EXHIBIT 10.1
CREDIT AGREEMENT
CREDIT AGREEMENT (this "Agreement") dated as of November 30, 2000
among XXXXXX ENERGY COMPANY (the "Borrower"), A.T. XXXXXX COAL COMPANY, INC.
(the "Guarantor"), the undersigned lenders (together with each lender which
becomes a Lender hereunder pursuant to Section 2.15(b) or Section 10.06
(collectively the "Lenders")), CITIBANK, N.A., as administrative agent for the
Lenders (in such capacity "Administrative Agent"), and PNC BANK, NATIONAL
ASSOCIATION, as syndication agent (the "Syndication Agent") and FIRST UNION
NATIONAL BANK, as documentation agent (the "Documentation Agent"). The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person. The term "control" (including the terms "controlled by" or
"under common control with") means the possession, direct or indirect, of
the power to vote 50% or more of the securities having ordinary voting
power for the election of directors of such Person or to direct or cause
the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise.
"Applicable Margin" means, for Eurodollar Loans, an interest rate per
annum equal at all times to, (i) 0.400% for each day during a Level I
Period; (ii) 0.550% for each day during a Level II Period; (iii) 0.775% for
each day during a Level III Period; (iv) .875% for each day during a Level
IV Period; (v) .875% for each day during a Level V Period; and (vi) 1.275%
for each day during a Level VI Period.
"Assignee" has the meaning set forth in Section 10.03(d).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit G.
"Assuming Lender" means each Eligible Assignee that accepts an offer
to participate in a requested extension of the Commitments in accordance
with Section 2.15.
"AT Guaranty" has the meaning set forth in Section 9.01.
"Base Rate" means, for any day, a rate per annum equal to the higher
of:
(i) the rate of interest publicly announced by Citibank in New York
City from time to time as its base rate; and
(ii) the sum of one-half percent (1/2%) plus the Federal Funds Rate
for such day.
"Base Rate Loan" means a Loan to be made by a Lender pursuant to
Section 2.01 as a Base Rate Loan in accordance with the applicable
Notice of Borrowing or pursuant to Article VIII.
"Borrower" has the meaning set forth in the preamble to this
Agreement.
"Borrower's Pro Formas" means the Borrower's pro forma financial
statements contained in the Proxy Statement, consisting of an
unaudited pro forma balance sheet as at July 31, 2000 and related pro
forma statements of earnings for the year ended October 31, 1999 and
the nine months ended July 31, 2000.
"Borrowing" has the meaning set forth in Section 1.03.
"Citibank" means Citibank, N.A.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor statute.
"Commitment" has the meaning set forth in Section 2.01.
"Competitive Bid Borrowing" means a Borrowing consisting of a
Competitive Bid Loan or simultaneous Competitive Bid Loans from each
of the Lenders whose offer to make one or more Competitive Bid Loans
as part of such Borrowing has been accepted under the competitive
bidding procedure described in Section 2.03.
"Competitive Bid Euro-Dollar Rate Loan" means a Loan made
pursuant to Section 2.03 that bears interest based on the Euro-Dollar
Rate.
"Competitive Bid Lending Office" means, with respect to each
Lender, the office of such Lender notified by such Lender to the
Administrative Agent as its Lending Office with respect to any
Competitive Bid Loan.
"Competitive Bid Loan" means a Competitive Bid Euro-Dollar Rate
Loan or a Fixed Rate Loan.
"Competitive Bid Loan Reduction" has the meaning specified in
Section 2.01.
"Competitive Bid Loan Note" means a promissory note of the
Borrower registered in the name of any Lender, in substantially the
form of Exhibit B-2, evidencing the aggregate Debt of the Borrower to
such Lender resulting from the Competitive Bid Loans owing to such
Lender.
"Consolidated Debt" means at any date the total Debt of the
Borrower and its Subsidiaries, determined on a consolidated basis as
of such date.
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for any period, an amount equal to (a) Consolidated Net
Income for such period plus (b) the sum of, in each case to the extent
deducted in the calculation of such Consolidated Net Income but
without duplication, (i) any income tax expense, (ii) Consolidated
Interest Expense, (iii) losses from extraordinary items, (iv)
depreciation, depletion, and amortization of intangibles or financing
or acquisition costs, and (v) all other non-cash charges and non-cash
losses for such period minus (c) the sum of, in each case to the
extent added in the calculation of such Consolidated Net Income but
without duplication, (i) any income tax benefit, (ii) interest income,
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(iii) gains from extraordinary items for such period, (iv) any
aggregate net gain (but not any aggregate net loss) from the sale,
exchange or other disposition of capital assets currently employed in
the trade or business of the Borrower and its Subsidiaries, and (v)
any other non-cash gains or non-cash items.
"Consolidated Interest Coverage Ratio" means, with respect to the
Borrower and its Subsidiaries for any period, the ratio of
Consolidated EBITDA to Consolidated Interest Expense for such period.
"Consolidated Interest Expense" means, for the Borrower and its
Subsidiaries for any period, total interest expense for such period
determined on a consolidated basis in conformity with GAAP and
including, in any event, interest capitalized during construction for
such period.
"Consolidated Net Income" means, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in conformity with GAAP.
"Consolidated Tangible Net Worth" means at any date the
stockholders' equity of the Borrower and its Subsidiaries less their
Intangible Assets, all determined as of such date on a consolidated
basis in conformity with GAAP. For purposes of this definition
"Intangible Assets" means the amount (to the extent reflected in
determining such consolidated stockholders' equity) of (i) all
write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) in the
book value of any asset owned by the Borrower or a Subsidiary, and
(ii) all unamortized debt discount and expense, unamortized deferred
charges (excluding longwall-related deferred charges), goodwill,
patents, trademarks, service marks, trade names, copyrights,
organization expenses and other intangible items.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower,
are treated as a single employer for federal income tax purposes under
Section 4l4(b) or 414(c) of the Code.
"Convert," "Conversion" and "Converted" each refers to a
conversion of a Loan of one Type into a Loan of another Type pursuant
to Section 2.06.
"Debt" of any Person means at any date, without duplication, (i)
all indebtedness of such Person for borrowed money which would be
classified as a liability of such Person in accordance with GAAP on
such Person's balance sheet, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments
(except for notes relating to self-insurance programs of the Borrower
and/or its Subsidiaries which are not classified as current
liabilities of the Borrower or any of its Subsidiaries) which would be
classified as a liability of such Person in accordance with GAAP on
such Person's balance sheet, (iii) all obligations of such Person to
pay the deferred purchase price of property or services, except trade
accounts payable arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases (determined
in accordance with GAAP), (v) all obligations of such Person to
purchase securities (or other property) which arise out of or in
connection with the sale of the same or substantially similar
securities or property, which obligations or any portion thereof may,
in accordance with their terms, become due on or before the
Termination Date, (vi) all reimbursement and other obligations with
respect to drafts or other drawings under letters of credit, bankers'
acceptances, Guarantees, surety bonds, performance bonds, bid bonds
and performance bonds (to the extent
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unreimbursed), (vii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (viii) all
Debt of others Guaranteed by such Person, and (ix) Production Payments to
the extent the obligations of such Person with respect thereto would be
classified as a liability of such Person in accordance with GAAP on such
Person's balance sheet. The Debt of any Person shall include the Debt of
any partnership or joint venture in which such Person is a general partner
or a joint venturer, but only to the extent to which there is recourse to
such Person for payment of such Debt.
"Default" means any condition or event specified in Section
6.01 which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Designating Lender" has the meaning set forth in Section
10.06(f).
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized by law to close.
"Domestic Lending Office" means, as to each Lender, its office
located at its address set forth on the Schedule I hereof or such other
office as such lender may hereafter designate as its Domestic Lending
Office by notice to the Borrower and the Administrative Agent.
"Effective Date" means November 30, 2000; provided that all
the conditions in Sections 3.01 and 3.02 shall have been satisfied, or
waived.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, the District of Columbia, or any
state thereof, and having a combined capital and surplus of at least
$100,000,000; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economical
Cooperation and Development (the "OECD"), or a political subdivision of
any such country and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or
agency located in the country in which it is organized or another
country which is also a member of the OECD; (iii) any Person engaged in
the business of lending and that is an Affiliate of a Lender or of a
Person of which a Lender is a subsidiary; provided that such Person is
not a competitor of the Borrower or any of its Material Subsidiaries;
and (iv) any other Person approved by the Administrative Agent and the
Borrower.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the
environment, or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes into the environment,
including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or the clean-up
or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
thereunder.
"ERISA Event" means (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, unless the 30-day notice
requirement with respect thereto has been waived by the PBGC; (ii) the
provision by the administrator of any Plan of a notice of intent to
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terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (iii) the cessation of operations at a
facility by any member of the Controlled Group in the circumstances
described in Section 4062(e) of ERISA; (iv) the withdrawal by any
member of the Controlled Group from a Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (v) the failure by any member of the Controlled Group to
make a payment to a Plan required under Section 302(f)(1) of ERISA,
which Section imposes a lien for failure to make required payments;
(vi) the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or (vii) the
institution by the PBGC of proceedings to terminate a Plan, pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
which, in the reasonable judgment of the Borrower, might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from
time to time.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including
dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its
office, branch or affiliate located at its address set forth on
Schedule I hereof or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office
by notice to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan to be made by a Lender
pursuant to Section 2.01 as a Euro-Dollar Loan in accordance with the
applicable Notice of Borrowing.
"Euro-Dollar Rate" means, for any Euro-Dollar Loan for any
Interest Period, a rate per annum equal to the sum of the appropriate
Applicable Margin plus the applicable LIBO Rate.
"Euro-Dollar Reserve Percentage" of any Lender for the
Interest Period for any Euro-Dollar Loan or Competitive Bid Euro-Dollar
Rate Loan means the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such Interest
Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning set forth in Section 6.01.
"Extension Date" has the meaning specified in Section 2.15(a).
"Fair Market Value" means, with respect to any asset of the
Borrower or any Subsidiary at any date, the open market cash purchase
price that an informed and willing purchaser would pay for such asset
in an arm's length transaction to a willing and informed owner under no
compulsion to sell.
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"Federal Funds Rate" means, for any day (the "accrual date"),
the rate per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on the accrual date, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if the accrual date is not a
Domestic Business Day, the Federal Funds Rate for the accrual date
shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next succeeding
Domestic Business Day, the Federal Funds Rate for the accrual date
shall be the average rate quoted to each of the Reference Banks on the
accrual date (or next preceding Domestic Business Day) on such
transactions as determined by the Administrative Agent.
"Fixed Rate Loan" means a Loan made pursuant to Section 2.03
that bears interest at a fixed rate per annum.
"GAAP" means generally accepted accounting principles
consistent with those applied in the preparation of the financial
statements referred to in Section 4.04(a). The parties hereto
acknowledge that generally accepted accounting principles may permit
the Borrower to make certain elections or may otherwise change from
time to time (such changed accounting principles being referred to
herein as the "New GAAP"). The Borrower agrees that in the event the
Borrower adopts the New GAAP, the Borrower shall promptly thereafter
notify the Administrative Agent of such adoption and furnish to the
Administrative Agent such explanations and/or reconciling statements,
if any, as the Administrative Agent or any Lender shall reasonably
request.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for
the purpose of assuring in any other manner the obligee of such Debt of
the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor" means A.T. Xxxxxx Coal Company, Inc., a Virginia
corporation and a wholly-owned Subsidiary of the Borrower, and its
successors.
"Interest Period" means, (i) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and
ending approximately one, two, three or six months thereafter, or, if
available by all of the Lenders, ending nine or twelve months
thereafter, as the Borrower may elect in the applicable Notice of
Borrowing and, (ii) with respect to any Competitive Bid Euro-Dollar
Rate Borrowing, the period commencing on the date of such Borrowing and
ending on the date specified in the offer pursuant to which the
Borrower has
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accepted such Borrowing under the competitive bidding procedure
described in Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the immediately preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) the Borrower shall not elect any Interest Period that
would otherwise extend beyond the Termination Date.
"Lender" means each lender listed on the signature pages
hereof and each Eligible Assignee that shall become a party hereto
pursuant to Sections 10.06 or 2.15.
"Lending Office" means, as to any Lender, its Domestic Lending
Office, its Euro-Dollar Lending Office or its Competitive Bid Lending
Office, as the context may require.
"Level I Period" has the meaning set forth in Section 1.04.
"Level II Period" has the meaning set forth in Section 1.04.
"Level III Period" has the meaning set forth in Section 1.04.
"Level IV Period" has the meaning set forth in Section 1.04.
"Level V Period" has the meaning set forth in Section 1.04.
"Level VI Period" has the meaning set forth in Section 1.04.
"LIBO Rate" means, for the Interest Period for each
Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan comprising
part of the same Borrowing, an interest rate per annum (rounded upward,
if necessary, to the nearest whole multiple of 1/100 of 1%) that
appears on the Dow Xxxxx Markets (Telerate) page 3750 (or such other
comparable page as may, in the opinion of the Administrative Agent,
replace such page for the purpose of displaying such rate) with
maturities comparable to such Interest Period at approximately 11:00
A.M. (London time) two Euro-Dollar Business Days prior to the first day
of such Interest Period. In the event that such a rate does not appear
on page 3750 of the Dow Xxxxx Telerate Screen, the LIBO Rate shall be
the average (rounded upwards, if necessary, to the nearest 1/100 or 1%)
of the rates per annum at which dollar deposits in immediately
available funds are offered to each of the Reference Banks in the
London interbank market as at or about 11:00 A.M. (New York City time)
two (2) Euro-Dollar Business Days prior to the beginning on such
Interest Period in an amount substantially equal to such Reference
Bank's Euro-Dollar Loan comprising part of such Borrowing or, in the
case of a Competitive Bid Borrowing, in an amount substantially equal
to the amount that would be the Reference Banks' respective Shares of
such Borrowing if such Borrowing were to be a Euro-Dollar Borrowing, in
each case, to be outstanding during such Interest Period and for a
period equal to such Interest Period.
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"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien on any asset which
it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan made by a
Lender pursuant to Section 2.01 or a Competitive Bid Loan made by a
Lender pursuant to Section 2.03. "Loans" means Base Rate Loans,
Euro-Dollar Loans or Competitive Bid Loans or any combination of the
foregoing.
"Loan Documents" means this Agreement and the Notes and any
other documents to be delivered thereunder or in connection therewith
and all amendments thereto and substitutions and replacements therefor
and modifications thereof.
"Material Adverse Change" means any material and adverse
change in the business, condition (financial or otherwise) or results
of operations or prospects of the Borrower and its Subsidiaries (taken
as a whole).
"Material Adverse Effect" means an effect that results in or
causes a material adverse effect (i) on the business, condition
(financial or otherwise) or operations or prospects of the Borrower and
its Subsidiaries, taken as a whole, which could reasonably be expected
to materially and adversely affect the ability of the Borrower or the
Guarantor to perform their respective obligations under the Loan
Documents at any time up to and including the Termination Date, or (ii)
on the legality, validity or enforceability of this Agreement or any of
the other Loan Documents.
"Material Plan" has the meaning set forth in Section 6.01(i).
"Material Subsidiary" means any Subsidiary of the Borrower
which (i) owns more than 5% of the assets and properties of the
Borrower and its Subsidiaries, determined on a consolidated basis in
conformity with GAAP, or (ii) accounts for more than 5% of Consolidated
EBITDA.
"Moody's" means Xxxxx'x Investors Service, Inc., or its
successors.
"Multiemployer Plan" has the meaning set forth in Sections
4201 et seq. of ERISA.
"Note" has the meaning set forth in Section 2.05(c) and, with
respect to any Competitive Bid Loans, means a Competitive Bid Loan
Note, as the case may be.
"Notice of Borrowing" has the meaning set forth in Section
2.02 and, with respect to any Competitive Bid Loans, means a Notice of
Competitive Bid Borrowing, as the case might be.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a)(i).
"Obligations" has the meaning specified in Section 9.01.
"Other Taxes" has the meaning set forth in Section 10.03(b).
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"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity
or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by
the Borrower or any subsidiary for employees of the Borrower or any
Subsidiary or (ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer,
at least one of which is not a member of the Controlled Group, makes
contributions and to which the Borrower or any Subsidiary is then
making or accruing an obligation to make contributions or has within
the preceding five plan years made contributions.
"Production Payment" means any arrangement providing for the
sale, transfer or other disposition of (a) minerals (including coal and
hydrocarbons) until the transferee thereof shall realize therefrom a
specified amount of money (however determined) or a specified amount of
such minerals (however determined) or (b) any interest in minerals
(including coal and hydrocarbons) of the character commonly referred to
as a "production payment".
"Proxy Statement" means the Proxy Statement/Information
Statement of Fluor Corporation, dated November 1, 2000 relating to the
Spin-Off.
"Reference Banks" means Citibank and certain other Lenders to
be determined by the Administrative Agent, with the approval of the
Borrower.
"Register" shall have the meaning set forth in Section
2.05(a).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time at least four (4) Lenders
holding at least 50% of the aggregate unpaid principal amount of the
Loans (excluding Competitive Bid Loans) or, if no such Loans shall be
outstanding, having at least 50% of the aggregate amount of the
Commitments.
"Requirement of Law" means, with respect to any Person, the
common law and all federal, state, local and foreign laws, rules and
regulations, orders, judgments, decrees and other legal requirements or
determinations of any Governmental Authority or arbitrator, applicable
to or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
"S&P" means Standard and Poor's Ratings Group, a division of
XxXxxx-Xxxx Incorporated, or its successors.
"Share" means, with respect to each Lender, a fraction the
numerator of which is such Lender's Commitment and the denominator of
which is the aggregate amount of the Commitments.
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"SPV" has the meaning set forth in Section 10.06(f)(i).
"Spin-Off" means the distribution of shares of common stock of New
Fluor Corporation (as such term is defined in the Proxy Statement) to
shareholders of existing Fluor Corporation (now renamed Xxxxxx Energy
Company), as described in the Proxy Statement.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned or controlled by the
Borrower or one or more Subsidiaries, or by the Borrower and one or more
Subsidiaries.
"Taxes" shall have the meaning set forth in Section 10.03(b).
"Termination Date" means, subject to Section 2.15, the earlier of (i)
the date that is three years following the Effective Date (or if such day
is not a Euro-Dollar Business Day, the preceding Euro-Dollar Business Day),
as such date may be extended in accordance with Section 2.15, or (ii) the
date on which the Commitments shall have been reduced to zero pursuant to
Sections 2.09, 2.10 or 6.01; provided, however, that the Termination Date
of any Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.15 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of this
Agreement.
"Type" means, with reference to a Loan, a Base Rate Loan, a
Euro-Dollar Loan or a Competitive Bid Loan.
"Utilization Fee" has the meaning specified in Section 2.08(b).
"Utilization Fee Rate" means a rate per annum equal to (i) 0.125%
during a Level I Period, Level II Period or Level III Period, and (ii)
0.250% during a Level IV Period, Level V Period or Level VI Period.
"Withdrawal Liability" has the meaning set forth in Sections 4201 et
seq. of ERISA.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP.
Section 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Lenders to be made to the Borrower pursuant
to Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans, a "Base Rate Borrowing" is a Borrowing comprised
of Base Rate Loans and a "Competitive Bid Borrowing" is a Borrowing comprised of
Competitive Bid Loans).
Section 1.04. Pricing Levels. For purposes of this Agreement, the
following terms have the following meanings, subject to the concluding paragraph
of this Section 1.04:
"Level I Period" means a period during which the long-term senior
unsecured debt rating of the Borrower is equal to or better than (i) A- by
S&P or (ii) A3 by Xxxxx'x.
10
"Level II Period" means a period (other than a Level I Period) during
which the long-term senior unsecured debt rating of the Borrower is equal
to or better than (i) BBB+ by S&P or (ii) Baa1 by Xxxxx'x.
"Level III Period" means a period (other than a Level I Period or a
Level II Period) during which the long-term senior unsecured debt rating of
the Borrower is equal to or better than (i) BBB by S&P or (ii) Baa2 by
Xxxxx'x.
"Level IV Period" means a period (other than a Level I Period, a Level
II Period or a Level III Period) during which the long-term senior
unsecured debt rating of the Borrower is equal to or better than (i) BBB-
by S&P and (ii) Baa3 by Xxxxx'x.
"Level V Period" means a period (other than a Level I Period, a Level
II Period, a Level III Period or a Level IV Period) during which the
long-term senior unsecured debt rating of the Borrower is equal to or
better than (i) BBB-by S&P or (ii) Baa3 by Xxxxx'x.
"Level VI Period" means any period which is not a Level I Period, a
Level II Period, a Level III Period, a Level IV Period or a Level V Period.
The credit ratings to be used for purposes of this Section 1.04 are those
assigned to the long-term senior unsecured debt of the Borrower without
third-party credit enhancement. Any rating assigned to any other debt of the
Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
If the Borrower is split-rated and the ratings differential is one level,
the higher of the two ratings will apply (e.g., A-/Baa1 results in a Level I
Period and BBB-/Baa2 results in a Level III Period). If the Borrower is
split-rated and the ratings differential is more than one level, the rating one
level above the lower of the two ratings shall be used (e.g., A-/Baa2 results in
Level II Period and BBB-/A3 results in a Level III Period). If, however, at any
date the Borrower's long-term senior unsecured debt is not rated by both S&P and
Xxxxx'x, then a Level VI Period shall apply.
Section 1.05. Certain Terms.
(a) The words "herein," "hereof" and "hereunder" and similar words
refer to this Agreement as a whole, and not to any particular Article, Section,
subsection or clause in, this Agreement.
(b) References in this Agreement to an Exhibit, Schedule, Article,
Section, subsection or clause refer to the appropriate Exhibit or Schedule to,
or Article, Section, subsection or clause in this Agreement.
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. If the prior written consent of the
Requisite Lenders is required hereunder for an amendment, restatement,
supplement or other modification to any such agreement and such consent is not
obtained, references in this Agreement to such agreement shall be to such
agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect at the time any such reference is
operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
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(f) The terms "Lender" and "Administrative Agent" include their
respective successors.
ARTICLE II
THE CREDITS
Section 2.01. Commitments to Lend. During the period from and
including the Effective Date, to but not including the Termination Date, each
Lender severally agrees, on the terms and conditions set forth in this
Agreement, to lend to the Borrower pursuant to this Section 2.01 from time to
time amounts such that the aggregate principal amount of Loans by such Lender at
any one time outstanding shall not exceed the amount set forth opposite such
Lender's name on Schedule II hereof or, if such Lender has entered into any
Assignment and Acceptance as set forth in the recorded Assignment and
Acceptance, as such amount may be reduced pursuant to Section 2.09 or Section
2.10 or increased pursuant to Section 2.15 or assigned pursuant to Section 10.06
(such Lender's "Commitment"). Each Borrowing under this Section 2.01 shall be in
an aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount of the
unused portion of the Commitments of all of the Lenders) and shall be made from
the several Lenders ratably in proportion to their respective Commitments (other
than Competitive Bid Loans). Amounts required to be repaid pursuant to Section
2.10 shall not be reborrowed, and amounts repaid pursuant to Section 8.02 shall
not be reborrowed except as provided therein. Except as otherwise provided in
this Agreement, the Borrower may borrow under this Section 2.01, repay, or, to
the extent permitted by Section 2.11, prepay Loans and reborrow (other than
Competitive Bid Loans) at any time prior to but not including the Termination
Date under this Section 2.01. Within the limits of each Lender's Commitment, the
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the Competitive Bid Loans
then outstanding, which deemed usage shall be allocated among the Lenders
according to their respective Shares (such deemed usage being a "Competitive Bid
Loan Reduction").
Section 2.02. Notice of Borrowings.
(a) The Borrower shall give the Administrative Agent notice in the
form of Exhibit B-1 (a "Notice of Borrowing") by telecopier, confirmed
immediately in writing, not later than (x) 11:00 A.M. (New York City time) on
the date of each Base Rate Borrowing, and (y) 12:00 noon (New York City time) on
the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans;
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period; and
(v) the Borrower's long-term senior unsecured debt ratings from
S&P and Xxxxx'x in effect on the date of such Borrowing.
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(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select a Euro-Dollar Loan for any
Borrowing or with respect to the Conversion or continuance of any Borrowing
if the aggregate amount of such Borrowing or such Conversion or continuance
is less than $5,000,000; and
(ii) there shall be no more than five Interest Periods relating to
Borrowings consisting of Euro-Dollar Loans outstanding at any time.
Section 2.03. Competitive Bid Loans.
(a) Each Lender severally agrees that the Borrower may make
Competitive Bid Borrowings under this Section 2.03 from time to time on any
Domestic Business Day during the period from the date hereof until the date
occurring 30 days prior to the Termination Date in the manner set forth below;
provided, however, that, following the making of each Competitive Bid Borrowing,
the aggregate amount of the Loans then outstanding shall not exceed the
aggregate amount of the Commitments of the Lenders (computed without regard to
any Competitive Bid Loan Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by telecopier,
confirmed immediately in writing, a notice of a Competitive Bid Borrowing
(a "Notice of Competitive Bid Borrowing"), in the form of Exhibit B-2,
specifying therein the requested (w) date of such proposed Competitive Bid
Borrowing, (x) aggregate amount of such proposed Competitive Bid Borrowing,
(y) in the case of a Competitive Bid Borrowing consisting of Competitive
Bid Euro-Dollar Rate Loans, the Interest Period therefor, or in the case of
a Competitive Bid Borrowing consisting of Fixed Rate Loans, maturity date
for repayment of each Fixed Rate Loan to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring 30 days after the date of such Competitive Bid Borrowing or
later than the Termination Date) and the interest payment date or dates
relating thereto, and (z) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than 10:30 A.M. (New York City time)
(A) at least one Domestic Business Day prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall specify in the Notice of
Competitive Bid Borrowing that the Loans comprising such Competitive Bid
Borrowing shall be Fixed Rate Loans and (B) at least four Domestic Business
Days prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that the
Loans comprising such Competitive Bid Borrowing shall be Competitive Bid
Euro-Dollar Rate Loans. Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower, except as provided in Section
2.03(a)(iii)(x). The Administrative Agent shall in turn promptly notify
each Lender of each request for a Competitive Bid Borrowing received by it
from the Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, offer, irrevocably, to make one or more Competitive Bid Loans to the
Borrower as part of such proposed Competitive Bid Borrowing, by notifying
the Administrative Agent (which shall give prompt notice thereof to the
Borrower) (A) before 9:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Loans and (B) before 10:00 A.M. (New
York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Competitive Bid Euro-Dollar Rate Loans, of (x) the minimum
and maximum amount of Fixed Rate Loans (if any) which such Lender is
prepared to make as part of such requested Competitive Bid Borrowing and
the fixed rate of interest per annum which such
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Lender is prepared to offer in respect thereof, (y) the minimum and maximum
amount of Competitive Bid Euro-Dollar Rate Loans (if any) which such Lender
is prepared to make as part of such requested Competitive Bid Borrowing and
the interest margin (expressed as a percentage rate per annum) to be added
to or subtracted from the Euro-Dollar Rate and the Interest Period
corresponding thereto which such Lender is prepared to offer in respect
thereof and (z) such Lender's Competitive Bid Lending Office with respect
to such Competitive Bid Loans; provided, however, that the amounts of such
proposed Competitive Bid Loans offered by such Lender may, subject to the
proviso to the first sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any, and provided, further, that if the Administrative Agent
in its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer at least 30
minutes before the time and on the date on which notice of such election is
to be given to the Administrative Agent, by the other Lenders. If any
Lender shall elect not to make such an offer in respect of any proposed
Competitive Bid Borrowing, such Lender shall so notify the Administrative
Agent thereof before the relevant times referred to in clauses (A) and (B)
of this paragraph (ii) and such Lender shall not be obligated to, and shall
not, make any Competitive Bid Loan as part of such Competitive Bid
Borrowing; provided, however, that the failure by any Lender to give such
notice shall not cause such Lender to be obligated to make any Competitive
Bid Loan as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, (A) before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Loans, and (B)
before 11:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of Competitive Bid Euro-Dollar Rate Loans, either:
(x) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Administrative Agent of the amount of each
Competitive Bid Loan (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Administrative Agent on behalf of such
Lender for such Competitive Bid Loan pursuant to paragraph (ii) above)
to be made by each Lender as part of such Competitive Bid Borrowing,
and reject any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Administrative Agent notice to that effect;
provided, however, that if the Borrower elects to accept the offers
made by any Lender or Lenders to make Competitive Bid Loans, it shall
accept such offers in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more Lenders have offered
the same interest rate, the amount to be borrowed at such interest
rate will be allocated among such Lenders in proportion to the amount
that each such Lender offered at such interest rate and, provided,
further, that the aggregate amount of offers so accepted by the
Borrower shall not exceed the amount of respective Competitive Bid
Loans proposed by the Borrower in the relevant Notice of Competitive
Bid Borrowing.
(iv) If the Borrower notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Administrative Agent shall give prompt notice thereof to the
Lenders and such Competitive Bid Borrowing shall not be made.
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(v) If the Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender
that has made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by the Borrower, (B) each
Lender that is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Loan
to be made by such Lender as part of such Competitive Bid Borrowing,
and (C) each Lender that is to make a Competitive Bid Loan as part of
such Competitive Bid Borrowing, upon receipt, that the Administrative
Agent has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender that is to
make a Competitive Bid Loan as part of such Competitive Bid Borrowing
shall, before 11:00 A.M. (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent in same day funds, such Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Borrower at the location specified by the
Borrower in its Notice of Competitive Bid Borrowing. Promptly after
each Competitive Bid Borrowing the Administrative Agent will notify
each Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Loan Reduction and the dates upon which
such Competitive Bid Loan Reduction commenced and will terminate.
(vi) If the Borrower notifies the Administrative Agent that
it accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the
date specified in the related Notice of Competitive Bid Borrowing for
such Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Competitive Bid Loan to be made by such Lender
as part of such Competitive Bid Borrowing when such Competitive Bid
Loan, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03; provided, however, that a Competitive Bid Borrowing shall not be
made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made a Competitive Bid Loan, on the maturity
date of each Competitive Bid Loan (such maturity date being that specified by
the Borrower for repayment of such Competitive Bid Loan in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Loan Note evidencing such Competitive Bid Loan),
the then unpaid principal amount of such Competitive Bid Loan. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid Loan
unless, and then only on the terms, specified by the Borrower for such
15
Competitive Bid Loan in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Loan Note evidencing such Competitive Bid Loan.
(e) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Loan from the date of such Competitive Bid Loan to the date
the principal amount of such Competitive Bid Loan is repaid in full, at the rate
of interest for such Competitive Bid Loan specified by the Lender making such
Competitive Bid Loan in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by the Borrower for such Competitive Bid Loan in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, or as
otherwise provided in the Competitive Bid Loan Note evidencing such Competitive
Bid Loan. Upon the occurrence and during the continuance of an Event of Default
the Borrower shall pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Loan owing to a Lender, payable in arrears on
the date or dates interest is payable thereon, at a rate per annum equal at all
times to two percent per annum above the rate of interest per annum required to
be paid on such Competitive Bid Loan pursuant to this paragraph (e), unless
otherwise agreed between the Borrower and such Lender.
(f) The Debt of the Borrower resulting from each Competitive Bid Loan
made to the Borrower as part of a Competitive Bid Borrowing shall, if requested
by any Lender making such Competitive Bid Loan, be evidenced by a separate
Competitive Bid Loan Note of the Borrower payable to the order of such Lender.
Section 2.04. Notice to Lenders; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of such Lender's
ratable share (if any) of such Borrowing.
(b) Not later than 2:00 P.M. (New York City time) on the date of each
Borrowing (other than a Competitive Bid Loan), each Lender shall (except as
provided in subsection (c) of this Section) make available its ratable share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address specified in or pursuant to
Section 10.01. Unless the Administrative Agent determines that any applicable
condition specified in Article III has not been satisfied, the Administrative
Agent will make the funds so received from the Lenders promptly available to the
Borrower at the Administrative Agent's aforesaid address.
(c) If any Lender makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Lender,
such Lender shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Lender to
the Administrative Agent as provided in subsection (b), or remitted by the
Borrower to the Administrative Agent as provided in Section 2.12, as the case
may be.
(d) Except as specifically provided in Section 8.01 to the contrary,
each Notice of Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing which the related Notice of Borrowing specifies is to
be comprised of Euro-Dollar Loans, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable condition set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds
16
acquired by such Lender to fund the Loan to be made by such Lender as part of
such Borrowing when such Loan, as a result of such failure, is not made on such
date.
(e) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's Share of such Borrowing,
which failure may constitute a breach of such Lender's obligations under this
Agreement, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (b) of this Section 2.04 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such share available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Loan as part of such Borrowing
for purposes of this Agreement.
(f) The failure of any Lender to make the Loan to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Loan on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on the date of any Borrowing.
Section 2.05. Register; Optional Notes.
(a) The Administrative Agent shall maintain a register for the
recordation of the names and addresses of the Lenders and the Commitment of and
the principal amount of the Loans owing to each Lender from time to time (the
"Register") and shall retain a copy of each assignment delivered to and accepted
by it. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent, and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(b) The Register maintained by the Administrative Agent shall include
a control account and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date, amount and tenor, as
applicable, of each Borrowing, the type of Borrowing and the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
and (iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender's share thereof.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from Loans owing to such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder. The Borrower agrees that upon notice by any Lender to the
Borrower (with a copy of such notice to the Administrative Agent) to the effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement, or otherwise) the Base Rate Loans or Euro-Dollar Loans
owing to, or to be made by, such Lender, the Borrower shall promptly execute and
deliver to such Lender a Note in the form of
17
(c) Exhibit A-1 or Exhibit A-2, as applicable (each a "Note"; collectively, the
"Notes"), registered in the name of such Lender, (i) other than in the case of a
Competitive Bid Loan, in a principal amount equal to the aggregate principal
amount of the Commitment of such Lender and, (iii) in the case of a Competitive
Bid Loan, in accordance with Section 2.03; provided, however, that the execution
and delivery of such Notes shall not be a condition precedent to making of any
Borrowing under this Agreement.
SECTION 2.06. Voluntary Conversion or Continuation of Loans.
(a) The Borrowers may on any Domestic Business Day, upon notice given
to the Administrative Agent not later than 12:00 noon (New York City time) on
the third Euro-Dollar Business Day prior to the date of the proposed conversion
or continuance (a "Notice of Conversion/Continuation"), in substantially the
form of Exhibit F , and subject to the provisions of Section 2.02(b) and Article
VIII, (1) Convert all Loans (other than Competitive Bid Loans) of one Type
comprising the same Borrowing into Loans (other than Competitive Bid Loans) of
another Type and (2) upon the expiration of any Interest Period applicable to
Loans which are Euro-Dollar Loans, continue all (or, subject to Section 2.02(b)
and Article VIII, any portion of) such Loans as Euro-Dollar Rate Loans and the
succeeding Interest Period(s) of such continued Loans shall commence on the last
day of the Interest Period of the Loans to be continued; provided, however, that
any Conversion of any Euro-Dollar Loans into Base Rate Loans shall be made on,
and only on, the last day of an Interest Period for such Euro-Dollar Loans
unless the Borrower simultaneously pays all amounts required to be paid pursuant
to Section 10.03(d). Each such Notice of Conversion/Continuation shall, within
the restrictions specified above, specify (i) the date of such continuation or
Conversion, (ii) the Loans (or, subject to Section 2.02(b), any portion thereof)
to be continued or Converted, (iii) if such continuation is of, or such
Conversion is into, Euro-Dollar Loans, the duration of the Interest Period for
each such Loan, and (iv) in the case of a continuation of or a Conversion into a
Euro-Dollar Loan, that no Event of Default has occurred and is continuing.
(b) If upon the expiration of the then existing Interest Period
applicable to any Loan which is a Euro-Dollar Loan, the Borrowers shall not have
delivered a Notice of Conversion/Continuation in accordance with this Section
2.06, then such Loan shall upon such expiration automatically be Converted to a
Base Rate Loan.
(c) After the occurrence of and during the continuance of an Event of
Default, the Borrowers may not elect to have a Loan be made or continued as, or
Converted into, a Euro-Dollar Loan after the expiration of any Interest Period
then in effect for that Loan and any Euro-Dollar Loans then in effect shall
automatically be converted to a Base Rate Loan at the expiration of the then
existing Interest Period applicable to any such Euro-Dollar Rate Loan.
SECTION 2.07. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day. Such
interest shall be payable in arrears quarterly on the last day of each March,
June, September and December during such period and on such date as such Base
Rate Loan shall be Converted or paid in full.
(b) (i) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the applicable Euro-Dollar Rate. Such interest and the
Utilization Fee shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
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(ii) The Borrower shall pay to each Lender additional interest
on the unpaid principal amount of each Euro-Dollar Loan of such Lender,
from the date of such Loan until such principal amount is paid in full, at
an interest rate per annum equal at all times to the remainder (rounded
upwards, if necessary, to the next higher 1/100 of 1%) obtained by
subtracting (i) the LIBO Rate for the Interest Period for such Loan, from
(ii) the rate obtained by dividing such LIBO Rate by a percentage equal to
100% minus the Euro-Dollar Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is payable on such
Loan. Such additional interest shall be determined by such Lender and
notified to the Borrower through the Administrative Agent.
(c) Notwithstanding the rates of interest specified in this Section
2.07 or elsewhere herein, effective immediately upon the occurrence of an Event
of Default, and for as long thereafter as such Event of Default shall be
continuing, the principal balance of all Loans (other than Competitive Bid
Loans) shall bear interest, payable on demand, for each day from and including
the date payment thereof was due, to but excluding the date of actual payment,
at a rate per annum equal to the sum of 2% plus the applicable interest rate
then in effect for such day.
(d) The Administrative Agent shall determine each interest rate
applicable (pursuant to this Agreement) to the Loans hereunder. The
Administrative Agent shall give prompt notice to the Borrower and the Lender by
telecopier of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
SECTION 2.08. Facility Fees; Utilization Fee.
(a) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders in accordance with their respective Shares, a facility
fee on the daily average aggregate amount of the Commitments prior to the
Termination Date (including both the portion thereof that is used and the
portion thereof that is unused) at the rate of (i) 0.225% per annum during each
Level I Period, (ii) 0.325% per annum during each Level II Period, (iii) 0.350%
per annum during each Level III Period, (iv) 0.375% per annum during each Level
IV Period, (v) 0.425% per annum during each Level V Period, and (vi) 0.475% per
annum during each Level VI Period. Such facility fee shall accrue from and
including the Effective Date or, in the case of any Assuming Lender or other
Lender that becomes party hereto in accordance with Section 10.06, from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender, to but excluding the Termination Date, and shall be payable (i)
quarterly in arrears on each March 31, June 30, September 30 and December 31
prior to the Termination Date and (ii) on the Termination Date.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender for each date prior to the Termination Date on which the
aggregate outstanding Loans exceed 33% of the Commitments, a fee on the
aggregate amount of the outstanding Loans at the Utilization Fee Rate (the
"Utilization Fee").
SECTION 2.09. Optional Termination or Reduction of Commitments. The
Borrower may at any time, upon at least three Domestic Business Days' notice to
the Administrative Agent, terminate, or proportionately reduce by an aggregate
amount of $10,000,000 or any larger multiple of $1,000,000, the aggregate amount
of the Commitments in excess of the aggregate outstanding principal amount of
the Loans. If the Commitments are terminated in their entirety, all accrued but
unpaid fees under Section 2.08 shall be payable on the effective date of such
termination. Once terminated, a Commitment may not be reinstated.
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SECTION 2.10. Mandatory Termination of Commitments.
(a) The Commitments shall terminate on the Termination Date, and any
Loans (other than Competitive Bid Loans) then outstanding (together with accrued
interest thereon) shall be due and payable on such date. The aggregate
outstanding principal amount of the Loans shall at no time exceed the aggregate
of the Commitments. If on any date on which the Commitments are reduced the
aggregate outstanding principal amount of the Loans exceeds the aggregate of the
Commitments as so reduced, then the Borrower shall be obligated to repay
(together with accrued interest to the date of repayment) on such date a
principal amount of the Loans equal to such excess.
(b) Each Competitive Bid Loan shall terminate on the maturity date
specified in the Borrower's notice requesting such Competitive Bid Loan.
SECTION 2.11. Optional Prepayments.
(a) The Borrower may, upon same day's notice to the Administrative
Agent, prepay any Base Rate Loan in whole at any time, or from time to time in
part in amounts aggregating $10,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment.
(b) The Borrower may, upon at least two Euro-Dollar Business Days'
notice to the Administrative Agent, prepay the Euro-Dollar Loans comprising any
Borrowing in whole at any time, or from time to time in part in amounts
aggregating $10,000,000 or any larger multiple of $1,000,000, by paying the sum
of (i) the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment, plus (ii) all amounts required to be paid pursuant to
Section 10.03(d).
(c) Competitive Bid Loans shall not be prepaid except as may be
agreed by the Borrower and the affected Lender.
(d) Upon receipt of a notice of prepayment pursuant to this Section
2.11, the Administrative Agent shall promptly notify each Lender of the contents
thereof and of such Lender's ratable share of such prepayment and such notice
shall not thereafter be revocable by the Borrower. Each optional prepayment
shall be applied to prepay ratably the Loans of the several Lenders included in
such Borrowing.
SECTION 2.12. General Provisions as to Payments. The Borrower shall
make each payment of principal of and interest on the Loans, and of additional
compensation hereunder, not later than 3:00 P.M. (New York City time) on the
date when due, in federal or other funds immediately available in New York City,
to the Administrative Agent at its address referred to in Section 10.01. The
Administrative Agent will promptly distribute to each Lender its ratable share
of each such payment received by the Administrative Agent for the account of the
Lenders. Payments in respect of each Competitive Bid Loan Borrowing shall be
distributed to each Lender participating in such Borrowing on a pro rata basis
in accordance with the respective principal amounts of the Competitive Bid Loans
comprising such Borrowing. Whenever any payment of fees or principal of or
interest on the Base Rate Loans, or of additional compensation, shall be due on
a day which is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day, and such extension of
time shall in such case be included in the computation of payment of interest or
additional compensation. Whenever any payment of principal of or interest on the
Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless
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such Euro-Dollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar Business Day.
If the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 2.05(b), from and after
the effective date specified in such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
SECTION 2.13. Computation of Interest and Fees. Interest based on the
Base Rate (unless computed by reference to the Federal Funds Rate) shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the first day but
excluding the last day). All other interest hereunder (including the Base Rate
if computed by reference to the Federal Funds Rate) shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). All fees hereunder shall
be computed on the basis of a year of 360 days and 30 day months (including the
first day but excluding the last day).
SECTION 2.14. Place of Loans. All Loans shall be disbursed and be
payable at the office of the Administrative Agent, at its address set forth in
Section 10.01.
SECTION 2.15. Extension of Commitments.
(a) The Borrower may, upon not less than 60 days (but no later than
45 days prior to the then existing Termination Date) notice prior to the then
current Termination Date to the Administrative Agent (which shall notify each
Lender of receipt of such request), propose to extend the Termination Date for
an additional one year measured from the Termination Date then in effect. Each
Lender shall endeavor to respond to such request, whether affirmatively or
negatively (such determination to be in the individual and sole discretion of
such Lender), by written notice to the Administrative Agent no earlier than 30
days prior to the then existing Termination Date (but in any event no later than
20 days prior to the then existing Termination Date). The Administrative Agent
will notify the Borrower, in writing, of the Lenders' responses no later than 15
days prior to the then existing Termination Date. Subject to the execution by
the Borrower, the Administrative Agent and such Lenders of a duly completed
Extension Agreement in substantially the form of Exhibit E hereto, the
Termination Date applicable to the Commitment of each Lender so affirmatively
notifying the Borrower and the Administrative Agent (each a "Consenting Lender")
shall, effective as at the Termination Date (the "Extension Date"), be extended
for the period specified above; provided that no Termination Date of any Lender
shall be extended unless by the date 15 days prior to the Termination Date then
in effect Lenders having at least 50% in aggregate amount of the Commitments in
effect at the time any such extension is requested shall have elected so to
extend their Commitments. Any Lender which does not give such notice to the
Borrower and the Administrative Agent by the date 15 days prior to the
Termination Date (each, a "Non-Consenting Lender") then in effect shall be
deemed to have elected not to extend as requested, and the Commitment of each
non-extending Lender shall terminate on its Termination Date determined without
giving effect to such requested extension.
(b) If any Lender party to this Agreement shall not elect to extend
its Commitment pursuant to subsection (a) of this Section 2.15, the Borrower may
designate another lender or other lenders (which may be, but need not be, one or
more of the existing Lenders, but which in each case shall be an Eligible
Assignee), which at the time agree to become a party to this Agreement (each, an
"Assuming Lender").
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(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.15, the Administrative Agent shall
promptly so notify the Consenting Lenders, and each Consenting Lender may, in
its sole discretion, give written notice to the Administrative Agent not later
than 10 days prior to the Termination Date then in effect of the amount of the
Non-Consenting Lenders' Commitments for which it is willing to accept an
assignment. If the Consenting Lenders notify the Agent that they are willing to
accept assignments of Commitments in an aggregate amount that exceeds the amount
of the Commitments of the Non-Consenting Lenders, such Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments in
such amount as are agreed between the Borrower and the Administrative Agent. If
after giving effect to the assignments of Commitments described above there
remains any Commitments of Non-Consenting Lenders, the Borrower may arrange for
one or more Consenting Lenders or other Eligible Assignees as Assuming Lenders
to assume, effective as of the Extension Date, any Non-Consenting Lender's
Commitment and all of the obligations of such Non-Consenting Lender under this
Agreement thereafter arising, without recourse to or warranty by, or expense to,
such Non-Consenting Lender; provided, however, that the amount of the Commitment
of any such Assuming Lender as a result of such substitution shall in no event
be less than $10,000,000 unless the amount of the Commitment of such
Non-Consenting Lender is less than $10,000,000, in which case such Assuming
Lender shall assume all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall
have paid to such Non-Consenting Lender (A) the aggregate
principal amount of, and any interest accrued and unpaid to the
effective date of the assignment on, the outstanding Loans, if
any, of such Non-Consenting Lender plus (B) any accrued but
unpaid facility fees owing to such Non-Consenting Lender as of
the effective date of such assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting
Lender, and all other accrued and unpaid amounts owing to such
Non-Consenting Lender hereunder, as of the effective date of such
assignment shall have been paid to such Non-Consenting Lender;
and
(iii) with respect to any such Assuming Lender, the
applicable processing and recordation fee required under Section
10.06(b)(i) for such assignment shall have been paid;
provided further that such Non-Consenting Lender's rights and obligations under
Sections 8.03 and 10.03, shall survive such substitution as to matters occurring
prior to the date of substitution. At least three Domestic Business Days prior
to any Extension Date, (A) each such Assuming Lender, if any, shall have
delivered to the Borrower and the Administrative Agent an Assignment and
Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting
Lender, the Borrower and the Administrative Agent, and (B) each Non-Consenting
Lender being replaced pursuant to this Section 2.15 shall have delivered to the
Administrative Agent any Note or Notes held by such Non-Consenting Lender. Upon
the payment or prepayment of all amounts referred to in clauses (i), (ii) and
(iii) of the immediately preceding sentence, each such Consenting Lender or
Assuming Lender, as of the Extension Date, will be substituted for such
Non-Consenting Lender under this Agreement and shall be a Lender for all
purposes of this Agreement, without any further acknowledgement by or the
consent of the other Lenders, and the obligations of each such Non-Consenting
Lender hereunder shall, by the provisions hereof, be released and discharged.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND BORROWINGS
Section 3.01. Conditions Precedent to Effectiveness. The effectiveness
of the Agreement is subject to the receipt by the Administrative Agent of
executed counterparts of this Agreement by the Borrower and each Lender and the
receipt by the Administrative Agent of a sufficient number of copies of each of
the following on or before the Effective Date, each, unless otherwise noted,
dated the Effective Date, and in form and substance satisfactory to the
Administrative Agent:
(a) (i) a copy of the Borrower's Certificate of Incorporation,
certified as of a recent date by the Secretary of State of the State of
Delaware, a copy of the Borrower's By-Laws, certified by the Secretary or an
Assistant Secretary of the Borrower, and good standing certificates for the
Borrower from the Secretary of State of the State of Delaware and the Virginia
State Corporation Commission and
(ii) a copy of the Guarantor's Articles of Incorporation,
certified as of a recent date by the Virginia State Corporation Commission, a
copy of the Guarantor's By-Laws, certified by the Secretary or an Assistant
Secretary of the Guarantor, and a good standing certificate for the Guarantor
from the Virginia State Corporation Commission;
(b) (i) an opinion of Hunton & Xxxxxxxx, counsel for the Borrower,
substantially in the form of Exhibit C-1 hereto, dated as of the Effective Date,
and
(ii) an opinion of the Senior Counsel of the Borrower
substantially in the form of Exhibit C-2 hereto, dated as of the Effective Date;
(c) a certificate signed by a senior vice president, the chief
financial officer or the treasurer of the Borrower, to the effect that the
Spin-Off has been consummated in accordance with the description thereof set
forth in the Proxy Statements and evidence of a favorable ruling by the Internal
Revenue Service as to the Spin-Off;
(d) the Notes, if requested by the Lenders;
(e) an opinion of counsel from Weil, Gotshal & Xxxxxx LLP, counsel
for the Administrative Agent, in the form of Exhibit D hereto, dated as of the
date hereof;
(f) all documents (including an incumbency certificate and
certification by the secretary of the Borrower of board resolutions) it may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validity of this Agreement, and any other matter relevant
hereto, all in form and substance satisfactory to the Administrative Agent;
(g) the Borrower's Pro Formas;
(h) a pro forma compliance certificate with respect to the financial
covenants contained in Section 5.07 executed by the Borrower's chief financial
officer, in form and substance satisfactory to the Administrative Agent;
23
(i) copies of the Distribution Agreement and the Tax Sharing
Agreement (each as defined in the Proxy Statement) certified by an authorized
officer of the Borrower as being in full force and effect;
(j) a certificate of an authorized officer of the Borrower to the
effect that since October 31, 1999 there has been no Material Adverse Change;
and
(k) evidence of the completion of the reserve and operational audits
by Xxxx International Mining Consultants, in scope and with results reasonably
determined satisfactory to the Administrative Agent and the Lenders.
Section 3.02. Conditions Precedent to Each Borrowing and Extension of
Commitment. The obligation of each Lender to make a Loan on the occasion of a
Borrowing (including the initial Borrowing) and the extension of any Lender's
Commitment pursuant to Section 2.15 shall be subject to the further conditions
precedent that:
(a) the Administrative Agent shall have received a Notice of
Borrowing or Competitive Bid Notice of Borrowing, as the case may be, with
respect thereto in accordance with Section 2.02 or Section 2.03, as the case may
be;
(b) In respect of any Competitive Bid Borrowing the Administrative
Agent shall have received a Competitive Bid Loan Note, if requested, payable to
the order of each Lender which is to make a Competitive Bid Loan in a principal
amount equal to the aggregate Competitive Loans to be made by such Lender and to
be evidenced thereby in accordance with Section 2.03;
(c) on the date of such Borrowing the following statements shall be
true (and each of the giving of the Notice of Borrowing or Notice of Competitive
Bid Borrowing, as applicable, and the acceptance by the Borrower of the proceeds
of such Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing such statements are true):
(i) except to the extent provided below, the representations
and warranties of the Borrower contained in Article IV (other than in
Section 4.04(c)) are true and correct in all material respects on and
as of the date of such Borrowing, before and after giving effect to
such Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, except to the extent that any such
representation or warranty expressly relates only to an earlier date,
in which case they were correct as of such earlier date; provided that
the representation contained in Section 4.04(c) need only be true and
correct on the Effective Date and on each date of an extension of any
Lender's Commitment pursuant to Section 2.15;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default;
(iii) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans will not exceed the aggregate amount of
the Commitments; and
(iv) after applying the proceeds of such Borrowing, not more
than 25% of the value (as determined by any reasonable method
permitted by Regulation U) of the Borrower's assets subject to the
provisions of Sections 5.08 and 5.09 shall be represented by "margin
stock" (as defined in Regulation U).
24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.01. Corporate Existence and Power; Compliance with Law.
(a) The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
(b) Each of the Borrower and its Subsidiaries is in compliance with
all applicable Requirements of Law except where the failure to be in compliance
would not in the aggregate have a Material Adverse Effect and has all necessary
permits, consents or approvals from or by, has made all necessary filings with,
and has given all necessary notices to, each Governmental Authority having
jurisdiction, to the extent required for such ownership, operation and conduct,
except for licenses, permits, consents, approvals or filings which can be
obtained or made by the taking of ministerial action to secure the grant or
transfer thereof or the failure to obtain or make would not in the aggregate
have a Material Adverse Effect.
Section 4.02. Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by the Borrower and the Guarantor of
this Agreement and by the Borrower of the Notes (i) are within the Borrower's
and Guarantor's corporate power, as applicable, (ii) have been duly authorized
by all necessary corporate action, (iii) require no action by or in respect of,
or filing with, any Governmental Authority, and (iv) do not contravene or
constitute a default under any provision of Requirement of Law, or of the
Certificate of Incorporation or By-laws of the Borrower or the Guarantor, as
applicable, or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or the Guarantor or result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
Section 4.03. Binding Effect. This Agreement and the other Loan
Documents constitute legal, valid and binding agreements of the Borrower and the
Guarantor, as applicable, enforceable in accordance with their terms, and the
Notes, when executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of the Borrower, and will be
enforceable in accordance with their respective terms.
Section 4.04. Financial Information.
(a) The consolidated balance sheets of the Guarantor and its
Subsidiaries as of October 31, 1999 and as of July 31, 2000 and the related
consolidated statements of earnings and of cash flow for the fiscal year and
nine months then ended, and set forth in the Proxy Statement, a copy of which
has been delivered to each of the Lenders, each fairly present, in conformity
with GAAP, the consolidated financial position of the Guarantor and its
Subsidiaries as of such date and their consolidated results of operations and
changes in financial position for the period then ended.
(b) The Borrower's Pro Formas have been properly compiled on the
basis of the transactions and assumptions described in the notes thereto. The
pro forma adjustments to the historical amounts have been properly applied to
such amounts and the Borrower's Pro Formas comply in all
25
material respects with the applicable accounting requirements of the Securities
and Exchange Commission.
(c) There exists no Material Adverse Change since October 31, 1999.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending or to the knowledge of the Borrower threatened against or affecting the
Borrower or any of its Subsidiaries before any court or arbitrator or any
Governmental Authority which, if adversely determined, would have a Material
Adverse Effect.
SECTION 4.06. Compliance with ERISA. The Borrower and its Subsidiaries
have fulfilled their obligations under the minimum funding standards of ERISA,
including, without limitation, the obligations under Section 302(e) of ERISA,
with respect to each Plan and are in compliance in all material respects with
the presently applicable provisions of ERISA, noncompliance with which could
reasonably be expected to have a Material Adverse Effect;
(a) No ERISA Event which might result in liability of any member of
the Controlled Group in excess of $15,000,000 (other than for premiums payable
under Title IV of ERISA) has occurred or is reasonably expected to occur with
respect to any Plan;
(b) Schedule B (Actuarial Information) to the most recently completed
annual report prior to the Effective Date (Form 5500 Series) for each Plan,
which report has been filed with the Internal Revenue Service by any member of
the Controlled Group, copies of which have been furnished to the Administrative
Agent, is complete and, to the best knowledge of the Borrower, accurate, and
since the date of such Schedule B there has been no material adverse change in
the funding status of any such Plan; and
(c) No member of the Controlled Group has incurred any Withdrawal
Liability to any Multiemployer Plan which has not been satisfied or which is or
might be in excess of $15,000,000.
SECTION 4.07. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary other than any such taxes or assessments being presently contested in
good faith and other than where the failure to so file or pay would not have a
Material Adverse Effect. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
SECTION 4.08. Material Subsidiaries. Each of the Borrower's Material
Subsidiaries is a corporation duly incorporated and validly existing, and in
good standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.09. Not an Investment Company. The Borrower is not an
"investment company" or a company controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.10. Business of Borrower; Properties. The Borrower is not
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any Loan will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose
26
of purchasing or carrying any margin stock. The Borrower and its
Material Subsidiaries have good title to or valid leasehold estates in their
respective properties and assets as reflected in the Borrower's Pro Formas or,
if financial statements have been delivered pursuant to Section 5.01, the most
recent such financial statements, except for assets disposed of since the date
thereof.
SECTION 4.11. No Misleading Statements. Neither the Proxy
Statement (solely to the extent it relates to the Borrower and its
Subsidiaries), any of the financial statements of the Guarantor referenced in
Section 4.04(a) nor any other document furnished in connection with clauses
(a),(b),(c),(f),(g) and (j) of Section 5.01 (but excluding any such document or
portion thereof containing financial projections or other forward looking
statements) by the Borrower or any Subsidiary to the Administrative Agent or any
Lender in connection with this Agreement contained any material misstatement of
fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading.
SECTION 4.12. Environmental Matters. In the ordinary course of
its business, the Borrower conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Borrower
and its Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure of properties presently
or previously owned, any capital or operating expenditures required to achieve
or maintain compliance with environmental protection standards imposed by law or
as a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat and any actual or potential liabilities to third parties,
including employees, and any related costs and expenses). On the basis of this
review, the Borrower has reasonably concluded that the effect of Environmental
Laws is not likely to have a Material Adverse Effect.
SECTION 4.13. Pari Passu Obligations. This Agreement and the
other Loan Documents and the obligations evidenced hereby and thereby are and
will at all times be direct and unconditional general obligations of the
Borrower, and rank and will at all times rank in right of payment and otherwise
at least pari passu with all unsecured Debt of the Borrower, whether now
existing or hereafter outstanding, subject to statutory priority and the effect
of bankruptcy and insolvency law.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Loan remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of
the Lenders:
(a) as soon as available and in any event within 100 days after
the end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of earnings and cash flow for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on in a manner acceptable to the Securities and Exchange Commission
by Ernst & Young LLP or other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 55 days after
the end of each of the first three quarters of each fiscal year of the Borrower,
an unaudited consolidated balance sheet of the
27
Borrower and its Subsidiaries as of the end of such quarter and the related
consolidated statements of earnings and cash flow for such quarter and for the
portion of the Borrower's fiscal year ended at the end of such quarter, as set
forth in the Borrower's quarterly report for the fiscal quarter then ended as
filed with the Securities and Exchange Commission on Form 10-Q, all certified
(subject to normal year-end adjustments) as to fairness of presentation, GAAP
and consistency by the chief financial officer or the chief accounting officer
of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer, the treasurer or the chief accounting officer of the Borrower
(i) setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 5.07
and 5.08(k) on the date of such financial statements, (ii) stating whether any
Default exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto, (iii) describing the parties, subject
matter, and nature and amount of relief granted to the prevailing party in any
litigation or proceeding in which a final judgment or order which is either for
the payment of money in an amount equal to or exceeding $20,000,000 or which
grants any non-monetary relief to the prevailing party therein was rendered
against the Borrower or any Subsidiary (whether or not satisfied or stayed)
during the fiscal quarter ended on the date of such certificate, and (iv)
setting forth the Borrower's long-term senior unsecured debt ratings from S&P
and Xxxxx'x in effect on the date of such financial statements;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, an annual statement of the firm of
independent public accountants which reported on such statements (i) to the
effect that nothing has come to their attention to cause them to believe that
any Default existed on the date of such statements and (ii) confirming the
calculations set forth in the officer's certificate delivered simultaneously
therewith pursuant to clause (c) above;
(e) forthwith upon knowledge of the occurrence of any Default or
Event of Default, a certificate of the chief financial officer, the treasurer or
the chief accounting officer of the Borrower setting forth the details thereof
and the action which the Borrower is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of (i) all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) which the Borrower or any Subsidiary shall have filed
with the Securities and Exchange Commission, and (ii) all other reports which
the Borrower or any Subsidiary shall have filed with the Securities and Exchange
Commission or any national securities exchange, unless the Borrower or such
Subsidiary is not permitted to provide copies thereof to the Lenders pursuant to
applicable laws or regulations;
(h) if and when any member of the Controlled Group (i) gives or
is required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plans which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability in excess of $15,000,000 under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice;
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(i) promptly upon the Borrower's obtaining knowledge thereof,
notice of any withdrawal or change or proposed withdrawal or change in the
long-term senior unsecured debt rating of the Borrower assigned by S&P or
Xxxxx'x; and
(j) from time to time such additional information regarding the
financial position or business of the Borrower or any Subsidiary as the
Administrative Agent, at the reasonable request of any Lender, may request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities, except
where the same may be contested in good faith by appropriate proceedings or
where the failure to so pay and discharge would not have a Material Adverse
Effect, and will maintain, and will cause each Subsidiary to maintain, in
accordance with GAAP, appropriate reserves for the accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each Material
Subsidiary to keep, all material items of property useful and necessary in its
business in good working order and condition, ordinary wear and tear and damage
from casualty excepted.
(b) The Borrower will maintain, and will cause each Material
Subsidiary to maintain, with financially sound and reputable insurance
companies, insurance on all their real and personal property in at least such
amounts and against at least such risks as are usually insured against by
companies of established repute engaged in the same or similar business as the
Borrower or such Subsidiary and owning similar assets ("Industry Standards"),
except where such risks are covered by self insurance so long as the amount of
such self insurance and the risks covered thereby are consistent with Industry
Standards or the Borrower's and such Subsidiary's past practices as they exist
on the Effective Date. The Borrower will promptly furnish to the Lenders such
information as to insurance carried or self insurance maintained as may be
reasonably requested in writing by the Administrative Agent on behalf of any
Lender.
SECTION 5.04. Conduct of Business and Maintenance of Existence.
The Borrower will preserve, renew and keep in full force and effect, and will
cause each Material Subsidiary to preserve, renew and keep in full force and
effect, their respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section 5.04 shall prevent the Borrower
or any Subsidiary from (i) merging into, consolidating with, or selling, leasing
or otherwise transferring all of its assets to the Borrower or a Subsidiary, or
(ii) abandoning or disposing of any of its property or abandoning or terminating
any right or franchise if (A) such abandonment, disposition or termination does
not violate any other provision of this Agreement and (B) all such abandonments,
dispositions and terminations do not in the aggregate have a Material Adverse
Effect.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all Requirements
of Law (including, without limitation, ERISA, Environmental Laws and the rules
and regulations thereunder), except where failure to so comply would not have a
Material Adverse Effect.
SECTION 5.06. Keeping of Records; Inspection of Property, Books
and Records. The Borrower will keep, and will cause each Material Subsidiary to
keep, proper books of record and account
29
in accordance with GAAP consistently applied; and will permit, and will cause
each Subsidiary to permit, the Administrative Agent, any of the Lenders or any
agents or representatives of the Administrative Agent or any Lender, at the
Administrative Agent's or such Lender's expense, to visit and inspect any of
their respective properties, to examine any of their respective books and
records and (subject to Section 10.12) to discuss their respective affairs,
finances and accounts with any of their respective officers, directors,
employees and independent public accountants, all at such times and as often as
may reasonably be desired, in each case upon reasonable notice and during normal
business hours.
SECTION 5.07. Financial Covenants.
(a) The Borrower will maintain a ratio of Consolidated Debt to
Consolidated EBITDA, as determined on the last day of each fiscal quarter, for
the four fiscal quarters ending on such day, of not more than 2.75 to 1.0.
(b) The Borrower shall maintain a Consolidated Interest Coverage
Ratio, as determined on the last day of each fiscal quarter, for the four fiscal
quarters ending on such day, of not less than 4.75 to 1.0.
(c) The Borrower will maintain during each fiscal quarter a
Consolidated Tangible Net Worth of not less than the sum of (i) $700,000,000
plus (ii) for each fiscal quarter after October 31, 2000, 25% of Consolidated
Net Income, if positive, for each such fiscal quarter.
SECTION 5.08. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien securing Debt on any
asset now owned or hereafter acquired by it, or assign any right to receive
income, except:
(a) Liens existing on the date of this Agreement and reflected in
Schedule 5.08 attached hereto;
(b) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary or is merged into or consolidated with the Borrower
or a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring or
constructing such asset; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition or construction
thereof;
(d) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary and not created primarily in
contemplation of such acquisition;
(e) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section 5.08; provided that such Debt is not increased and is
not secured by any additional assets;
(f) any Lien on or with respect to the property or assets of any
Subsidiary securing obligations owing to the Borrower or another Subsidiary;
(g) rights of offset and bankers' liens in connection with Debt
permitted hereby;
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(h) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rental incurred in the
ordinary course of business (i) which are not overdue for a period of more than
thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(i) Liens on coal reserves leased by the Borrower or any
Subsidiary of the Borrower as lessee, securing Debt of the lessors thereof,
arising out of such leases;
(j) Liens consisting of deposits or pledges made in the ordinary
course of business (i) in connection with, or to secure the payment of,
obligations under workers' compensation, unemployment insurance or similar
legislation or obligations under customer service contracts, or (ii) to secure
(or to obtain letters of credit that secure) the performance of tenders,
statutory obligations, surety bonds, appeal bonds, bids, leases (other than
leases required to be capitalized under GAAP), performance bonds, purchase,
construction or sales contracts and other similar obligations, in each case not
incurred or made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of property;
and
(k) Liens not otherwise permitted by the foregoing clauses of
this Section 5.08 securing Debt in an aggregate principal amount at any time
outstanding not to exceed 5% of Consolidated Tangible Net Worth, including but
not limited to (a) Liens created or deemed to exist in connection with any
factoring arrangement or asset securitization program (including any related
filings or any financing statements), and (b) Liens on any margin stock (as such
term is defined in Regulation U) purchased or carried by the Borrower or any of
its Subsidiaries;
provided that Production Payments shall not be deemed to constitute Debt secured
by a Lien.
SECTION 5.09. Consolidations, Mergers, Sales of Assets and
Acquisitions. Neither the Borrower nor the Guarantor will
(a) (i) consolidate or merge with or into any other Person;
provided that (x) the Borrower may merge with a Person if (A) the Borrower is
the surviving corporation to such merger and (B) if after giving effect to any
such merger no Default or Event of Default shall have occurred hereunder and be
continuing, and all representations and warranties contained in this Agreement
shall be true and correct, and (y) the Borrower may merge with or into the
Guarantor (or vice versa); provided that, if the Guarantor is the surviving
corporation of any such merger, it shall have assumed all Obligations hereunder
and under the Notes of the Borrower, or (ii) except as permitted pursuant to the
foregoing clause (i), sell, lease or otherwise transfer, directly or indirectly,
all or any substantial part of the assets of the Borrower and its Subsidiaries,
taken as a whole; or
(b) in each case where the consideration therefor exceeds
$100,000,000, (i) acquire all or substantially all of the stock or equity
interests of any Person or (ii) acquire all or substantially all of the assets
of any Person or all or substantially all of the assets constituting the
business of a division, branch or other unit operation of any Person, unless, on
a pro forma consolidated basis giving effect to the subject acquisition for the
twelve (12) consecutive months immediately preceding the closing date for such
acquisition the Company would not have failed to perform or observe any covenant
of the Borrower under Section 5.07 (it being understood that for purposes of
calculating such pro forma compliance, the Borrower may use the Borrower's
reasonable best estimate of the projected financial performance of the
acquisition target for the twelve (12) consecutive months following such closing
date).
SECTION 5.10. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrower and its Subsidiaries for
working capital and general corporate
31
purposes, including, for the purpose of consummating negotiated acquisitions and
backstopping the issuance of commercial paper; provided however, that no portion
of the proceeds of any Loan shall be used to fund any acquisition unless at such
time (i) the board of directors of the subject company shall have approved such
acquisition or recommended it to shareholders or, (ii) in respect of any
acquisition occurring out a bankruptcy proceeding, the applicable bankruptcy
court shall have approved such acquisition. None of such proceeds will be used
in violation of any applicable Requirement of Law.
SECTION 5.11. Payment of Taxes, Etc. The Borrower will pay, and
will cause each Subsidiary to pay, before the same become delinquent, all taxes,
assessments and governmental charges imposed upon it or any of its properties,
except where the same may be contested in good faith by appropriate proceedings,
or where any failure to so pay would not have a Material Adverse Effect, and the
Borrower will maintain, and will cause each Subsidiary to maintain, in
accordance with GAAP, appropriate reserves for the accrual of the same.
SECTION 5.12. Change in Nature of Business. The Borrower will
not, and will not permit any of its Subsidiaries to, engage in any business
other than the businesses engaged in by the Borrower or such Subsidiaries on the
date hereof and any business or activities which are substantially similar,
related or incidental thereto, except to the extent otherwise permitted
hereunder.
SECTION 5.13. Restrictions on Subsidiary Distributions. Other
than pursuant to the Loan Documents and any agreements governing any purchase
money Debt or obligations of the Borrower and its Subsidiaries as lessees under
leases (in which latter case, any prohibition or limitation shall only be
effective against the assets financed thereby), the Borrower will not, and will
not permit any of its Subsidiaries, other than Subsidiaries acquired after the
date hereof with existing restrictions, to agree to enter into or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other investments in, or pay any Debt owed to, the Borrower or any other
Subsidiary of the Borrower.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan or shall fail to pay within 3 Domestic Business Days of the date due any
interest on any Loan, any fees or any other amount payable hereunder; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.10, inclusive; or
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Borrower by the Administrative Agent at the request of any Lender; or
(d) any representation, warranty, certification or statement made
by the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made); or
32
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Debt (other than the Loans) having an aggregate principal
amount of at least $20,000,000 when due or within any applicable grace period;
or
(f) any event shall occur or condition shall exist which results
in the acceleration of the maturity of any Debt of the Borrower or any
Subsidiary having an aggregate principal amount of at least $20,000,000; or such
Debt shall be declared due and payable, or required to be prepaid (other than by
a regularly scheduled required prepayment), prior to the stated maturity
thereof, excluding, however, prepayments of Debt required upon disposition in
the ordinary course of business of collateral securing such Debt so long as such
Liens and dispositions are permitted hereby; or
(g) the Borrower, the Guarantor or any Subsidiary shall commence
a voluntary case or other proceeding seeking to adjudicate the Borrower, the
Guarantor or any such Subsidiary having total assets of $20,000,000 or more as
bankrupt or insolvent, seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the entry of an order for relief or
the appointment of a trustee, receiver, liquidator, custodian or other similar
official for it or for any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall admit in writing its
inability to pay its debts generally, or shall take any corporate action to
authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower, the Guarantor or any Subsidiary having total assets of
$20,000,000 or more seeking to adjudicate it as bankrupt or insolvent, seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect, or seeking the entry of an order for relief or the appointment of a
trustee, receiver, liquidator, custodian or other similar official for it or for
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 30 days; or an
order for relief shall be entered against the Borrower, the Guarantor or any
such Subsidiary having total assets of $20,000,000 or more under the federal
bankruptcy laws as now or hereafter in effect; or
(i) any member of the Controlled Group shall:
(i) fail to pay when due an amount or amounts aggregating in
excess of $15,000,000 which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA except where the failure to
so pay would not have a Material Adverse Effect; or notice of intent
to terminate a Plan or Plans which would have a Material Adverse
Effect (collectively, a "Material Plan") shall be filed under Title IV
of ERISA by any member of the Controlled Group, any plan administrator
or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee
to be appointed to administer any Material Plan or a proceeding shall
be instituted by a fiduciary of any Material Plan against any member
of the Controlled Group to enforce Section 515 of ERISA and such
proceeding shall not have been dismissed within 30 days thereafter; or
a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be
terminated; or
(ii) have been notified by the sponsor of a Multiemployer
Plan that it has incurred an aggregate Withdrawal Liability for all
years to such Multiemployer Plan in an amount that, when aggregated
with all other amounts then required to be paid to Multiemployer Plans
by the Controlled Group as Withdrawal Liability (determined as of the
date of such notification),
33
exceeds $15,000,000 and it is reasonably likely that all amounts then required
to be paid to Multiemployer Plans by the Controlled Group as Withdrawal
Liability will exceed $15,000,000; or
(iii) have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and it is
reasonably likely that as a result of such reorganization or
termination the aggregate annual contributions of the Controlled Group
to all Multiemployer Plans that are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the plan year of such Multiemployer
Plan immediately preceding the plan year in which the reorganization
or termination occurs by an amount exceeding $15,000,000; or
(j) to the extent not insured against, a final judgment or order
for the payment of money in excess of $20,000,000 shall be rendered against the
Borrower or any Subsidiary and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) such judgment
or order shall continue unsatisfied and unstayed by reason of a pending appeal
or otherwise for a period of 30 days; or
(k) (i) any Person or group of Persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 35% or more of the outstanding shares of common stock of the
Borrower; or (ii) at any time during any period of twelve consecutive
calendar months a majority of the Board of Directors of the Borrower
shall not consist of individuals who were either directors of the
Borrower on the first day of such period ("original directors") or
appointed as or nominated to be directors either (A) by individuals
including a majority of those of the original directors who have not,
prior to such appointment or nomination, resigned or died, or (B) by a
duly constituted committee of the Board of Directors a majority of
which consists of the original directors; or
(ii) the Guarantor shall cease to be a direct, wholly-owned
Subsidiary of the Borrower other than in accordance with the terms of
Section 5.09(a); or
(l) any provision of the AT Guaranty or Article IX hereof shall
for any reason cease to be valid and binding, or enforceable against, the
Guarantor, or the Guarantor shall so state in writing; or
(m) all or any substantial parts of the property of the Borrower
and its Subsidiaries (taken as a whole) shall be condemned, seized or otherwise
appropriated, or custody or control of such property shall be assumed, by any
court or governmental agency of competent jurisdiction, and such property shall
be retained for a period of thirty (30) days, which condemnation, seizure or
other appropriation could reasonably be expected to have a Material Adverse
Effect at any time up to and including the Termination Date;
then, and in every such event, the Administrative Agent shall (i) if requested
by at least four (4) Lenders having at least 50% in aggregate amount of the
Commitments, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by at least four (4) Lenders holding
at least 50% in aggregate principal amount of the Loans, by notice to the
Borrower declare the Loans (together with accrued interest thereon and all other
amounts payable under this Agreement, the Loans or the Notes) to be, and the
Loans shall thereupon become, immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the
34
Borrower; provided that with respect to the events described in clause (g) or
(h) above with respect to the Borrower or the Guarantor, without any notice to
the Borrower or the Guarantor, as applicable, or any other act by the
Administrative Agent or the Lenders, the Commitments shall thereupon terminate
and the Loans (together with accrued interest thereon and all other amounts
payable under this Agreement, the Loans or the Notes) shall automatically become
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall
give notice to the Borrower under Section 6.01(c) promptly upon being requested
to do so by any Lender and shall thereupon notify all the Lenders thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes Citibank to act as the Administrative Agent under this
Agreement and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto. As to any matters not expressly provided for
by the Loan Documents (including, without limitation, enforcement or collection
of the Loans and other amounts owing hereunder), the Administrative Agent shall
not be required to exercise any discretion or take any action; provided,
however, that the Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or which is
contrary to any of the Loan Documents or applicable law. The Administrative
Agent agrees to give to each Lender prompt notice of each notice given to it by
the Borrower pursuant to the terms of the Loan Documents.
SECTION 7.02. Agents' Reliance, Etc. Neither the Administrative
Agent nor any of their respective directors, officers, agents or employees shall
be liable for any action taken or omitted to be taken by it or them under or in
connection with any of the Loan Documents, except for their own gross negligence
or willful misconduct. Without limitation of the generality of the foregoing,
the Administrative Agent: (i) may treat the Lender that made any Advance as the
payee thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by such Lender, as assignor, and an Eligible
Assignee, as assignee as provided in Section 10.06, (ii) may consult with legal
counsel (including counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) make no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection with any
of the Loan Documents; (iv) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any of the Loan Documents on the part of the Borrower or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Loan Documents
or any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of any of the Loan Documents by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
respective Commitment and the respective Loans made by it, Citibank shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not an agent; and the term
35
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank respectively in its individual capacity. Citibank and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures of,
acquire equity interests in and generally engage in any kind of commercial
banking, investment banking, trust, financial advisory, underwriting or other
business with, the Borrower, any of its Subsidiaries and other Affiliates and
any Person who may do business with or own securities of the Borrower or any
such Subsidiary or Affiliate, all as if Citibank was not an Agent and without
any duty to account therefore, or provide notice thereof, to the Lenders. The
Lenders acknowledge that, pursuant to such activities, Citibank and its
Affiliates may receive information regarding the Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrower or an Affiliate) and acknowledge that the Administrative
Agent shall not be under any obligation to provide such information to them.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon any Agent or any other Lender and
based on the financial statements referred to, and the representations and
warranties contained, in Article IV and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Loans then held by each of
them (or if no such Loans are at the time outstanding or if any such Loans are
held by Persons which are not Lenders, 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 which may be imposed
on, incurred by, or asserted against Administrative Agent in any way relating to
or arising out of any of the Loan Documents or any action taken or omitted by
such Administrative Agent under any of the Loan Documents; provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Administrative Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse
Administrative Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, syndication, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, the Loan Documents, to the extent
that the Administrative Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower. Upon any such resignation, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent which shall
be a commercial bank organized under the laws of the United States of America or
of any State thereof or any Bank and, in each case having a combined capital and
surplus of at least $50,000,000 (and so long as no Event of Default has occurred
and is continuing, that is reasonably acceptable to the Borrower). Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent,
36
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under the
Loan Documents.
SECTION 7.07. Administrative Agent's Fee. The Borrower shall pay to
the Administrative Agent for its own account fees in the amounts and at the
times heretofore or hereafter agreed upon between the Borrower and the
Administrative Agent.
SECTION 7.08. Co-Agents. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement or elsewhere
herein as a "Co-Agent" or "Syndication Agent" or "Documentation Agent" or
"Arranger" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons so
identified as a "Co-Agent" or "Syndication Agent" or "Documentation Agent" or
"Arranger" shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair.
(a) If on or prior to the first day of any Interest Period for any
Borrowing of Euro-Dollar Loans, Lenders having 50% or more of the aggregate
amount of the Commitments advise the Administrative Agent that the LIBO Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of funding their Euro-Dollar Loans for such Interest
Period, the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders (which notice may be telephonic), whereupon the
obligations of the Lenders to make Euro-Dollar Loans shall be suspended until
the Administrative Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exists. Unless the Borrower, at its option,
notifies the Administrative Agent at least one Domestic Business Day before the
date of a Borrowing of Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing, and the Loans comprising such
Borrowing shall bear interest for each day from and including the first day, to
but excluding the last day, of the Interest Period applicable thereto at the
Base Rate.
(b) If Dow Xxxxx Markets Telerate Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Administrative
Agent for determining the Euro-Dollar Rate for any Euro-Dollar Loan or
Competitive Bid Euro-Dollar Rate Loan,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans,
as the case may be,
(ii) with respect to Euro-Dollar Loans, each such Loan will
automatically, on the last day of the then existing Interest Period
therefor, be prepaid by the Borrower or be automatically Converted
into a Base Rate Loan (or if such Loan is then a Base Rate Loan, will
continue as a Base Rate Loan), and
37
(iii) the obligation of the Lenders to make Euro-Dollar Loans
or Competitive Bid Euro-Dollar Rate Loans, or to Convert Loans (other
than Competitive Bid Euro-Dollar Rate Loans) into Euro-Dollar Loans
shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 8.02. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Lender (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans
and such Lender shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make or continue Euro-Dollar Loans or to Convert
all or any portion of Base Rate Loans to Euro-Dollar Loans shall be suspended.
Before giving any notice to the Administrative Agent pursuant to this Section
8.02, such Lender shall designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender. If such
Lender shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate
Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, together with accrued
interest thereon. Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower may elect to borrow a Base Rate Loan in an equal principal amount from
such Lender (on which interest and principal shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Lenders), and such Lender shall
make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If, on or after the date hereof, in the case of any Loan or any
obligation to make Loans, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency:
(i) shall subject any Lender (or its Lending Office) to any
tax, duty or other charge with respect to its Euro-Dollar Loans or
Competitive Bid Euro-Dollar Rate Loans, its Notes or its obligation to
make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, or
shall change the basis of taxation of payments to any Lender (or its
Lending Office) of the principal of or interest on its Euro-Dollar
Loans or Competitive Bid Euro-Dollar Rate Loans or any other amounts
due under this Agreement in respect of its Euro-Dollar Loans or
Competitive Bid Euro-Dollar Rate Loans or its obligation to make
Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans (except
for changes in the rates of taxes excluded from the definition of
Taxes set forth in Section 10.03(b)(i)); or
38
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan or
Competitive Bid Euro-Dollar Rate Loan any such requirement included in
an applicable Euro-Dollar Reserve Percentage) against assets of,
deposits with or for the account of, or credit extended by, any Lender
(or its Lending Office) or shall impose on any Lender (or its Lending
Office) or the London interbank market any other condition affecting
its Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, its
Notes or its obligation to make Euro-Dollar Loans or Competitive Bid
Euro-Dollar Rate Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of making or maintaining any Euro-Dollar Loan or
Competitive Bid Euro-Dollar Rate Loan, or to reduce the amount of any sum
received or receivable by such Lender (or its Lending Office) under this
Agreement or under its Notes with respect thereto, by an amount deemed by such
Lender to be material, then, within 15 days after demand by such Lender (with a
copy to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction.
(b) If after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Lending Office) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, have or would have the effect of reducing the
rate of return on such Lender's capital as a consequence of its obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, within 15 days after demand by such Lender
(with a copy to the Administrative Agent), the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 8.03, or any payment or indemnification under Section 10.03(b) and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation, payment or indemnification and
will not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender; provided that nothing in this Section 8.03 shall affect or postpone any
of the rights of a Lender under, or obligations of the Borrower pursuant to, the
provisions of this Section 8.03 or Section 10.03(b) hereof. A certificate of any
Lender claiming compensation under this Section 8.03 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error; provided that the determinations set forth in
such certificate are made reasonably and in good faith. In determining such
amount, such Lender may use any reasonable averaging and attribution methods. If
any Lender demands compensation from the Borrower under this Section 8.03 more
than 180 days after such Lender had knowledge of the occurrence of the event
giving rise to such claim for compensation, the Borrower shall not be obligated
to reimburse such Lender for amounts incurred as a result of the occurrence of
such event more than 180 days prior to the date on which the Lender made such
demand (provided that if the event giving rise to claim for compensation or
indemnification is retroactive, then such 180 day period shall be extended to
include the period of retroactive effect).
39
SECTION 8.04. Substitution of Loans for Affected Euro-Dollar Loans. If
(i) the obligation of any Lender to make Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Lender has demanded compensation under
Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Lender through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Lender, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Lender as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Loans of the other Lenders); and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans, instead.
SECTION 8.05. Substitution of Lender. If (i) the obligation of any
Lender to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Lender has demanded compensation under Section 8.03 or payment or
indemnification under Section 10.03(b), the Borrower shall have the right, with
the assistance of the Administrative Agent, to seek a mutually satisfactory
substitute lender or lenders (which may be one or more of the Lenders) to
purchase the Loans and assume the Commitment of such Lender; provided that (i)
no default or Event of Default has occurred and is continuing, (ii) the Borrower
has satisfied all of its obligations under this Agreement with respect to such
Lender and (iii) if such substitute lender is not an existing Lender, the
Borrower has paid to the Administrative Agent a $3,500 administration fee.
ARTICLE IX
GUARANTEE
SECTION 9.01. Unconditional Guarantee. For valuable consideration,
receipt whereof is hereby acknowledged, and to induce each Lender to make Loans
to the Borrower and to induce the Administrative Agent to act hereunder, the
Guarantor hereby unconditionally and irrevocably guarantees to each Lender and
the Administrative Agent (the "AT Guaranty") the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all obligations of
the Borrower now or hereafter existing under this Agreement, whether for
principal, interest, fees, expenses, post-petition interest, indemnities or
otherwise (such obligations being the "Obligations"). Without limiting the
generality of the foregoing, the Guarantor's liability shall extend to all
amounts that constitute part of the Obligations and would be owed by the
Borrower to the Administrative Agent or any other Lender under this Agreement
but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving the
Borrower.
SECTION 9.02. Guarantee Absolute. The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender or
the Administrative Agent with respect thereto. The obligations of the Guarantor
under this Article IX are independent of the Obligations, and a separate action
or actions may be brought and prosecuted against the Guarantor to enforce this
Article IX, irrespective of whether any action is brought against the Borrower
or whether the Borrower is joined in any such action or actions. The liability
of the Guarantor under this guarantee shall be irrevocable, absolute and
unconditional, irrespective of, and the Guarantor
40
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from this Agreement;
(c) any taking, exchange, release or non-perfection of any
collateral or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of the Borrower; or
(e) any other circumstance (including, without limitation, any
statute of limitations to the fullest extent permitted by applicable law), which
might otherwise constitute a defense available to, or a discharge of, the
Guarantor, the Borrower or a guarantor.
This AT Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded or
must otherwise be returned by any of the Lenders or the Administrative Agent
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
all as though such payment had not been made.
SECTION 9.03. Waivers. (a) The Guarantor hereby expressly waives
promptness, diligence, notice of acceptance, presentment, demand for payment,
protest, any requirement that any right or power be exhausted or any action be
taken against the Borrower or against any other guarantor of all or any portion
of the Loans, and all other notices and demands whatsoever. Without limitation,
the Guarantor waives the provisions of Sections 49-25 and 49-26 of the Virginia
Code, as amended, relating to the rights of a guarantor to require a creditor to
xxx and the effect of failure of a creditor to act thereon.
(b) The Guarantor hereby waives any right to revoke this AT
Guaranty, and acknowledges that this AT Guaranty is continuing in nature and
applies to all Obligations, whether existing now or in the future.
(c) The Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated herein
and that the waivers set forth in this Article IX are knowingly made in
contemplation of such benefits.
SECTION 9.04. Subrogation. The Guarantor will not exercise any rights
that it may now or hereafter acquire against the Borrower or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
the Obligations under this Agreement, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Administrative Agent or
any other Lender against the Borrower or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Obligations and all other amounts payable under this AT Guaranty
shall
41
have been paid in full in cash and the Commitments shall have expired or
terminated. If any amount shall be paid to the Guarantor in violation of the
preceding sentence at any time prior to the later of the payment in full in cash
of the Obligations and all other amounts payable under this AT Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the other Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Obligations and all other
amounts payable under this AT Guaranty, whether matured or unmatured, in
accordance with the terms of this Agreement, or to be held as collateral for any
Obligations or other amounts payable under this AT Guaranty thereafter arising.
If (i) the Guarantor shall make payment to the Administrative Agent or any other
Lender of all or any part of the Obligations, (ii) all the Obligations and all
other amounts payable under this AT Guaranty shall be paid in full in cash and
(iii) the Termination Date shall have occurred, the Administrative Agent and the
other Lenders will, at the Guarantor's request and expense, execute and deliver
to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
the Guarantor of an interest in the Obligations resulting from such payment by
the Guarantor. The Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Agreement
and that the waiver set forth in this section is knowingly made in contemplation
on such benefits.
SECTION 9.05. Survival. This AT Guaranty is a continuing guarantee and
shall (a) remain in full force and effect until payment in full (after the
Termination Date) of the Obligations and all other amounts payable under this AT
Guaranty, (b) be binding upon the Guarantor, its successors and assigns, (c)
inure to the benefit of and be enforceable by each Lender (including each
assignee Lender pursuant to Section 10.06) and the Administrative Agent and
their respective successors, transferees and assigns and (d) shall be reinstated
if at any time any payment to a Lender or the Administrative Agent hereunder is
required to be restored by such Lender or the Administrative Agent. Without
limiting the generality of the foregoing clause (c), each Lender may assign or
otherwise transfer its interest in any Loan to any other person or entity, and
such other person or entity shall thereupon become vested with all the rights in
respect thereof granted to such Lender herein or otherwise.
SECTION 9.06. Limitation of AT Guaranty Any term or provision of this
AT Guaranty or any other Loan Document to the contrary notwithstanding, the
maximum aggregate amount of the Obligations for which the Guarantor shall be
liable shall not exceed the maximum amount for which the Guarantor can be liable
without rendering this AT Guaranty or any other Loan Document, as it relates to
the Guarantor, subject to avoidance under applicable law relating to fraudulent
conveyance or fraudulent transfer (including section 548 of the Bankruptcy Code
or any applicable provisions of comparable state law) (collectively, "Fraudulent
Transfer Laws"), in each case after giving effect (a) to all other liabilities
of the Guarantor, contingent or otherwise, that are relevant under such
Fraudulent Transfer Laws (specifically excluding, however, any liabilities of
the Guarantor in respect of intercompany Debt to the Borrower to the extent that
such Debt would be discharged in an amount equal to the amount paid by the
Guarantor hereunder) and (b) to the value as assets of the Guarantor (as
determined under the applicable provisions of such Fraudulent Transfer Laws) of
any rights to subrogation, contribution, reimbursement, indemnity or similar
rights held by the Guarantor pursuant to (i) applicable law or (ii) any
agreement, if any, providing for an equitable allocation among the Guarantor and
other Subsidiaries or Affiliates of the Borrower of obligations arising under
this AT Guaranty or other guaranties of the Obligations by such parties.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
writing) and mailed, telecopied, emailed or delivered , if to the Borrower or
the Guarantor, at 0 Xxxxx 0xx Xxxxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attn:
President, telecopier no. (000) 000-0000, with a copy to Xxxxx Xxxxxxxxx,
General Counsel, telecopier no. (000) 000-0000, email address:
xxxxx.xxxxxxxxx@xxxxxxxxxx.xxx; if to an Additional Lender, at its Domestic
Lending Office specified in Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Administrative Agent, at its address at
Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx, 00000, Attn: Xxxxx Xxxx,
telecopier no. (000) 000-0000, email address: xxxxx.xxxx@xxxxxxxx.xxx; or such
other address, telecopy number or email address as such party may hereafter
specify for the purpose by notice to the Administrative Agent and the Borrower.
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (ii) if given by telecopy or
email, when such telecopy or email has been received by the addressee thereof,
or (iii) if given by any other means, when delivered at the address specified in
this Section 10.01; provided that notices to the Administrative Agent under
Article II or Article VIII shall not be effective until received.
SECTION 10.02. No Waivers. No failure or delay by the Administrative
Agent or any Lender in exercising any right, power or privilege hereunder or
under any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Taxes; Indemnification.
(a) Expenses. The Borrower agrees to pay on demand:
(i) all costs and expenses (including, without limitation,
counsel fees and expenses) incurred by the Administrative Agent and
Xxxxxxx Xxxxx Xxxxxx Inc. (other than costs and expenses which are
covered by subparagraph (ii) immediately following) in connection with
the preparation, negotiation, execution and delivery of this Agreement
and the other Loan Documents delivered concurrently therewith; and
(ii) all costs and expenses, if any (including, without
limitation, counsel fees and expenses), (A) incurred by the
Administrative Agent in connection with any and all amendments to,
replacements for or modifications of any of the Loan Documents, in
each case either initiated by the Borrower or provided for in this
Agreement, (B) incurred by the Administrative Agent in connection with
any and all waivers of rights or remedies, or granting of any consent,
by the Administrative Agent under the Loan Documents, (C) incurred by
the Administrative Agent or any Lender in connection with the
enforcement of the Loan Documents and the other documents to be
delivered under the Loan Documents, or any of the rights or remedies
of the Administrative Agent or any Lender thereunder, including,
without limitation, the fees and expenses of counsel incurred in any
out-of-court workout or in any bankruptcy case, and (D) incurred by
the Administrative Agent or any Lender in connection with
investigation of any Default or alleged Default under any of the Loan
Documents, together with any collection and other enforcement measures
or proceedings resulting from any Event of Default; provided,
43
however, that with respect to clauses (C) and (D)of this Section
10.03(a)(ii),such counsel fees and expenses shall be limited to the
counsel fees and expenses of not more than one law firm retained by
the Administrative Agent, and not more than one additional law firm
retained by the Lenders, as a group.
(b) Taxes.
(i) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.12, free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative
Agent, (A) taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any
political subdivision thereof or in which its principal office is
located, (B) taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction of such Lender's applicable Lending Office
or any political subdivision thereof, (C) taxes imposed upon or
measured by the overall net income of such Lender by the United States
of America or any political subdivision or taxing authority thereof or
therein, and (D) United States income taxes imposed under any law
(including without limitation any statute, treaty, ruling,
determination or regulation) in effect on the date hereof in the case
of each Lender listed on the signature pages hereof and on the
effective date of the assignment pursuant to which it became a Lender
in the case of each other Lender (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (x) the sum
payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional
sums payable under this Section 10.03(b)), such Lender or the
Administrative Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (y)
the Borrower shall make such deductions and (z) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from the execution,
delivery or registration of, or otherwise similarly with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
(iii) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 10.03(b)) and
the Borrower will indemnify each Lender and the Administrative Agent
for the full amount of Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 10.03(b) in each
case paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto (except to the extent
arising from the failure of such Lender or the Administrative Agent to
make any filing or payment within such person's control), whether or
not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Lender
or the Administrative Agent (as the case may be) makes written demand
therefor. Such demand shall be made no later than 180 days after the
earlier of (A) the date on which such
44
Lender or the Administrative Agent pays such Taxes or Other Taxes or
(B) the date on which the relevant Governmental Authority makes
written demand for payment of such Taxes or Other Taxes.
(iv) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address
referred to in Section 10.01, an original or a copy of an official
receipt (if any) or other evidence of the Borrower's payment thereof.
(v) Each Lender organized under the laws of a jurisdiction
outside the United States (each, a "Non-U.S. Lender"), on or prior to
the date of its execution and delivery of this Agreement in the case
of each Lender and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to
do so), shall provide the Borrower with Internal Revenue Service Form
W-8BEN or W-8ECI, as appropriate, or any successor form prescribed by
the Internal Revenue Service, to establish that such Lender is not
subject to United States withholding tax with respect to any payments
to such Lender payable under this Agreement (or, in the case of a
Non-U.S. Lender that is not a bank for purposes of Section 881(c) of
the Code, such other documentation as may be reasonably necessary to
establish that interest payable to such Lender is exempt from United
States withholding tax as portfolio interest). If the form provided by
a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 10.03(b)(i).
(vi) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section
10.03(b)(v) (other than if such failure is due to a change in law
occurring subsequent to the date on which a form originally was
required to be provided, or if such form otherwise is not required
under the first sentence of subsection (v) above), such Lender shall
not be entitled to indemnification under Section 10.03(b) with respect
to Taxes imposed by the United States or any political subdivision
thereof; provided, however, that should a Lender become subject to
Taxes because of its failure to deliver a form required to be
delivered hereunder, the Borrower shall, at the expense of such
Lender, take such steps as the Lender shall reasonably request to
assist the Lender to recover such Taxes.
(vii) If a Lender or the Administrative Agent actually receives a
refund or actually realizes the benefit of a credit or reduction in
respect of any Taxes or Other Taxes for which it has received an
indemnity payment from the Borrower, such Lender or the Administrative
Agent shall within 45 days from the date of such receipt or
realization pay over the amount of such refund, credit or reduction to
the Borrower (but only to the extent of indemnity payments made or
other amounts paid by the Borrower under this Section 10.03(b) with
respect to such Taxes or Other Taxes), net of all reasonable
out-of-pocket expenses of such Lender or the Administrative Agent and
without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund, credit or
reduction), provided that the Borrower (upon written request of such
Lender or the Administrative Agent) agrees to repay the amount paid
over to the Borrower to such Lender or the Administrative Agent in the
event such Lender or the Administrative Agent is required to repay
such refund, credit or reduction to such Governmental Authority.
Nothing in this paragraph shall require any Lender or the
Administrative Agent to make
45
available to the Borrower any tax return or other information that the
Lender or the Administrative Agent deems to be confidential or
proprietary.
(viii) The Borrower shall not be required to indemnify any Lender
(including, for purposes of this paragraph, any participant or other
transferee of any rights of a Lender) or the Administrative Agent, or
to pay any other amount to any Lender or the Administrative Agent, in
respect of any Taxes pursuant to this Section 10.03(b) to the extent
that such Taxes were applicable on the date such Lender or
Administrative Agent became a party to this Agreement or, with respect
to payments to a new Lending Office, the date such Lender designated
such Lending Office; provided, however, that the preceding clause
shall not apply (A) to any Lender or new Lending Office that becomes a
Lender or Lending Office as a result of an assignment or designation
made at the request of the Borrower or (B) to the extent the indemnity
payment or other amount does not exceed the indemnity payment or other
amount that the Lender making the assignment, or making the
designation of such new Lending Office, would have been entitled to
receive in the absence of such assignment or designation.
(ix) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 10.03(b) shall survive the payment in full
of principal and interest hereunder.
(c) Indemnification. The Borrower agrees to indemnify the
Administrative Agent and each Lender and their respective Affiliates, and the
officers, directors, employees, agents and advisors of each of the foregoing
(collectively, the "Indemnitees"), and hold each Indemnitee harmless from and
against any and all liabilities, damages, costs and expenses of any kind
(including, without limitation, the reasonable fees and disbursements of counsel
for any Indemnitee in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitee shall be designated a party
thereto) which may be incurred by such Indemnitee arising out of this Agreement
or any of the other Loan Documents or any actual or proposed use of proceeds of
Loans hereunder; provided that no Indemnitee shall have the right to be
indemnified hereunder for its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
(d) Prepayment of Euro-Dollar Loans. If any payment of principal of
any Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans is made other
than on the last day of the Interest Period for such Loan, as a result of a
payment pursuant to Section 2.11(b) or acceleration of the maturity of the Loans
pursuant to Section 6.01 or for any other reason, or if any Lender shall be
forced to sell, assign or transfer any of its interest hereunder or any
Borrowing pursuant to Section 10.06(b) due to (i) such Lender's failure to
extend its Commitment pursuant to Section 2.16(c) or (ii) the substitution of
such Lender pursuant to Section 8.05, the Borrower shall, upon demand by any
Lender or any bank or other entity (an "Assignee") to which any Lender has sold,
assigned, transferred or granted any participation in any of its interest
hereunder or any Borrowing pursuant to Section 10.06(b) (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender or Assignee any amounts required to compensate such
Lender or Assignee for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender or Assignee to fund or maintain such Loan.
46
(e) Survival. The obligations of the Borrower under this Section 10.03
shall survive the termination of this Agreement, the termination of the
Commitment of any Lender hereunder and payment of the Loans.
SECTION 10.04. Sharing of Set-Offs. Each Lender agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Loan held by it which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal and
interest due with respect to any Loan held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans held by the Lenders shall be
shared by the Lenders pro rata; provided that nothing in this Section 10.04
shall impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Loans. The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Loan, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 10.04 would apply, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 10.04 to
share in the benefits of any recovery on such secured claim. The Borrower hereby
authorizes Citibank, in accordance with the provisions of this Section 10.04, to
so set-off and apply any and all such deposits held and other indebtedness owing
by Citibank to or for the credit or the account of the Borrower and hereby
authorizes Citibank to permit such set-off and application by Citibank.
SECTION 10.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Lenders (and, if
the rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment, waiver or modification
shall, unless signed by all the Lenders affected thereby, (i) increase the
Commitment of any Lender or increase the aggregate amount of the Commitments or
subject any Lender to any additional obligation (other than as provided for in
Section 2.15(c)), (ii) reduce the principal of or rate of interest on any Loan
or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any loan or any fees hereunder, (iv) release the
Borrower from its payment Obligations or release the Guarantor from its
obligations under the AT Guaranty (except as permitted by Section 5.09), (v)
amend this Section 10.05, or (vi) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action under
this Section 10.05 or any other provision of this Agreement and provided
further, that no waiver of any of the conditions specified in Sections 3.01 or
3.02 relating to a Competitive Bid Borrowing shall be effective unless consented
to by all Lenders making Competitive Bid Loans as a part of such Competitive Bid
Borrowing.
SECTION 10.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement.
47
(b) (i) Each Lender may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement and the other
Loan Documents (with the consent of the Agent and the Borrower (such consent not
to be unreasonably withheld) including, without limitation, all or a portion of
its Commitment and the Loans owing to it and the Notes held by it); provided,
however, that (A) each such assignment shall, except with respect to Competitive
Bid Loans, be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement and the other Loan Documents, (B) the amount of
the Commitment of the assigning Lender being assigned pursuant to each such
assignment shall in no event be less than $5,000,000 and shall be an integral
multiple of $1,000,000, (C) upon notice to the Borrower and the Agent by the
assigning Lender, the consent of the Borrower shall not be required with respect
to any such assignment by any Lender to an Affiliate of such Lender (subject to
the proviso in clause (iii) of the definition of "Eligible Assignee"), (D) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, in substantially the form of Exhibit G hereto, and (E) the parties
to each such assignment shall execute and deliver to the Administrative Agent
any Note or Notes subject to such assignment and the assigning Lender shall pay
or cause to be paid to the Administrative Agent (except in the case of an
assignment to an Affiliate of such Lender) a processing and recordation fee of
$3,500. From and after the effective date of any such assignment (1) the
Assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such assignment, have
the rights and obligations of a Lender hereunder, and (2) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
assignment at covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(ii) Subject to Section 10.06(d), a Lender may at any time grant
participations to one or more banks or other entities in or to all or
any part of its rights and obligations under this Agreement or any
Borrowings hereunder, and to the extent of any such participation
(unless otherwise stated therein and except as provided below) the
purchaser of such participation shall, to the fullest extent permitted
by law, have the same rights and benefits hereunder and under such
Borrowings as it would have if it were such Lender hereunder;
provided, however, that the Borrower and the Administrative Agent
shall be entitled to continue to deal solely with the granting Lender
regarding notices, payments, payment instructions and any other
matters arising pursuant to this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide
that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder, including, without
limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation
agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement described in
clause (i), (ii) or (iii) of Section 10.05 without the consent of the
participant.
(c) The Administrative Agent and the Borrower may, for all purposes
of this Agreement, treat any Lender as the holder of any Note issued to it (and
owner of the Loans evidenced thereby) until written notice of assignment,
participation or other transfer shall have been received by them.
(d) No Assignee, participant or other transferee (including any SPV)
of any Lender's rights shall be entitled to receive any greater payment under
Section 8.03 than such Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made (i) with the Borrower's
prior written consent (which consent shall not be unreasonably withheld) or by
reason of the
48
provisions of Section 8.02 or 8.03 requiring such Lender to designate a
different Lending Office under certain circumstances, or (ii) at a time when the
circumstances giving rise to such greater payment did not exist.
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement and the other Loan Documents
(including, without limitation, the Loans owing to it and the Note or Notes held
by it) in favor of any Federal Reserve Bank in accordance with Regulation A of
the Board of Governors of the Federal Reserve System.
(f) (i) Notwithstanding anything to the contrary contained
herein, any Lender (a "Designating Lender") may grant to one or more special
purpose funding vehicles (each, an "SPV"), identified as such in writing from
time to time by the Designating Lender to the Administrative Agent and the
Borrowers, the option to provide to the Borrower all or any part of any Loan
that such Designating Lender would otherwise be obligated to make to the
Borrower pursuant to this Agreement; provided that (1) nothing herein shall
constitute a commitment by any SPV to make any Loan, (2) if an SPV elects not to
exercise such option or otherwise fails to provide all or any part of such Loan,
the Designating Lender shall be obligated to make such Loan pursuant to the
terms hereof and (3) the Designating Lender shall remain liable for any
indemnity or other payment obligation with respect to its Commitment hereunder.
The making of a Loan by an SPV hereunder shall utilize the Commitment of the
Designating Lender to the same extent, and as if, such Loan were made by such
Designating Lender;
(ii) As to any Loans or portion thereof made by it, each
SPV shall have all the rights that a Lender making such Loans or
portion thereof would have had under this Agreement; provided,
however, that each SPV shall have granted to its Designating
Lender an irrevocable power of attorney to deliver and receive
all communications and notices under this Agreement (and any
related documents) and to exercise on such SPV's behalf, all of
such SPV's voting rights under this Agreement. No additional Note
shall be required to evidence the Loans or portion thereof made
by an SPV; and the related Designating Lender shall be deemed to
hold its Note (if any) as agent for such SPV to the extent of the
Loans or portion thereof funded by such SPV. In addition, any
payments for the account of any SPV shall be paid to its
Designating Lender as agent for such SPV;
(iii) Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or payment under this Agreement for
which a Lender would otherwise be liable; if an SPV, but for the
operation of this sentence, would have liability for any such
indemnity or payment, the Designating Lender shall be liable;
(iv) In addition, notwithstanding anything to the contrary
contained in this Section 10.06(f) or otherwise in this
Agreement, any SPV may (1) at any time and without paying any
processing fee therefore, assign or participate all or a portion
of its interest in any Loans to the Designating Lender or to any
financial institutions providing liquidity and/or credit support
to or for the account of such SPV to support the funding or
maintenance of Loans; provided that the Designating Lender in the
event of an assignment or participation to any other financial
institution shall remain liable for any indemnity or other
payment obligation with respect to its Commitment, and shall be
obligated to make such Loan pursuant to the terms hereof and of
its Commitment and (2) disclose on a confidential basis any
non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancements to such SPV.
49
SECTION 10.07. Collateral. Each of the Lenders represents to the
Administrative Agent and each of the other Lenders that it in good faith is not
relying upon any "margin stock" (as defined in Regulation D) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
SECTION 10.08. New York Law. This Agreement and each Note shall
be construed in accordance with and governed by the law of the State of New
York.
SECTION 10.09. Consent to Jurisdiction; Waiver of Immunities. The
Borrower hereby irrevocably submits to the jurisdiction of any New York state or
Federal court sitting in New York, New York in any action or proceeding arising
out of or relating to this Agreement, and the Borrower hereby irrevocably agree
that all claims in respect of such action or proceeding may be heard and
determined in such New York state or Federal court. The Borrower hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding. The
Borrower agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Section 10.09 shall affect
the right of any Lender or Administrative Agent to serve legal process in any
other manner permitted by law or affect the right of any Lender or
Administrative Agent to bring any action or proceeding against the Borrower or
its property in the courts of any other jurisdiction.
SECTION 10.10. Waiver of Trial by Jury. THE BORROWER, THE
LENDERS, THE ADMINISTRATIVE AGENT AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
OTHER LENDERS EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. The Borrower, the
Lenders, the Administrative Agent and, by its acceptance of the benefits hereof,
other Lenders each (i) acknowledges that this waiver is a material inducement
for the Borrower, the Lenders and the Administrative Agent to enter into a
business relationship, that the Borrower, the Lenders and the Administrative
Agent have already relied on this waiver in entering into this Agreement or
accepting the benefits thereof, as the case may be, and that each will continue
to rely on this waiver in their related future dealings and (ii) further
warrants and represents that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
SECTION 10.11. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.12. Confidentiality. In accordance with normal
procedures regarding proprietary information supplied by customers, each of the
Lenders agrees to keep confidential information relating to the Borrower or any
Subsidiary received pursuant to or in connection with this Agreement and the
transactions contemplated hereby; provided that nothing herein shall be
construed to prevent the Administrative Agent or any Lender from disclosing such
information (i) upon the order of any court or administrative agency, (ii) upon
the request or demand of any regulatory agency or authority
50
having jurisdiction over the Administrative Agent or such Lender, (iii) which
has been publicly disclosed, (iv) which has been lawfully obtained by any of the
Lenders from a Person other than the Borrower, any Subsidiary, the
Administrative Agent or any other Lender, (v) to any participant in or assignee
of, or prospective participant in or assignee of, all or any part of the rights
and obligations of the Administrative Agent or such Lender under this Agreement
or any Borrowings hereunder (provided that such participant or assignee, or
prospective participant or assignee, agrees to comply with the confidentiality
requirements set forth in this Section 10.12), (vi) to the Administrative
Agent's or such Lender's independent auditors or outside legal counsel, or (vii)
to its Affiliates.
SECTION 10.13. Survival of Warranties. All agreements,
representations and warranties made in this Agreement shall survive the
execution and delivery of this Agreement and any increase in the Commitments
under this Agreement.
SECTION 10.14. Severability. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 10.15. Captions. All Section headings are inserted for
convenience of reference only and shall not be used in any way to modify, limit,
construe or otherwise affect this Agreement.
51
Execution Copy
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX ENERGY COMPANY, as Borrower
By:__________________________________________
Name:
Title:
By:__________________________________________
Name:
Title:
A.T. XXXXXX COAL COMPANY, INC., as Guarantor
By:__________________________________________
Name:
Title:
Execution Copy
CITIBANK, N.A., as Administrative Agent and as a
Lender
By:__________________________________________
Name:
Title:
By:__________________________________________
Name:
Title:
S-2
PNC BANK, NATIONAL ASSOCIATION, as
Syndication Agent and as a Lender
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
S-3
FIRST UNION NATIONAL BANK, as Documentation
Agent and as a Lender
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
S-4
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, as a Lender
By:
-------------------------------
Name:
Title:
S-5
BANK ONE, NA, as a Lender
By:
-------------------------------
Name:
Title:
S-6
ROYAL BANK OF SCOTLAND PLC, as a Lender
By:
-------------------------------
Name:
Title:
S-7
BRANCH BANKING AND TRUST COMPANY, as a
Lender
By:
-------------------------------
Name:
Title:
S-8
THE BANK OF NEW YORK, as a Lender
By:
-------------------------------
Name:
Title:
S-9
DRESDNER BANK LATEINAMERIKA AG, as a
Lender
By:
-------------------------------
Name:
Title:
S-10
WACHOVIA BANK, N.A., as a Lender
By:
-------------------------------
Name:
Title:
X-00
XXXXXXXXX XXX XXXXXXX BANK, as a Lender
By:
-------------------------------
Name:
Title:
S-12
MELLON BANK N.A., as a Lender
By:
-------------------------------
Name:
Title:
S-13
Execution Copy
Schedule I
APPLICABLE LENDING OFFICES
-----------------------------------------------------------------------------------------------------------------------
Bank Domestic Lending Office Euro-Dollar Lending Office
-----------------------------------------------------------------------------------------------------------------------
Citibank, N.A. Citibank, N.A. Citibank, N.A.
Two Penns Way, Xxxxx 000 Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxx Card Attn: Xxx Card
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
PNC Bank, National Association PNC Bank, N.A. PNC Bank, N.A.
One PNC Plaza, 0xx Xxxxx Xxx XXX Xxxxx, 0xx Xxxxx
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000 Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxxx Attn: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
First Union National Bank First Union National Bank First Union National Bank
Roanoke, Virginia Roanoke, Virginia
Attn: Xxxxxx Xxxxx Attn: Xxxxxx Xxxxx
Telephone: Telephone:
Fax: Fax:
-----------------------------------------------------------------------------------------------------------------------
Westdeutsche Landesbank Westdeutsche Landesbank Westdeutsche Landesbank Girozentrale,
Girozentrale Girozentrale, New York Branch New York Branch
1211 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Transaction Management Attn: Transaction Management
Department Department
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
Bank One, NA Bank One, N.A. Bank One, N.A.
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000 2 Bank Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx De Los Xxxxx Attn: Xxxxxx De Los Xxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
Royal Bank of Scotland plc
-----------------------------------------------------------------------------------------------------------------------
BB&T Branch Banking & Trust Co. Branch Banking & Trust Co.
000 Xxxx Xxxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000 Xxxxxxx-Xxxxx, XX 00000
Attn: Bank Loan Syndications Attn: Bank Loan Syndications
Telephone: Telephone:
Fax: Fax:
-----------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
The Bank of New York The Bank of New York The Bank of New York
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx Attn: Xxxx Xxxxxxxx
Telephone: Telephone:
Fax: Fax:
-------------------------------------------------------------------------------------------------------------
Dresdner Bank Lateinamerika AG
-------------------------------------------------------------------------------------------------------------
Wachovia Bank, N.A. Wachovia Bank, N.A. Wachovia Bank, N.A.
0000 Xxxx Xxxx Xxxxxx 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Way Attn: Xxxxxx X. Way
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-------------------------------------------------------------------------------------------------------------
Australia New Zealand Bank Australia and New Zealand Australia and New Zealand
Banking Group Limited Banking Group Limited
1177 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxx/Xxxxx Xxxxxxxxx Attn: Xxxxxx Xxxxxxxxxxx and
Telephone: 000-000-0000 Xxxxxx Xxxxxx
Fax: 000-000-0000/4814 Telephone: 000-000-0000
Fax: 000-000-0000
-------------------------------------------------------------------------------------------------------------
Mellon Bank, X.X. Xxxxxx Bank, X.X. Xxxxxx Bank, N.A.
Two Mellon Bank Center, Room 230 Two Mellon Bank Center, Room 230
Pittsburgh, PA 15259-0001 Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx Attn: Xxxxx X. Xxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-------------------------------------------------------------------------------------------------------------
Execution Copy
Schedule II
COMMITMENTS
---------------------------------------------------------------
Lender Commitment
---------------------------------------------------------------
Citibank, N.A. $35,937,500
---------------------------------------------------------------
PNC Bank, National Association $34,375,000
---------------------------------------------------------------
First Union National Bank $34,375,000
---------------------------------------------------------------
Westdeutsche Landesbank Girozentrale $23,437,500
---------------------------------------------------------------
Bank One, NA $23,437,500
---------------------------------------------------------------
The Royal Bank of Scotland $23,437,500
---------------------------------------------------------------
BB&T $12,500,000
---------------------------------------------------------------
The Bank of New York $12,500,000
---------------------------------------------------------------
Dresdner Bank Lateinamerika AG $12,500,000
---------------------------------------------------------------
Wachovia Bank, N.A. $12,500,000
---------------------------------------------------------------
Australia New Zealand Bank $12,500,000
---------------------------------------------------------------
Mellon Bank, N.A. $12,500,000
---------------------------------------------------------------
Execution Copy
Schedule 5.08
LIENS
(AS OF ______________)
CAPITAL LEASES:
__________________
$_________________
Execution Copy
EXHIBIT A-1
FORM OF PROMISSORY NOTE
(3 Year Credit)
New York, New York
______________, 2000
For value received, XXXXXX ENERGY COMPANY, a Delaware corporation (the
"Borrower"), promises to pay to ______________________________________ (the
"Lender") or its registered assigns, for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Lender to the
Borrower pursuant to the Credit Agreement referred to below on the last day of
the Interest Period relating to such Loan. The Borrower promises to pay interest
on the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Citibank, N.A., Xxx Xxxxx Xxx,
Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx, 00000.
All Loans made by the Lender, the respective maturities thereof and all
repayments of the principal thereof shall be recorded by the Lender and, prior
to any transfer hereof, endorsed by the Lender on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
The note is one of the Notes referred to in the Credit Agreement dated as
of November 30, 2000 among the Borrower, the Guarantor, the Lenders listed on
the signature pages thereof, Citibank, N.A., as Administrative Agent, PNC Bank,
National Association, as Syndication Agent, and First Union National Bank, as
Documentation Agent, (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
XXXXXX ENERGY COMPANY
By:________________________
Name:
Title:
A-1-1
Execution Copy
Exhibit A-2
FORM OF COMPETITIVE BID PROMISSORY NOTE
U.S. $ _____________________ Dated: _______________, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXX ENERGY COMPANY, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to _____________
(the "Lender") or its registered assigns for the account of its Competitive Bid
Lending Office (as defined in the Credit Agreement dated as of November 30, 2000
among the Borrower, the Guarantor, the Lender, certain other lenders parties
thereto, Citibank, N.A., as Administrative Agent for the Lender and such other
lenders, and PNC Bank, National Association, as Syndication Agent and First
Union National Bank, as Documentation Agent (as amended or modified from time to
time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined)), on __________________, 2000, the principal amount of
U.S.$____________________.
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: _________ % per annum (calculated on the basis of a year of
360 days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the
United States to Citibank, as agent, for the account of the Lender at the office
of Citibank, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day funds.
This Promissory Note is one of the Competitive Bid Loan Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
XXXXXX ENERGY COMPANY
By:_____________________________
Name;
Title:
A-2-1
Execution Copy
LOANS AND PAYMENTS OF PRINCIPAL
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Date Loan Principal Repaid Made By
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A-2-2
Execution Copy
EXHIBIT B-1
FORM OF NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention:
Ladies and Gentlemen:
The undersigned, Xxxxxx Energy Company, refers to the Credit Agreement,
dated as of November 30, 2000 (the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, the Guarantor,
certain Lenders parties thereto, Citibank, N.A., as Administrative Agent for
said Lenders, and PNC Bank, National Association, as Syndication Agent and First
Union National Bank, as Documentation Agent, and hereby gives you notice
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.02 and Article III of the Credit Agreement:
(i) The [Domestic] [Euro-Dollar] Business Day of the Proposed
Borrowing is _________________________, 20___.
(ii) The type of Loans comprising the Proposed Borrowing are [Base
Rate Loans] [Euro-Dollar Loans].
(iii) The aggregate amount of the Proposed Borrowing is $___________.
(iv) The Interest Period for each Euro-Dollar Borrowing made as part
of the Proposed Borrowing is ____ month[s].
(v) The undersigned's long-term senior unsecured debt ratings in
effect on the date hereof are: S&P: ______ Xxxxx'x: _____.
Further, the undersigned hereby certifies that the following is, to the
best of the undersigned's knowledge, true, correct and complete:
A. Immediately after the Proposed Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
B. Immediately after the Proposed Borrowing, no event shall have
occurred and be continuing, or would result from such Proposed Borrowing or
from the application of the proceeds therefrom, which constitutes an Event
of Default;
C. except to the extent provided below, the representations and
warranties of the Borrower contained in Article IV of the Credit Agreement
(other than in Section 4.04(c) of the Credit Agreement) are true and
correct in all material respects on and as of the date hereof, before and
after giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as the date hereof, except to the
extent that any such representation or warranty expressly relates only to
an earlier date, in which case they were
B-1-1
correct as of such earlier date; provided that the representation contained
in Section 4.04(c) of the Credit Agreement need only be true and correct on
the Effective Date and on each date of an extension of any Lender's
Commitment pursuant to Section 2.16 of the Credit Agreement; and
D. After applying the proceeds of such Borrowing, not more than 25% of
the value (as determined by any reasonable method permitted by Regulation
U) of the Borrower's assets subject to the provisions of Sections 5.08 and
5.09 of the Credit Agreement shall be represented by "margin stock" (as
defined in Regulation U).
Very truly yours,
XXXXXX ENERGY COMPANY
By: ______________________________
Name:
Title:
B-1-2
Execution Copy
EXHIBIT -B-2
FORM OF NOTICE OF COMPETITIVE BID BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties to the Credit
Agreement referred to below
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx, 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Xxxxxx Energy Company, refers to the Credit
Agreement, dated as of November 30, 2000 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, the Guarantor, certain Lenders parties
thereto, Citibank, N.A., as Administrative Agent for said Lenders, and PNC Bank,
National Association, as Syndication Agent and First Union National Bank, as
Documentation Agent, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ______________________
(B) Amount of Competitive Bid Borrowing ______________________
(C) [Maturity Date] [Interest Period] ______________________
(D) Interest Rate Basis ______________________
(E) Interest Payment Date(s) ______________________
(F) _____________________ ______________________
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) except to the extent provided below, the representations
and warranties of the Borrower contained in Article IV of the Credit
Agreement (other than in Section 4.04(c) of the Credit Agreement) are
true and correct in all material respects on and as of the date hereof,
before and after giving effect to the Proposed Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as the date hereof, except to the extent that any such
representation or warranty expressly relates only to an earlier date,
in which case they were correct as of such earlier date; provided that
the representation contained in Section 4.04(c) of the Credit Agreement
need only be true and correct on the Effective Date and on each date of
an extension of any Lender's Commitment pursuant to Section 2.16 of the
Credit Agreement;
(b) Immediately after the Proposed Competitive Bid Borrowing,
no event has occurred and is continuing, or would result from such
Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default;
B-2-1
(c) After applying the proceeds of the Proposed Competitive
Bid Borrowing, not more than 25% of the value (as determined by any
reasonable method permitted by Regulation U) of the Borrower's assets
subject to the provisions of Sections 5.08 and 5.09 of the Credit
Agreement shall be represented by "margin stock" (as defined in
Regulation U); and
(d) Immediately after the Proposed Competitive Bid Borrowing,
the aggregate outstanding principal amount of the Loans will not exceed
the aggregate amount of the Commitments.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
XXXXXX ENERGY COMPANY
By:_______________________
Title:
B-2-2
Execution Copy
EXHIBIT C-1--
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
[Letterhead of Hunton & Xxxxxxxx]
[date]
To the Administrative Agent
and each of the Lenders
(each as defined herein)
Xxxxxx Energy Company:
Credit Agreement dated as of November 30, 2000
-----------------------------------------------
Dear Sirs:
We have acted as counsel to Xxxxxx Energy Company, a Delaware
corporation (the "Borrower"), and A.T. Xxxxxx Coal Company, Inc., a Virginia
corporation (the "Guarantor", and together with the Borrower, the "Credit
Parties"), in connection with the Credit Agreement dated as of November 30, 2000
(the "Credit Agreement"), among the Borrower, the Guarantor, the Lenders party
thereto (the "Lenders"), Citibank, N.A., as administrative agent for the Lenders
(the "Administrative Agent"), PNC Bank, National Association, as Syndication
Agent, and First Union National Bank, as Documentation Agent. This opinion is
being delivered to you pursuant to Section 3.01(b)(i) of the Credit Agreement.
Capitalized terms not otherwise defined herein shall have the meanings given to
them in the Credit Agreement.
In connection with this opinion, we have investigated such questions of
law, received such information from officers and representatives of the Credit
Parties and examined such other documents as we have deemed necessary or
appropriate for the purposes of this opinion, including execution copies of the
Credit Agreement and the Notes.
Based on the foregoing we are of opinion that:
1. The Borrower is a corporation duly incorporated and validly existing and in
good standing under the laws of the State of Delaware, and has all
corporate powers and all material government licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's corporate powers and have
been duly authorized by all necessary corporate action.
3. Assuming due authorization, execution and delivery of the Credit Agreement
by the Credit Parties, the Lenders and the Administrative Agent and due
authorization, execution and delivery of the Notes by the Borrower, the
Credit Agreement constitutes the legal, valid and binding obligation of the
Credit Parties and the Notes constitute legal, valid and binding
obligations of the Borrower, each enforceable against the Credit Parties
party thereto in accordance with their respective terms (subject to
applicable bankruptcy, reorganization, insolvency, fraudulent transfer,
common law trust fund doctrine, moratorium and other laws and principles
affecting creditors' rights generally from time to time in effect, general
principles of equity, regardless of whether considered in a proceeding in
equity or at law, and concepts of materiality, unconscionability,
reasonableness, impracticability or
C-1-1
impossibility of performance, good faith and fair dealing). Further, we
express no opinion as to the legality, validity, enforceability or effect,
as applicable, of any provision that provides that failure or delay in
taking action may not constitute a waiver of rights.
We express no opinion as to matters governed by any laws other than the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the Federal laws of the United States of America.
The opinions set forth herein are solely for the benefit of the
addressees, and their successors and permitted assigns and may not be
distributed to or relied upon by any person, quoted in whole or in part or
otherwise reproduced in any other document, nor is this opinion to be filed with
any governmental entity, except that this opinion may be (i) disclosed to (x)
regulatory agencies or authorities having jurisdiction over you that request or
require such disclosure, and (y) any participant in or assignee of, or
prospective participant in or assignee of, all or any part of your rights or
obligations under the Credit Agreement or any Borrowings thereunder, and (ii)
relied upon by assignees and participants in the Loans or Commitments and by any
successor Administrative Agent, in each case as though such assignees or
participants or successor Administrative Agent had been an addressee of this
opinion on the date hereof. We expressly disclaim any obligation to advise you
of any changes of law or facts that may hereafter come or be brought to our
attention which would alter the opinions herein set forth. Finally, our opinions
set forth herein are limited to the matters expressly set forth herein, and no
opinion is implied or may be inferred beyond the matters expressly so stated.
Very truly yours,
C-1-2
Execution Copy
Exhibit C-2
FORM OF OPINION OF
IN-HOUSE COUNSEL FOR THE BORROWER
[Letterhead of Fluor Corporation, Xxxxxx Energy Company,
or A.T. Xxxxxx Coal Company, Inc.]
[date]
To the Lenders and the Administrative Agent
Referred to Below
c/o Citibank, N.A.,
as Administrative Agent
Re: Credit Agreement
----------------
Dear Sirs:
I am Senior Counsel for Xxxxxx Energy Company (the "Borrower") and A.T.
Xxxxxx Coal Company, Inc. (the "Guarantor") and have acted in such capacity in
connection with the Day Credit Agreement (the "Credit Agreement") dated as of
November 30, 2000 among the Borrower, the Guarantor, the lenders listed on the
signature pages thereof (the "Lenders"), Citibank, N.A., as Administrative
Agent, PNC Bank, National Association, as Syndication Agent, and First Union
National Bank, as Documentation Agent. Terms defined in the Credit Agreement are
used herein as therein defined. This opinion is delivered pursuant to Section
3.01(b)(ii) of the Credit Agreement.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Guarantor is a corporation duly incorporated and validly
existing and in good standing under the laws of the Commonwealth of Virginia,
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
2. The execution, delivery and performance by the Guarantor of the
Credit Agreement are within the Guarantor's corporate powers and have been duly
authorized by all necessary corporate action. The execution, delivery and
performance by the Borrower and the Guarantor of the Credit Agreement and by the
Borrower of the Notes require no action by or in respect of, or filing with, any
governmental body, agency or official, and do not contravene or constitute a
default under any provision of applicable law or regulation, or of the
certificate or articles of incorporation or by-laws of the Borrower or the
Guarantor, as applicable, or, to the best of my knowledge after due inquiry, of
any agreement, judgment, injunction, order, decree or other instrument binding
upon the Borrower or the Guarantor, or result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries.
C-2-1
3. The Credit Agreement and the Notes have been duly executed and
delivered on behalf of the Borrower and the Guarantor, as applicable.
4. There is no action, suit or proceeding pending against, or to the best
of my knowledge threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator, or any Governmental Authority which
would have a Material Adverse Effect.
5. Each of the Borrower's Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
6. The Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
The opinions expressed above are limited to the matters governed by the
laws of the United States of America and the Commonwealth of Virginia, in each
case as they exist as of the date hereof, and I express no opinion as to the
laws of any other jurisdiction.
This opinion is rendered pursuant to Section 3.01(b)(ii) of the Credit
Agreement solely for the benefit of the Lenders and Citibank, N.A., as
Administrative Agent. This opinion may not be relied upon by any other party nor
may copies be delivered or furnished to any other party nor may all or portions
of this opinion be quoted, circulated or referred to in any other document
without Borrower's written consent, except that this opinion may be (i)
disclosed to (x) regulatory agencies or authorities having jurisdiction over you
that request or require such disclosure, and (y) any participant in or assignee
of, or prospective participant in or assignee of, all or any part of your rights
or obligations under the Credit Agreement or any Borrowings thereunder, and (ii)
relied upon by assignees and participants in the Loans or Commitments and by any
successor Administrative Agent, in each case as though such assignees or
participants or successor Administrative Agent had been an addressee of this
opinion on the date hereof. I do not undertake to advise you of any changes in
the opinion expressed herein resulting from matters that might hereafter come or
be brought to my attention.
Very truly yours,
_________________________________
J. Xxxxx Xxxxxxxx, Esq., Senior Counsel
Xxxxxx Energy Company
A.T. Xxxxxx Coal Company, Inc.
D-2
Execution Copy
Exhibit D--[SUBJECT TO OPINION COMMITTEE REVIEW]
FORM OF OPINION FOR ADMINISTRATIVE
AGENT'S COUNSEL
___________________, 2000
To Citibank, N.A., as Administrative Agent, and each of
the Lenders party to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to Citibank, N.A. ("Citibank"), in connection with
the preparation, execution and delivery of, and the consummation of the
transactions contemplated by each of (i) the Credit Agreement dated as of
November 30, 2000 (the "Credit Agreement"), among Xxxxxx Energy Company, a
Delaware corporation (the "Company"), the Guarantor, the Lenders party thereto,
Citibank, as Administrative Agent for the Lenders (the "Agent"), and PNC Bank,
National Association, as Syndication Agent, and First Union National Bank, as
Documentation Agent, and (ii) the Notes issued by the Company dated as of
November __, 2000 (the "Notes"), entered into by Xxxxxx Energy Company, in favor
of the Agent and each Lender. The Credit Agreement and the Notes are
collectively referred to herein as the "Finance Documents". Capitalized terms
used herein and not otherwise defined herein shall have the meanings given them
in the Credit Agreement.
In so acting, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of each of the Finance Documents and such
documents and other instruments as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. We have also assumed (i)
the valid existence of each party to the Finance Documents, (ii) that each party
to the Finance Documents has the requisite corporate power and authority to
enter into and perform each of the Finance Documents to which it is party, (iii)
the due authorization, execution and delivery of each of the Finance Documents
by each of the parties thereto, (iv) the execution, delivery and performance of
the Finance Documents by each party thereto has been duly authorized by all
necessary corporate action, and does not (a) contravene the constituent
documents of any of such party thereto, or (b) conflict with or result in the
breach of any document or instrument binding on any such party thereto, and
(iii) the legal enforceability of the Finance Documents against the parties
thereto (other than the Company).
Based on the foregoing, and subject to the qualifications stated herein, we
are of the opinion that:
Each Finance Document constitutes the legal, valid and binding obligation
of the Company and the Guarantor, as applicable, enforceable against the Company
and the Guarantor in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and
D-1
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity) and except
that (i) rights to indemnification thereunder may be limited by federal or state
securities laws or public policy relating thereto, (ii) no opinion is expressed
with respect to any provisions of the Credit Agreement insofar as it provides
that any Person purchasing a participation from any Lender pursuant thereto may
exercise set- off or similar rights with respect to such participation or that
any Lender or any other Person may exercise set-off or similar rights other than
in accordance with law.
The opinions expressed herein are limited to the laws of the State of New
York and the federal laws of the United States, and we express no opinion as to
the effect on the matters covered by this letter of the laws of any other
jurisdiction.
The opinions expressed herein are rendered solely for your benefit and your
permitted assigns and participants in connection with the transactions described
herein. Those opinions may not be used or relied upon by any other person, nor
may this letter or any copies thereof be furnished to a third party, filed with
a governmental agency, quoted, cited or otherwise referred to without our prior
written consent, other than to bank regulatory authorities or permitted assigns
or participants of any Lender.
Very truly yours,
D-2
Execution Copy
Exhibit E
FORM OF EXTENSION AGREEMENT
Citibank, N.A., as Administrative Agent
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx, 00000
Attention: ______________
Ladies and Gentlemen:
The undersigned hereby agrees to extend, effective _________, ____, its
Commitment and Termination Date under the Credit Agreement dated as of November
30, 2000 among Xxxxxx Energy Company (the "Borrower"), the Guarantor, the
lenders parties thereto (the "Lenders"), Citibank, N.A., as Administrative Agent
for the Lenders, and PNC Bank, National Association, as Syndication Agent and
First Union National Bank, as Documentation Agent (as amended or otherwise
modified from time to time, the "Credit Agreement") for one year to [date to
which the Termination Date is extended] pursuant to Section 2.15 of the Credit
Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.
This Extension Agreement shall be governed by and construed in
accordance with the laws of the State of New York. This Extension Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
[NAME OF LENDER]
By:
------------------------
Name:
Title:
E-1
Agreed and Accepted:
XXXXXX ENERGY COMPANY, as Borrower
By:__________________________________________________
Name:
Title:
A.T. XXXXXX COAL COMPANY, INC., as Guarantor
By:__________________________________________________
Name:
Title:
CITIBANK, N.A., as Administrative Agent
By:__________________________________________________
Name:
Title:
E-2
Execution Copy
Exhibit F
FORM OF NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Credit Agreement dated as of November 30, 2000, as
amended, supplemented or otherwise modified to the date hereof (said Credit
Agreement, as so amended, supplemented or otherwise modified, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined), by and among Xxxxxx Energy Company, a Delaware
corporation, as Borrower, the Guarantor, the financial institutions listed
therein as Lenders, Citibank, N.A., as Administrative Agent and the other agents
and parties thereto, this represents the Borrower's request to convert or
continue Loans as follows:
1. Date of conversion/continuation: __________________, _______
2. Amount of Loans being converted/continued: $___________________
3. Nature of conversion/continuation:
[ ] a. Conversion of Base Rate Loans to Euro-Dollar Loans
[ ] b. Conversion of Euro-Dollar Rate Loans to Base Rate Loans
[ ] c. Continuation of Euro-Dollar Rate Loans as such
4. If Loans are being continued as or converted to Euro-Dollar Rate
Loans, the duration of the new Interest Period that commences on
the Conversion/continuation date: _______________ month(s)
In the case of a Conversion to or Continuation of Euro-Dollar Rate Loans,
the undersigned officer, to the best of his or her knowledge, and the Borrower
certify that no Event of Default has occurred and is continuing under the Credit
Agreement.
DATED: _____________________ XXXXXX ENERGY COMPANY
By: __________________________
Title: _______________________
F-1
Execution Copy
Exhibit G
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of _______________, ____
Reference is made to that certain Credit Agreement, dated as of November
30, 2000 as amended, modified or supplemented to the date hereof (the "Credit
Agreement"), among Xxxxxx Energy Company (the "Borrower"), the Guarantor, the
Lenders party thereto, and Citibank, N.A., as Administrative Agent (the
"Administrative Agent") and the other parties thereto. Terms defined in the
Credit Agreement are used herein with same meaning.
________________ (the "Assignor") and ______________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, without recourse, that interest
in and to all of the Assignor's rights and obligations under the Credit
Agreement as of the date hereof (other than in respect of Competitive Bid Loans
and Competitive Bid Loan Notes)which represents the percentage interest
specified in Section 1 of Schedule 1 of the outstanding rights and obligations
of all Lenders under the Credit Agreement (other than in respect of Competitive
Bid Loans and Competitive Bid Loan Notes), including, without limitation, such
interest in the Assignor's Commitment and in all outstanding Loans that are not
Competitive Bid Loans (if any) owing to the Assignor. After giving effect to
such sale and assignment, the Assignee's Commitment and the aggregate principal
amount of Loans outstanding on the date hereof and owing to the Assignee will be
as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty (except as provided in clause (i) above) and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or any other instrument or document
furnished pursuant thereto or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any guarantor or any other person or the
performance or observance by the Borrower, any guarantor or any other party of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms and agrees that it has received a copy of the
Credit Agreement, any amendments or waivers thereto and any other documents
furnished pursuant thereto, which in each case have been requested by it,
together with copies of any financial statements requested by it, and that it
has, independently and without reliance on the Assignor, the Administrative
Agent or any other Agent or Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Assignment and Acceptance and agrees that it shall have no recourse
against the Assignor with respect to any matters relating thereto; (ii) agrees
that it will, independently and without reliance upon the Assignor, any
Administrative Agent or any other Agent or Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement
and any other documents or instruments furnished pursuant thereto; (iii)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent, by the terms thereof, together with such
powers as are
G-1
reasonably incidental thereto; (iv) confirms that it is an Eligible Assignee;
(v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) specifies as its Domestic Lending Office
and Euro-Dollar Lending Office and address for notices the respective offices
previously notified to the Administrative Agent pursuant to the Credit
Agreement; and (vii) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for the
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement or
such other documents as are reasonably necessary to indicate that all such
payments are subject to withholding taxes at a rate reduced by any applicable
tax treaty.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, the Assignor will deliver this Assignment and
Acceptance to the Administrative Agent for acceptance and recording. The
effective date for this Assignment and Acceptance shall be the date of
acceptance hereof by the Administrative Agent unless otherwise specified on
Schedule 1 hereto (the "Assignment Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as of
the Assignment Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in the Credit Agreement and in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in the Credit
Agreement and in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other
instruments and documents furnished pursuant thereto. The Assignee hereby
acknowledges that the other parties to the Credit Agreement are intended
third-party beneficiaries of this Assignment and Acceptance insofar as, after
giving effect to this Assignment and Acceptance, the Assignee shall have the
obligations of a Lender thereunder.
6. Upon such acceptance and recording by the Administrative Agent, from and
after the Assignment Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Assignment Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
[Remainder of this page intentionally left blank]
G-2
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Dated as of ____________, 20___
Section 1
Percentage interest ______%
(as percentage of total
Credit Agreement Loans/
Commitments of all Lenders)
Section 2
Assignee's Commitment $________________
Aggregate Outstanding Principal
Amount of Loans Owing to Assignee $________________
Section 3
Assignment Effective Date: __________, 20___
_________________,
as Assignor
By______________________
Title:________________
_________________,
as Assignee
By______________________
Title:________________
[Remainder of this page intentionally left blank]
G-2
Accepted this _______ day of
________________, ____
Citibank, N.A., as Administrative Agent
By___________________________
Name:
Title:
Consented to this _______ day of
________________, ____
Xxxxxx Energy Company, as Borrower
By___________________________
Name:
Title:
G-2
[LETTERHEAD OF WEIL, GOTSHAL & XXXXXX LLP]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
$250,000,000
CREDIT AGREEMENT
Dated as of November 30, 2000
among
XXXXXX ENERGY COMPANY,
as Borrower
and
A.T. XXXXXX COAL COMPANY, INC.,
as Guarantor
and
CITIBANK, N.A.,
as Administrative Agent
and
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent
FIRST UNION NATIONAL BANK,
as Documentation Agent
and
THE LENDERS PARTY HERETO
Lead Arranged by
XXXXXXX XXXXX BARNEY INC.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
ARTICLE I DEFINITIONS......................................................................... 1
Section 1.01. Definitions.................................................................... 1
Section 1.02. Accounting Terms and Determinations............................................ 10
Section 1.03. Types of Borrowings............................................................ 10
Section 1.04. Pricing Levels................................................................. 10
Section 1.05. Certain Terms.................................................................. 11
ARTICLE II THE CREDITS......................................................................... 12
Section 2.01. Commitments to Lend ........................................................... 12
Section 2.02. Notice of Borrowings........................................................... 12
Section 2.03. Competitive Bid Loans.......................................................... 13
Section 2.04. Notice to Lenders; Funding of Loans............................................ 16
Section 2.05. Register; Optional Notes....................................................... 17
Section 2.06. Voluntary Conversion or Continuation of Loans.................................. 18
Section 2.07. Interest Rates................................................................. 18
Section 2.08. Facility Fees; Utilization Fee................................................. 19
Section 2.09. Optional Termination or Reduction of Commitments............................... 19
Section 2.10. Mandatory Termination of Commitments........................................... 20
Section 2.11. Optional Prepayments........................................................... 20
Section 2.12. General Provisions as to Payments.............................................. 20
Section 2.13. Computation of Interest and Fees .............................................. 21
Section 2.14. Place of Loans................................................................. 21
Section 2.15. Extension of Commitments....................................................... 21
ARTICLE III CONDITIONS TO EFFECTIVENESS AND BORROWINGS............................................ 23
Section 3.01. Conditions Precedent to Effectiveness.......................................... 23
Section 3.02. Conditions Precedent to Each Borrowing and Extension of Commitment.............. 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................ 25
Section 4.01. Corporate Existence and Power; Compliance with Law............................. 25
Section 4.02. Corporate and Governmental Authorization; Contravention........................ 25
Section 4.03. Binding Effect................................................................. 25
Section 4.04. Financial Information ......................................................... 25
Section 4.05. Litigation..................................................................... 26
Section 4.06. Compliance with ERISA.......................................................... 26
Section 4.07. Taxes.......................................................................... 26
Section 4.08. Material Subsidiaries.......................................................... 26
Section 4.09. Not an Investment Company...................................................... 26
i
Section 4.10. Business of Borrower; Properties............................................... 26
Section 4.11. No Misleading Statements....................................................... 27
Section 4.12. Environmental Matters.......................................................... 27
Section 4.13. Pari Passu Obligations......................................................... 27
ARTICLE V COVENANTS........................................................................... 27
Section 5.01. Information.................................................................... 27
Section 5.02. Payment of Obligations......................................................... 29
Section 5.03. Maintenance of Property; Insurance............................................. 29
Section 5.04. Conduct of Business and Maintenance of Existence............................... 29
Section 5.05. Compliance with Laws........................................................... 29
Section 5.06. Keeping of Records; Inspection of Property, Books and Records.................. 29
Section 5.07. Financial Covenants............................................................ 30
Section 5.08. Negative Pledge................................................................ 30
Section 5.09. Consolidations, Mergers, Sales of Assets and Acquisitions...................... 31
Section 5.10. Use of Proceeds................................................................ 31
Section 5.11. Payment of Taxes, Etc.......................................................... 32
Section 5.12. Change in Nature of Business................................................... 32
Section 5.13. Restrictions on Subsidiary Distributions; No New Negative Pledge............... 32
ARTICLE VI DEFAULTS............................................................................ 32
Section 6.01. Events of Default.............................................................. 32
Section 6.02. Notice of Default.............................................................. 35
ARTICLE VII THE ADMINISTRATIVE AGENT............................................................ 35
Section 7.01. Authorization and Action....................................................... 35
Section 7.02. Agents' Reliance, Etc.......................................................... 35
Section 7.03. Citibank and Affiliates........................................................ 35
Section 7.04. Lender Credit Decision......................................................... 36
Section 7.05. Indemnification................................................................ 36
Section 7.06. Successor Administrative Agent................................................. 36
Section 7.07. Administrative Agent's Fee..................................................... 37
Section 7.08. Co-Agents...................................................................... 37
ARTICLE VIII CHANGE IN CIRCUMSTANCES............................................................. 37
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair....................... 37
Section 8.02. Illegality..................................................................... 38
Section 8.03. Increased Cost and Reduced Return.............................................. 38
Section 8.04. Substitution of Loans for Affected Euro-Dollar Loans........................... 40
ii
Section 8.05. Substitution of Lender......................................................... 40
ARTICLE IX GUARANTEE........................................................................... 40
Section 9.01. Unconditional Guarantee........................................................ 40
Section 9.02. Guarantee Absolute............................................................. 40
Section 9.03. Waivers........................................................................ 41
Section 9.04. Subrogation.................................................................... 41
Section 9.05. Survival....................................................................... 42
Section 9.06. Limitation of AT Guaranty...................................................... 42
ARTICLE X MISCELLANEOUS....................................................................... 43
Section 10.01. Notices........................................................................ 43
Section 10.02. No Waivers..................................................................... 43
Section 10.03. Expenses; Taxes; Indemnification............................................... 43
Section 10.04. Sharing of Set-Offs............................................................ 47
Section 10.05. Amendments and Waivers......................................................... 47
Section 10.06. Successors and Assigns......................................................... 47
Section 10.07. Collateral..................................................................... 50
Section 10.08. New York Law................................................................... 50
Section 10.09. Consent to Jurisdiction; Waiver of Immunities.................................. 50
Section 10.10. Waiver of Trial by Jury........................................................ 50
Section 10.11. Counterparts................................................................... 50
Section 10.12. Confidentiality................................................................ 50
Section 10.13. Survival of Warranties......................................................... 51
Section 10.14. Severability................................................................... 51
Section 10.15. Captions....................................................................... 51
iii
EXHIBITS
Exhibit A-1 Form of Note
Exhibit A-2 Form of Competitive Bid Loan Note
Exhibit B-1 Form of Notice of Borrowing
Exhibit B-2 Form of Competitive Bid Notice of Borrowing
Exhibit C-1 Form of Opinion of Counsel for the Borrower
Exhibit C-2 Form of Opinion of Senior Counsel of the Borrower
Exhibit D Form of Opinion of Counsel for the Administrative Agent
Exhibit E Form of Extension Agreement
Exhibit F Form of Notice of Conversion/Continuation
Exhibit G Form of Assignment and Acceptance
SCHEDULES
Schedule I Lending Offices
Schedule II Commitments
Schedule 5.08 Liens
iv
