributions received by the Agent in respect of the Junior Claims, to the
extent received in or converted into cash, may be applied by the Agent first to
the payment of any and all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Agent or any Bank in enforcing this Agreement
or in endeavoring to collect or realize upon any of the Senior Claims or the
Junior Claims or any security therefor, and any balance thereof may, solely as
between each of the Subordinated Lenders and the Agent, be applied by the Agent
in such order of application as the Agent, in its sole discretion, may elect
from time to time, toward the payment of the Senior Claims remaining unpaid;
provided, however, as among the Debtors on the one hand and each of the
-------- -------
Subordinated Lenders on the other hand, and their respective creditors, no such
payments or distributions of any kind or character shall be deemed to be
payments or distributions in respect of the Senior Claims. Notwithstanding any
such payments or distributions received by the Agent in respect of the Senior
Claims or the Junior Claims, which payments or distributions are applied by the
Agent toward the payment of the Senior Claims, each of the Subordinated Lenders
shall be subrogated to the then existing rights of the Agent, if any, in respect
of the Senior Claims only at such time as this Agreement shall have been
discontinued and the Agent shall have received payment of the full amount of the
Senior Claims.
SECTION 8. Waivers by the Subordinated Lenders. Each of the
-----------------------------------
Subordinated Lenders hereby waives: (a) notice of acceptance by the Agent or any
Bank of this Agreement; (b) notice of the existence or creation or non-payment
of all or any of the Claims; and (c) all diligence in collection or protection
of or realization upon the Claims or any thereof or any security therefor.
SECTION 9. Obligations of the Subordinated Lenders. None of the
---------------------------------------
Subordinated Lenders will, without the Agent's prior written consent: (a) after
the occurrence of and during the continuation of a Default, cancel, waive,
forgive, transfer or assign, or attempt to enforce or collect, any Junior Claims
or any rights in respect thereof; (b) take any collateral security for any
Junior Claims or subordinate any Junior Claims or any rights in respect thereof
to any Claims other than Senior Claims; or (c) after the occurrence of and
during the continuation of a Default, convert any Junior Claims into stock of
any Debtor.
J-3
SECTION 10. Continuing Subordination. This Agreement shall in all
-------------------------
respects be a continuing agreement and shall remain in full force and effect,
notwithstanding, without limitation, the dissolution or insolvency of the
Borrower, any Debtor or any of the Subordinated Lenders. All of the agreements
and obligations of each of the Subordinated Lenders under this Agreement shall
remain in effect in full until all such Senior Claims (including without
limitation any extensions, renewals or refinancings of any thereof and all
interest and expenses relating to such Senior Claims) shall have been finally
paid in cash in full and all of the Commitments shall have been terminated
(subject to reinstatement if any such Senior Claims shall thereafter cease to
have been paid in full in cash).
SECTION 11. Representations and Warranties. Each of the Subordinated
-------------------------------
Lenders represents and warrants unto the Agent and each Bank as set forth below.
a. Each of the Subordinated Lenders is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation.
b. The execution, delivery and performance by each of the Subordinated
Lenders of this Agreement are within their respective corporate powers,
have been duly authorized by all necessary corporate action of each such
Subordinated Lender (including, without limitation, stockholder approval),
have received all necessary governmental approvals (if any shall be
required) and other consents or approvals and do not and will not
contravene or conflict with, or create a lien under, (i) any provision of
law, (ii) the constituent documents of such Subordinated Lender, (iii), any
court or administrative decree applicable to such Subordinated Lender or
(iv) any contractual restriction binding upon such Subordinated Lender.
c. This Agreement has been duly executed and delivered by each of the
Subordinated Lenders, and is the legal, valid and binding obligation of
each of the Subordinated Lenders enforceable against such Subordinated
Lender in accordance with its terms, subject, as to enforcement, only to
bankruptcy, insolvency, reorganization, moratorium or other similar laws at
the time in effect affecting the enforceability of the rights of creditors
generally, and by general equitable principles.
SECTION 12. Rights of the Agent. The Agent may, from time to time, at
--------------------
its sole discretion and without notice to any or all of the Subordinated
Lenders, take any or all of the following actions: (a) retain or obtain a
security interest in any property to secure any of the Senior Claims, (b) retain
or obtain the primary or secondary obligation of any other obligor or obligors
with respect to any of the Senior Claims, (c) extend or renew for one or more
periods (whether or not longer than the original period), alter or exchange any
of the Senior Claims, or release or compromise any obligation of any nature of
any obligor with respect to any of the Senior Claims, and (d) release its
security interest in, or surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Senior Claims,
or extend or renew for one or more periods (whether or not longer than the
original period) or release, compromise, alter or exchange any obligations of
any nature of any obligor with respect to any such property.
J-4
SECTION 13. Transfer of Senior Liabilities. The Agent or any Bank may,
-------------------------------
from time to time, without notice to any or all of the Subordinated Lenders,
assign or transfer any or all of the Senior Claims or any interest therein.
Notwithstanding any such assignment or transfer or any subsequent assignment or
transfer of any Senior Claims, such Senior Claims shall be and remain Senior
Claims for the purpose of this Agreement, and every immediate and successive
assignee or transferee of any of the Senior Claims or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Senior Claims, be entitled to the benefits of this Agreement to the same extent
as if such assignee or transferee were the Agent or such Bank.
SECTION 14. Miscellaneous. The Agent and the Banks shall not be
--------------
prejudiced in their rights under this Agreement by any act or failure to act of
any or all of the Subordinated Lenders or by any noncompliance of any or all of
the Subordinated Lenders with any agreement or obligation, regardless of any
knowledge thereof which the Agent or any Bank may have or with which the Agent
or any Bank may be charged. No action of the Subordinated Lenders permitted
hereunder shall in any way affect or impair the rights of the Agent or any Bank
and the obligations of each of the Subordinated Lenders under this Agreement. No
delay on the part of the Agent or any Bank in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
the Agent or any Bank of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy; nor shall any
modification or waiver of any of the provisions of this Agreement be binding
upon the Agent or any Bank unless such modification or waiver is expressly set
forth in a writing duly signed and delivered on behalf of the Agent and the
Banks. For purposes of this Agreement, the Senior Claims shall include all
obligations of each Debtor to the Agent and the Banks, notwithstanding any right
or power of any Debtor or anyone else to assert any claim or defense as to the
invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the agreements and obligations of the
Subordinated Lenders hereunder.
SECTION 15. Successors and Assigns. This Agreement shall be binding
-----------------------
upon each of the Subordinated Lenders and upon the legal representatives,
successors and assigns of each of the Subordinated Lenders, whether immediate or
remote. The term "Subordinated Lenders" as used herein shall mean all of the
Subordinated Lenders and each of them obligated hereunder.
SECTION 16. Governing Law. This Agreement shall be construed in
--------------
accordance with and governed by the internal laws of the State of New York,
without regard to principles of conflicts of law. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
SECTION 17. Waiver of Jury Trial; Submission to Jurisdiction. Each of
-------------------------------------------------
the Subordinated Lenders waives any right to a trial by jury in any action or
proceeding to enforce or defend any rights under or relating to this Agreement
or arising from or relating to any banking relationship existing in connection
with this Agreement or otherwise between each of the Subordinated Lenders, and
agrees that any such action or proceeding shall be tried before a court and not
before a jury.
J-5
Each of the Subordinated Lenders hereby agrees that any judicial
proceedings brought against such Subordinated Lender with respect to this
Agreement may be brought in any state or federal court of competent jurisdiction
in the State of New York and by the execution and delivery of this Agreement,
each Subordinated Lender accepts the nonexclusive jurisdiction of the aforesaid
courts. Service of process may be made by any means authorized by federal law or
the law of New York. A copy of such process so served shall be mailed by
registered mail to such Subordinated Lender at its address set forth opposite
its name or the signature page hereto or at such other address as may be
designated by such Subordinated Lender in a notice to the Bank.
Nothing in this paragraph 17 shall affect the right of the Agent or
any Bank to serve legal process in any other manner permitted by law or affect
the right of the Agent or any Bank to bring any action or proceeding against any
of the Subordinated Lenders or their respective property in the courts of any
other jurisdictions.
SECTION 18. Severability. Wherever possible, each provision of this
-------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 19. Section Titles. The section tiles contained in this
---------------
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
IN WITNESS WHEREOF, this Agreement has been made and delivered at
as of the date and year first written above.
----------------
CONSOL ENERGY INC.
By:
-----------------------------------------
Title: Senior Vice President and Chief
Financial Officer
CONSOLIDATION COAL COMPANY
By:
-----------------------------------------
Title: Treasurer
CHURCH STREET HOLDINGS, INC.
By:
-----------------------------------------
Title: Treasurer
CONRHEIN COAL COMPANY
J-6
By:
-----------------------------------------
Title: Treasurer
CONSOL FINANCIAL INC.
By:
-----------------------------------------
Title: Treasurer
CONSOL OF KENTUCKY INC.
By:
-----------------------------------------
Title: Treasurer
CONSOL PENNSYLVANIA COAL COMPANY
By:
-----------------------------------------
Title: Treasurer
EIGHTY-FOUR MINING COMPANY
By:
-----------------------------------------
Title: Treasurer
FAIRMONT SUPPLY COMPANY
By:
-----------------------------------------
Title: Controller
ISLAND CREEK COAL COMPANY
By:
-----------------------------------------
Title: Treasurer
IC COAL INC.
By:
-----------------------------------------
Title: Treasurer
XxXXXXX COAL COMPANY
J-7
By:
-----------------------------------------
Title: Treasurer
NEW CENTURY HOLDINGS, INC.
By:
-----------------------------------------
Title: Treasurer
NINEVEH COAL COMPANY
By:
-----------------------------------------
Title: Treasurer
ROCHESTER & PITTSBURGH COAL COMPANY
By:
-----------------------------------------
Title: Treasurer
J-8
EXHIBIT K
PERMITTED INVESTMENTS
1. Direct obligations of the U. S. Government.
2. Obligations of any foreign government or obligations which possess
a guarantee of the full faith and credit of any foreign government.
3. Obligations of any of the following:
(a) U.S. Government-sponsored enterprises, federal agencies and
federal financing banks which are not otherwise authorized including, but
not limited to, the following:
(i) U.S. Government-sponsored enterprises such as:
. Instrumentalities of the Federal Credit System (Bank
for Cooperatives, Federal Land Banks);
. Federal Home Loan Banks;
. Federal National Mortgage Association; and
(ii) Federal agencies such as:
. Instrumentalities of the Department of Housing and
Urban Development (Federal Housing Administration,
Government National Mortgage Association);
. Export-Import Bank;
. Farmers Home Administration;
. Tennessee Valley Authority,
4. Obligations of states, counties and municipalities of the United
States.
5. Debt Obligations (other than Commercial Paper) of domestic or
foreign corporations.
6. Preferred stock obligations with a floating rate dividend which is
reset periodically at auction.
7. Investments in repurchase agreements collateralized by any of the
above securities eligible for outright purchase, provided the collateral is
delivered to a bank custody account in accordance with the terms of a written
repurchase agreement with a dealer or bank.
8. Certificates of Deposit, Time Deposits, Banker Acceptance and other
obligations issued by domestic and foreign banks which have stockholder equity
of $100 million or more.
K-1
9. Commercial paper rated either P-1 by Xxxxx'x or A-1 by Standard &
Poor's.
10. Investments in shares of institutional mutual funds whose
investment policies are essentially in agreement with the above policies.
11. Investments described in point 1, 3, 4, 5 and 7 above are
restricted to obligations rated no lower than AA-3 by Xxxxx'x or AA- by S&P.
K-2
EXHIBIT L
LIBOR AND DOMESTIC OFFICES OF BANKS AND
ADDRESSES FOR NOTICES
BORROWER: CONSOL Energy Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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Domestic Lending LIBOR Lending
Bank Commitment Office Office
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