EXHIBIT 10.1
FORM OF
CREDIT AGREEMENT
BY AND AMONG
NRP (OPERATING) LLC, AS BORROWER,
THE LENDERS PARTY HERETO,
PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT,
BRANCH BANKING AND TRUST COMPANY, AS SYNDICATION AGENT, AND
BANK OF MONTREAL
AND
BNP PARIBAS,
AS DOCUMENTATION AGENTS,
DATED AS OF ________, 2002
PNC CAPITAL MARKETS, INC., AS LEAD ARRANGER
TABLE OF CONTENTS
Page
----
1. DEFINITIONS..........................................................................1
1.1 Defined Terms...............................................................1
1.2 Accounting Principles......................................................16
1.3 Other Definitional Conventions and Rules of Construction...................16
2. THE REVOLVING CREDIT LOANS..........................................................17
2.1 Revolving Credit Loans.....................................................17
2.1a Revolving Credit Facility..................................................17
2.1b Revolving Credit Commitment of Each Lender.................................17
2.1c Revolving Credit Notes.....................................................17
2.1d Revolving Credit Loan Request..............................................17
2.1e Making Revolving Credit Loans..............................................18
2.2 Interest Rates, Interest Payment and Certain Provisions Relating to
Interest and Fees .........................................................18
2.2a Payments of Interest.......................................................18
2.2b Interest Rate Options......................................................19
2.2c Interest Periods; Limitations on Elections.................................19
2.2d Election, Conversion or Renewal of Interest Rate Options...................20
2.2e Notification of Election of an Interest Rate Option........................20
2.2f Interest After Default.....................................................20
2.3 Yield-Protection, Capital Adequacy and Miscellaneous Provisions
Relating to Euro-Rate .....................................................21
2.3a Yield Protection...........................................................21
2.3b Capital Adequacy...........................................................22
2.3c Euro-Rate Unascertainable..................................................23
2.3d Illegality.................................................................23
2.4 Fees.......................................................................24
2.4a Commitment Fee.............................................................24
2.4b Agent's Fee................................................................24
2.4c Letter of Credit Fee and Fronting Fee......................................24
2.5 Calculation of Interest and Certain Fees...................................24
2.6 Letter of Credit Sub-Facility..............................................24
2.6a Issuance of Letters of Credit..............................................24
2.6b Letter of Credit Fees......................................................25
2.6c Letter of Credit Fees Upon Default.........................................25
2.6d Disbursements, Reimbursement...............................................25
2.6e Repayment of Participation Advances........................................27
2.6f Documentation..............................................................27
2.6g Determinations to Honor Drawing Requests...................................27
2.6h Nature of Participation and Reimbursement Obligations......................27
2.6i Indemnity..................................................................28
2.6j Liability for Acts and Omissions...........................................29
2.6k Uniform Customs............................................................29
2.7 Substitution or Replacement of a Lender....................................30
2.8 Loan Repayment and Prepayment..............................................30
-i-
TABLE OF CONTENTS
2.8a Voluntary Prepayments......................................................30
2.8b Scheduled Repayment........................................................31
2.9 Additional Payments by the Borrower........................................31
2.10 Changes of Commitments; Voluntary Reduction of Availability................31
2.11 Loan Account...............................................................32
2.12 Payment from Accounts Maintained by Borrower...............................32
2.13 Time, Place and Manner of Payments.........................................32
2.14 Guaranty...................................................................33
3. REPRESENTATIONS AND WARRANTIES......................................................33
3.1 Existence..................................................................33
3.2 Capitalization: Ownership..................................................33
3.3 Subsidiaries and Other Investments.........................................33
3.4 Corporate Authority........................................................33
3.5 Enforceability.............................................................34
3.6 No Restrictions, No Default................................................34
3.7 Financial Matters..........................................................34
3.7a Financial Statements.......................................................34
3.7b Pro Forma Financials.......................................................35
3.8 Absence of Litigation......................................................35
3.9 Tax Returns and Payments...................................................35
3.10 Pension Plans..............................................................35
3.11 Fiscal Year................................................................36
3.12 Condition of and Title to Assets...........................................36
3.13 Insurance..................................................................36
3.14 Labor and Employment Matters...............................................36
3.15 Compliance with Applicable Laws............................................36
3.16 Environmental Matters......................................................36
3.17 Consents and Approvals.....................................................37
3.18 Regulations T, U and X.....................................................37
3.19 Investment Company Act.....................................................37
3.20 Public Utility Holding Company Act.........................................37
3.21 Senior Debt Status.........................................................37
3.22 Intellectual Property......................................................37
3.23 Leases.....................................................................37
3.24 Solvency...................................................................38
3.25 Tax Treatment..............................................................38
3.26 Disclosure.................................................................38
3.27 Transactions with Affiliates...............................................38
4. AFFIRMATIVE COVENANTS...............................................................38
4.1 Use of Proceeds............................................................38
4.2 Furnishing Information.....................................................38
4.3 Visitation.................................................................41
4.4 Preservation of Existence; Qualification...................................41
4.5 Compliance with Laws and Contracts.........................................42
-ii-
TABLE OF CONTENTS
4.6 Payment of Taxes and Other Liabilities.....................................42
4.7 Insurance..................................................................42
4.8 Maintenance of Properties..................................................42
4.9 Plans and Benefit Arrangement..............................................42
4.10 Senior Debt Status.........................................................43
4.11 Leases; Material Contracts.................................................43
4.12 Clean-Down Period..........................................................43
4.13 Environmental Indemnification..............................................43
5. NEGATIVE COVENANTS..................................................................43
5.1 Dividends, Etc. ...........................................................43
5.2 Encumbrances...............................................................44
5.3 Financial Covenants........................................................44
5.3a Leverage Ratio.............................................................44
5.3b Interest Coverage Ratio....................................................44
5.3c Calculation of Consolidated EBITDDA........................................44
5.4 Acquisitions...............................................................45
5.5 Indebtedness...............................................................45
5.6 Loans, Acquisitions and Investments........................................46
5.7 Sales of Assets............................................................46
5.8 Merger.....................................................................47
5.9 Regulation T, U and X Compliance...........................................47
5.10 ERISA......................................................................47
5.11 No Limitation on Dividends and Distributions...............................47
5.12 Negative Pledges...........................................................47
5.13 Changes in Organizational Documents........................................48
5.14 Change in Nature of Business...............................................48
5.15 Changes in Omnibus Agreement...............................................48
5.16 Transactions with Affiliates...............................................48
6. CONDITIONS PRECEDENT TO DISBURSEMENTS AND ISSUANCE OF LETTERS OF CREDIT.............48
6.1 All Disbursements..........................................................48
6.1a No Default.................................................................48
6.1b Representations Correct....................................................49
6.1c No Material Adverse Change.................................................49
6.1d Loan Request/Application...................................................49
6.1d Loan Request/Application...................................................49
6.2 Conditions Precedent to Initial Borrowings.................................49
7. DEFAULTS............................................................................51
7.1 Payment Default............................................................51
7.2 Nonpayment of Other Indebtedness...........................................51
7.3 Insolvency.................................................................51
7.3a Involuntary Proceedings....................................................51
7.3b Voluntary Proceedings......................................................52
-iii-
TABLE OF CONTENTS
7.4 Termination of Existence...................................................52
7.5 Failure to Comply with Loan Documents......................................52
7.5a Failure to Comply with Article V Covenants and Certain Article IV
Covenants..................................................................52
7.5b Failure to Comply with Other Covenants and Loan Documents..................52
7.6 Misrepresentation..........................................................52
7.7 Adverse Judgments, Etc ....................................................53
7.8 Invalidity or Unenforceability.............................................53
7.9 ERISA......................................................................53
7.10 Change in Control..........................................................53
7.11 Consequences of an Event of Default........................................53
7.12 Remedies Upon Default......................................................53
7.13 Cash Collateral............................................................54
8. AGREEMENT AMONG LENDERS.............................................................55
8.1 Appointment and Grant of Authority.........................................55
8.2 Delegation of Duties.......................................................55
8.3 Reliance by Agent on Lenders for Funding...................................55
8.4 Non-Reliance on Agent......................................................55
8.5 Responsibility of Agent and Other Matters..................................56
8.5a Ministerial Nature of Duties...............................................56
8.5b Limitation of Liability....................................................56
8.5c Reliance...................................................................56
8.6 Actions in Discretion of Agent: Instructions from the Lenders..............56
8.7 Indemnification............................................................57
8.8 Agent's Rights as a Lender.................................................57
8.9 Payment to Lenders.........................................................57
8.10 Pro Rata Sharing...........................................................58
8.11 Successor Agent............................................................58
8.11a Resignation of Agent.......................................................58
8.11b Rights of the Former Agent.................................................58
8.12 Notice of Default..........................................................58
8.13 Notices....................................................................58
8.14 Holders of Revolving Credit Notes..........................................59
8.15 Calculations...............................................................59
8.16 Beneficiaries..............................................................59
9. GENERAL PROVISIONS..................................................................59
9.1 Amendments and Waivers.....................................................59
9.2 Expenses...................................................................60
9.3 Notices....................................................................61
9.3a Notice to the Borrower.....................................................62
9.3b Notice to the Agent........................................................62
9.3c Notice to the Lenders......................................................63
9.4 Tax Withholding............................................................63
9.5 Successors and Assigns.....................................................63
-iv-
TABLE OF CONTENTS
9.6 Assignments and Participations.............................................64
9.6a Assignments................................................................64
9.6b Assignment Register........................................................65
9.6c Participations.............................................................65
9.6d Provisions for Special Purpose Funding Vehicles............................66
9.7 Severability...............................................................66
9.8 Survival...................................................................67
9.9 Governing Law..............................................................67
9.10 Non-Business Days..........................................................67
9.11 Integration................................................................67
9.12 Headings, Etc..............................................................67
9.13 Set-Off....................................................................67
9.14 Consent to Forum...........................................................67
9.15 Waiver of Jury Trial.......................................................68
9.16 Indemnity..................................................................68
9.17 Counterparts...............................................................68
9.18 Limitation on Recourse to General Partner..................................69
9.19 Confidentiality............................................................69
Exhibit A - Form of Revolving Credit Notes
Exhibit B - Form of Revolving Credit Loan Request
Exhibit C - Form of Compliance Certificate
Exhibit D-1 - Form of Guaranty Agreement (Parent)
Exhibit D-2 - Form of Guaranty Agreement (Subsidiary)
Exhibit E - Form of Opinion of Special Counsel to the Borrower
Exhibit F - Form of Assignment and Assumption Agreement
Exhibit G - Form of Pro Forma Compliance Certificate
-v-
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of _______, 2002, by and among NRP
(OPERATING) LLC, a Delaware limited liability company (as further defined below,
the "Borrower"), the financial institutions listed on the signature pages
hereto, and each other financial institution which, from time to time, becomes a
party hereto in accordance with Subsection 9.6a (individually, a "Lender" and
collectively, the "Lenders") and PNC BANK, NATIONAL ASSOCIATION, a national
banking association, as Administrative Agent for the Lenders (in such capacity,
and as further defined below, the "Agent"), BANK OF MONTREAL and BNP PARIBAS, as
Documentation Agents for the Lenders, and BRANCH BANKING AND TRUST COMPANY, as
Syndication Agent for the Lenders.
WITNESSETH:
WHEREAS, the Borrower desires to obtain a Revolving Credit Commitment
(as defined below) from each of the Lenders pursuant to which Revolving Credit
Loans, in a maximum aggregate principal amount at any one time outstanding not
to exceed $100,000,000, will be made to the Borrower from time to time prior to
the Termination Date (as defined below); and
WHEREAS, each Lender is willing, on the terms and subject to the
conditions hereinafter set forth, to extend such Revolving Credit Commitment and
make such Revolving Credit Loans to the Borrower.
NOW, THEREFORE, in consideration of mutual promises contained herein and
other valuable consideration and with the intent to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS.
1.1 DEFINED TERMS. As used herein the following terms shall have the
meaning specified unless the context otherwise requires:
"Adjusted Euro-Rate" has the meaning set forth in item (ii) of
Subsection 2.2b.
"Affiliate" as to any Person shall mean any other Person (i) which
directly or indirectly controls, is controlled by, or is under common control
with such Person, (ii) which beneficially owns or holds 10% or more of any class
of the voting or other equity interests of such Person, or (iii) 10% or more of
any class of voting interests or other equity interests of which is beneficially
owned or held, directly or indirectly, by such Person. Control, as used in this
definition, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise, including
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
"Agent" means PNC Bank, National Association in its capacity as
Administrative Agent or its successor appointed pursuant to Section 8.11 hereof
and as the issuer of Letters of Credit.
"Agent's Fees" means those certain fees for the sole account of the
Agent set forth in the Agent's Letter.
"Agent's Letter" has the meaning set forth in Subsection 2.4b.
"Agreement" means this Credit Agreement, together with the exhibits and
schedules hereto and all extensions, renewals, amendments, modifications,
substitutions and replacements hereto and hereof.
"Applicable Euro-Rate Margin" means for each Euro-Rate Portion of all
Revolving Credit Loans, the percentage expressed in basis points per annum
determined from time to time based upon the ratio of the Parent's Consolidated
Total Indebtedness as at the end of each Fiscal Quarter to the Parent's
Consolidated EBITDDA for the four most recently completed Fiscal Quarters
treated as a single accounting period set forth under the relevant column
heading below, all as determined by the Parent's financial statements and
Compliance Certificate for the preceding Fiscal Quarter or Fiscal Year delivered
to the Agent pursuant to Section 4.2 below:
--------------------------------------------------------------------------------------------------
RATIO OF CONSOLIDATED TOTAL INDEBTEDNESS TO
CONSOLIDATED EBITDDA APPLICABLE EURO-RATE MARGIN
--------------------------------------------------------------------------------------------------
LEVEL I
--------------------------------------------------------------------------------------------------
Less than or equal to 1.25 to 1.00 125 Basis Points
--------------------------------------------------------------------------------------------------
LEVEL II
--------------------------------------------------------------------------------------------------
Greater than 1.25 to 1.00 but less than or 150 Basis Points
equal to 1.75 to 1.00
--------------------------------------------------------------------------------------------------
LEVEL III
--------------------------------------------------------------------------------------------------
Greater than 1.75 to 1.00 175 Basis Points
--------------------------------------------------------------------------------------------------
Adjustments to the Applicable Euro-Rate Margin resulting from changes in the
ratio of the Parent's Consolidated Total Indebtedness to Consolidated EBITDDA
shall be made without notice to the Borrower. Such adjustments will be effective
on the date on which the Parent's financial statements and Compliance
Certificate are due to be delivered to the Lenders pursuant to Section 4.2;
provided, however, that if the Borrower has failed to deliver, or caused to be
delivered, such financial statements and Compliance Certificate on or before the
date such delivery is due, then the ratio of the Parent's Consolidated Total
Indebtedness to Consolidated EBITDDA shall be deemed, solely for the purposes of
this definition, to be greater than 1.75 to 1.00 until such time as they are
actually delivered.
"Arch Coal" means Arch Coal, Inc., a Delaware corporation.
"Ark Land" means Ark Land Company, a Delaware corporation.
"Assignment and Assumption Agreement" means an Assignment and Assumption
Agreement in the form of Exhibit "F" hereto.
-2-
"Authorized Officer" means the President, any Vice President, the Chief
Financial Officer, the Treasurer or the principal accounting officer of the
respective Loan Party or general partner if such Loan Party is a partnership or
managing member if such Loan Party is a limited liability company. The Agent and
the Lenders shall be entitled to rely on the incumbency certificates delivered
pursuant to Section 6.2 for the initial designation of each Authorized Officer.
Additions or deletions to the list of Authorized Officers may be made by the
respective Loan Party at any time by delivering to the Agent for redelivery to
each Lender a revised incumbency certificate.
"Available Cash" has the meaning set forth in Section 1.1 of the MLP
Agreement as in effect on the Closing Date with the following clarifications:
(i) in clause (a)(ii) the words "working capital borrowings" are intended to
refer to "any Distribution Loan," and (ii) cash reserves necessary to comply
with clause (b)(ii) are intended to include without limitation any General
Revolving Loan then outstanding.
"Bank Indebtedness" means (i) the Revolving Credit Loans then
outstanding, together with all increases or refinancings thereof, (ii) the
aggregate stated amount of Letters of Credit outstanding hereunder, (iii) the
aggregate amount of unreimbursed draws on Letters of Credit issued hereunder,
(iv) all interest, fees and any other amounts due hereunder or under any of the
other Loan Documents, including by reason of advances by the Lenders, made to,
or for the account of, the Borrower pursuant to this Agreement or any other Loan
Document, and (v) all reasonable out-of-pocket expenses incurred by the Lenders
and the Agent (including but not limited to fees and expenses of counsel).
"Base Rate" means, for any day, the higher of (i) the sum of (A) the
Federal Funds Effective Rate for such day plus (B) fifty (50) basis points
(.50%) per annum and (ii) the Prime Rate, as of such day.
"Base Rate Option" means the interest rate option described in item (i)
of Subsection 2.2b.
"Base Rate Portion" means a Revolving Credit Loan or a portion thereof
which bears, or is to bear, interest at the Base Rate.
"Borrower" means NRP (Operating) LLC, a Delaware limited liability
company and its successors and permitted assigns.
"Borrowing Date" means the date on which any Disbursements are to be
made hereunder.
"Business Day" means, any day other than a Saturday or Sunday or a legal
holiday on which commercial banks are authorized or required to be closed for
business in Pittsburgh, Pennsylvania or New York, New York and, if the
applicable Business Day relates to any Disbursement to which the Euro-Rate
Option applies, such day must also be a day on which dealings are carried on in
the London interbank market.
"Capital Adequacy Event" has the meaning given it in Subsection 2.3b.
-3-
"Capital Compensation Amount" has the meaning given it in Subsection
2.3b.
"Cash Collateral Account" has the meaning given it in Section 7.13.
"Change in Control" means (i) such time as the Parent ceases to own
directly all of the member interests of the Borrower, (ii) such time as the
General Partner ceases to own directly all of the general partner interests of
the Parent, or (iii) such time as Xxxxxx X. Xxxxxxxxx, Xx., the WPP Group and/or
one or more of their direct or indirect, wholly-owned Subsidiaries cease to own
more than 50% of the partnership interests of the General Partner.
"Closing" means the execution and delivery of this Agreement which
execution and delivery shall occur at the offices of Xxxxxxxx Ingersoll
Professional Corporation in Pittsburgh, Pennsylvania, at 10:00 A.M. (eastern
time) on ________, 2002, or such other date and time as is mutually agreeable to
the parties hereto.
"Closing Date" means the day on which the Closing occurs.
"Coal" shall mean all types of marketable coal, including without
limitation, bituminous and sub-bituminous coal, and lignite.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation thereto, together with all regulations
promulgated and rulings issued thereunder.
"Commitment Fee" means the fee described in Subsection 2.4a.
"Commitment Fee Rate" means a rate per annum equal to fifty basis points
(0.50%).
"Compliance Certificate" means a Compliance Certificate substantially in
the form of Exhibit "C".
"Consolidated" means the consolidation of the accounts of any two or
more Persons in accordance with GAAP.
"Consolidated EBITDDA" means, for any period, Consolidated Net Income
for such period, (x) excluding therefrom (A) any non-cash extraordinary items of
gain or loss (including without limitation those items created by mandated
changes in accounting treatment) and (B) any gain or loss of any other Person
accounted for on the equity method, except to the extent of cash distributions
received during the relevant period (y) plus the aggregate amounts deducted in
determining Consolidated Net Income for such period in respect of (i)
Consolidated Interest Expense, (ii) income taxes, (iii) depletion expense, (iv)
depreciation expense and (iv) amortization expense. Notwithstanding the
foregoing, in the calculation of Consolidated EBITDDA for each of the Fiscal
Quarters ending September 30, 2002, December 31, 2002, March 31, 2003, June 30,
2003 and September 30, 2003, respectively, Consolidated EBITDDA shall be
determined as follows: (i) for the Fiscal Quarter ending September 30, 2002,
Consolidated EBITDDA shall be Historical EBITDDA, (ii) for the Fiscal Quarter
ending December 31, 2002, Consolidated EBITDDA shall be the Historical EBITDDA
multiplied by the
-4-
sum of 365 minus the number of days elapsed from the Closing Date until December
31, 2002 divided by 365, plus Consolidated EBITDDA of the Parent for the period
beginning on the Closing Date and ending December 31, 2002, (iii) for the Fiscal
Quarter ending March 31, 2003, Consolidated EBITDDA shall be the Historical
EBITDDA of the Parent multiplied by the sum of 365 minus the number of days
elapsed from the Closing Date until March 31, 2002 divided by 365, plus
Consolidated EBITDDA of the Parent for the period beginning on the Closing Date
and ending March 31, 2003, (iv) for the Fiscal Quarter ending June 30, 2003,
Consolidated EBITDDA shall be Historical EBITDDA multiplied by the sum of 365
minus the number of days elapsed from the Closing Date until June 30, 2003, plus
Consolidated EBITDDA of the Parent for the period beginning on the Closing Date
and ending June 30, 2003, and (v) for the Fiscal Quarter ending September 30
2003, Consolidated EBITDDA shall be Historical EBITDDA multiplied by the sum of
365 minus the number of days elapsed from the Closing Date until September 30,
2003, plus Consolidated EBITDDA of the Parent for the period beginning on the
Closing Date and ending September 30, 2003.
"Consolidated Interest Expense" means, for the relevant period, on a
Consolidated basis, the sum of all interest (including the interest portion of
any capitalized lease obligations) and letter of credit fees or commissions due
and payable by the Parent and its Consolidated Subsidiaries with regard to
Indebtedness for such period.
"Consolidated Net Income" means the net income (or deficit) of the
Parent and its Consolidated Subsidiaries, for the period in question, after
deducting all operating expenses, provisions for all taxes and reserves
(including reserves for all deferred income taxes, if applicable) and all other
proper deductions, all determined on a Consolidated basis.
"Consolidated Subsidiaries" shall mean the Subsidiaries of the Borrower
whose accounts are consolidated in accordance with GAAP.
"Consolidated Total Indebtedness" means the Indebtedness of the Parent
and its Consolidated Subsidiaries determined on a Consolidated basis.
"Contamination" means the uncontained presence of Hazardous Substances
at any real property of the Borrower or any Subsidiary of the Borrower, whether
owned or leased, which may require clean-up or remediation under any applicable
Environmental Law.
"Contributors" has the meaning given it in Section 3.7a.
"Disbursement" means each advance of funds by a Lender hereunder of a
Revolving Credit Loan.
"Distribution Loan" has the meaning given it in Subsection 2.1a.
"Dollars" or "$" means the legal tender of the United States of America.
"Drawing Date" has the meaning given it in Subsection 2.6d(B).
-5-
"Encumbrance" means any encumbrance, mortgage, lien, charge, pledge,
security interest, priority payment, conditional sales agreement right, or other
title retention agreement right (including any right under a lease which, in
accordance with GAAP, would be treated as a capitalized item) in, upon or
against any asset of any Person.
"Environmental Claim" means any claim, suit, notice, order, demand or
other written communication made by any Person with respect to the Borrower or
any Subsidiary of the Borrower or any of their respective properties, whether
owned or leased, that: (i) asserts a violation of an applicable Environmental
Law; (ii) asserts a liability under an applicable Environmental Law; (iii)
orders investigation, corrective action, remediation or other legally
enforceable response under an applicable Environmental Law; (iv) demands
information under an applicable Environmental Law; (v) alleges personal injury
or property damage resulting from exposure to or the presence of Hazardous
Substances; or (vi) alleges that there is or may be Contamination.
"Environmental Law(s)" means any and all Governmental Rules and any and
all decrees, permits, licenses, agreements, authorizations or other governmental
restrictions of any Governmental Authority relating to the environment or the
release of any Hazardous Substances into the environment, whether now in
existence or hereafter enacted, agreed to, adopted, issued or otherwise becoming
effective.
"ERISA" means the Employee Retirement Income Security Act of 1974,
together with the regulations thereunder, as now in effect and as hereafter from
time to time amended or any successor statute.
"ERISA Affiliate" means, as of any date, the Borrower and any member of
a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control and all other entities, which, together with
the Borrower, are treated as of such date as a single employer under Section 414
of the Code.
"Euro-Rate" means, with respect to portions of the Revolving Credit
Loans to which the Euro-Rate Option applies for any Interest Period, the
interest rate per annum determined by the Agent by dividing (the resulting
quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum)
(i) the rate of interest determined by the Agent in accordance with its usual
procedures (which determination shall be conclusive, absent manifest error) to
be the average of the London interbank offered rates for U.S. Dollars quoted by
the British Bankers' Association as set forth on Dow Xxxxx Markets Service
(formerly known as Telerate) display page 3750 (or appropriate successor or, if
British Bankers' Association or its successor ceases to provide such quotes, a
comparable replacement determined by the Agent), two (2) Business Days prior to
the first day of such Interest Period for an amount comparable to such Revolving
Credit Loan and having a Borrowing Date and a maturity comparable to such
Interest Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. The Euro-Rate may also be expressed by the following formula:
-6-
Average of London interbank offered rates on
Dow Xxxxx Markets Service display page 3750
Euro-Rate = as quoted by BBA or appropriate successor
----------------------------------------------
1.00 - Euro-Rate Reserve Percentage
"Euro-Rate Option" means the interest rate option described in item (ii)
of Subsection 2.2b.
"Euro-Rate Portion" means a Revolving Credit Loan, or portion thereof,
which bears, or is to bear, interest at the Adjusted Euro-Rate.
"Euro-Rate Reserve Percentage" means, as of any day, the maximum
effective percentage (expressed as a decimal, rounded upward to the nearest
1/100th of 1%), as determined in good faith by the Agent (which determination
shall be conclusive), which is in effect on such day as prescribed by the Board
of Governors of the Federal Reserve System (or any successor) for determined the
reserve requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities").
"Event of Default" has the meaning given it in Article VII.
"Federal Funds Effective Rate" means, for any day, the rate per annum
(based on a year of 360 days and the actual days elapsed and rounded upward to
the nearest 1/100th of 1%) announced by the Federal Reserve Bank of New York (or
any successor) on such day as being the weighted average of the rates on
overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by Federal Reserve Bank New York
(or any successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; provided, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day for which such rate was announced.
"Fees" means collectively the Agent's Fee, the Fronting Fee, the Letter
of Credit Fee and the Commitment Fee.
"Fiscal Quarter" means the three month fiscal period of the Parent or
the Borrower, as the case may be, beginning on each October 1, January 1, April
1 and July 1 and ending on the succeeding December 31, March 31, June 30 and
September 30, respectively.
"Fiscal Year" means each fiscal period of the Parent or the Borrower, as
the case may be, beginning January 1 and ending on the next succeeding December
31.
"Form S-1" means the Parent's Form S-1 Registration Statement No.
333-86582, as amended.
"Fronting Fee" has the meaning given it in Subsection 2.6b.
-7-
"GAAP" means generally accepted accounting principles as are in effect
from time to time in the United States of America, subject to the provision of
Section 1.2, which shall include, but not be limited to, the official
interpretations thereof as defined by the Financial Accounting Standards Board,
its predecessors and its successors, and applied on a consistent basis both as
to classification of items and amounts.
"General Partner" means NRP (GP) LP, a Delaware limited partnership and
the sole general partner of the Parent.
"General Revolving Loan" " has the meaning given it in Subsection 2.1a.
"Governmental Acts" has the meaning given it in Subsection 2.6i.
"Governmental Authority" means the government of the United States or
the government of any state or locality therein, any political subdivision or
any governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body or entity, or other regulatory bureau,
authority, body or entity of the United States or any state or locality therein,
including the Federal Deposit Insurance Corporation, the Office of the
Comptroller of the Currency and the Board of Governors of the Federal Reserve
System, and any central bank of any other country or any comparable authority.
"Governmental Rule" means any law, statute, rule, regulation, ordinance,
order, judgment, guideline or decision of any Governmental Authority.
"Granting Lender" has the meaning given it in Subsection 9.6d.
"Guarantor" means the Parent and each Subsidiary of the Parent (other
than the Borrower) in existence on the Closing Date and each Person which
becomes a Subsidiary of the Parent after the Closing Date.
"Guaranty" or "Guarantee" means any obligation, direct or indirect, by
which a Person undertakes to guaranty, assume or remain liable for the payment
or performance of another Person's obligations, including but not limited to (i)
endorsements of negotiable instruments, (ii) discounts with recourse, (iii)
agreements to pay or perform upon a second Person's failure to pay or perform,
(iv) remaining liable on obligations assumed by a second Person, (v) agreements
to maintain the capital, working capital solvency or general financial condition
of a second Person and (vi) agreements for the purchase or other acquisition of
products, materials, supplies or services, if in any case payment therefor is to
be made regardless of the non-delivery of such products, materials or supplies
or the non-furnishing of such services.
"Guaranty Agreement" means any guaranty agreement executed by a
Guarantor in favor of the Agent and the Lenders and in the form of Exhibit "D-1
or "D-2" hereto, as applicable, together with all extensions, renewals,
amendments, substitutions and replacements thereof or thereto.
"Hazardous Substances" means any (i) hazardous, toxic or polluting
substances or wastes as defined by any Environmental Law or (ii) petroleum
products.
-8-
"Hedging Obligation" means, with respect to any Person, all liabilities
of such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"Historical EBITDDA" means $40,250,000.
"Indebtedness" as applied to any Person means, without duplication, all
liabilities of such Person for borrowed money (other than trade accounts payable
arising in the ordinary course of business), direct or contingent (excluding any
FASB 5 adjustments or accruals), whether evidenced by a bond, note, debenture,
book entry or otherwise, and all obligations and liabilities in the nature of a
capitalized lease obligation, deferred purchase price arrangement, title
retention device, letter of credit obligation, Hedging Obligation, reimbursement
agreement, or Guaranty, however evidenced.
"Interest Period" means, subject to the provisions of Subsection 2.2c,
any individual period of one (1), two (2), three (3) or six (6) months selected
by the Borrower commencing on the Borrowing Date, conversion date or renewal
date of a Euro-Rate Portion to which such period shall apply.
"Lease" means any lease, mineral lease, mining agreement or other
agreement to which the Borrower or any Subsidiary is a party and pursuant to
which one Person transfers or grants to another Person the right to extract,
mine or otherwise remove coal.
"Lender" has the meaning given in the preamble to this Agreement.
"Letter of Credit" has the meaning given it in Subsection 2.6a.
"Letter of Credit Borrowing" means an extension of credit resulting from
a drawing under any Letter of Credit which shall not have been reimbursed on the
date when made and shall not have been converted into a Revolving Credit Loan
under Subsection 2.6d(B).
"Letter of Credit Fee" has the meaning given it in Subsection 2.6b.
"Letters of Credit Outstanding" means at any time the sum of (i) the
aggregate undrawn face amount of outstanding Letters of Credit and (ii) the
aggregate amount of all unpaid and outstanding Reimbursement Obligations.
"Loan Account" means the loan account maintained by the Agent as more
fully described in Section 2.11.
"Loan Documents" means collectively this Agreement, the Revolving Credit
Notes, each Guaranty Agreement, each Letter of Credit and any application
relating thereto, and any other documents executed and delivered in connection
herewith.
"Loan Party" means the Borrower and each Guarantor.
-9-
"Margin Stock" is defined herein as defined in Regulation U.
"Material Adverse Change" means any set of circumstances or events which
(a) has or could reasonably be expected to have any material adverse effect upon
the validity or enforceability of this Agreement or any of the other Loan
Documents, (b) is or could reasonably be expected to be material and adverse to
the business, properties, assets, financial condition or results of operations
of the Parent, the Borrower and its Subsidiaries, taken as a whole, (c) impairs
materially or could reasonably be expected to impair materially the ability of
the Parent, the Borrower and its Subsidiaries taken as a whole to duly and
punctually pay their Indebtedness, or (d) impairs materially or could reasonably
be expected to impair materially the ability of the Agent or any of the Lenders
to enforce their legal remedies pursuant to this Agreement or any other Loan
Document.
"Material Contract" means any individual Lease or, collectively, group
of Leases, from the Borrower or any of its Subsidiaries to a single operator or
such operator's Affiliates which either (i) accounted for fifteen percent (15%)
or more of the gross revenues from royalties of the Borrower and its
Subsidiaries for the previous Fiscal Year, or (ii) is projected to account for
fifteen percent (15%) or more of the gross revenues from royalties of the
Borrower and its Subsidiaries for the current Fiscal Year, as shown on the
projections delivered to the Agent by the Borrower pursuant to Section 4.2(x)
below.
"MLP Agreement" means the First Amended and Restated Partnership
Agreement of the Parent dated __________________, 2002, as amended, restated, or
replaced from time to time to the extent permitted under the Loan Documents.
"Multiemployer Plan" means any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower or any ERISA Affiliate is then making or accruing an
obligation to make contributions or, within the preceding five Plan years, has
made or had an obligation to make such contributions.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Omnibus Agreement" means that certain Omnibus Agreement, dated ______,
2002, by and among the General Partner, the Parent, the Borrower, GP Natural
Resource Partners LLC, WPP Group, Arch Coal, Ark Land Company, and Xxxxxxxxx
Coal Management LLC, which provides, among other things, certain non-competition
provisions and indemnities for environmental and tax liabilities.
"Option" means any one or both of the Base Rate Option or the Euro-Rate
Option.
"Parent" means Natural Resource Partners L.P., a Delaware limited
partnership and its successors and permitted assigns.
"Participant" means any financial institution or other Person to which a
Lender sells a Participation in its Revolving Credit Loan in accordance with
Subsection 9.6c.
-10-
"Participation" means the sale by a Lender to any Participant of an
undivided interest in all or any part of such Lender's Revolving Credit Loan.
"Participation Advance" means, with respect to any Lender, such Lender's
payment in respect of its participation in a Letter of Credit Borrowing
according to its Ratable Share pursuant to Subsection 2.6d.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
Person.
"Permitted Acquisition" has the meaning given it in Section 5.4.
"Permitted Assets" means (i) Property substantially of the type owned
by, and commonly used in the lines of business engaged by, the general and
limited partners of the General Partner, the Parent, the Borrower and their
respective Subsidiaries on the date hereof, (ii) any property interests in Coal
and related rights and interests, (iii) creation and/or restoration of wetlands
and wetlands credits, and (iv) any and all Property, real or personal, held for
use or useful in connection with the operating, working or development of any of
such the foregoing and including any and all xxxxx, buildings, structures,
plants, pumps, field gathering systems, tanks and tank batteries, fixtures,
valves, fittings, machinery and parts, engines, boilers, meters, apparatus,
equipment, appliances, tools, implements, cables, wires, towers, casing, tubing
and rods, surface leases, rights-of-way, easements and servitudes.
"Permitted Encumbrance" means, as to any Person, any of the following:
(i) Encumbrances for taxes, assessments, governmental charges
or levies on any of such Person's properties, which taxes, assessments,
governmental charges or levies are at the time not due and payable or if
they, can thereafter be paid without penalty or are being contested in
good faith by appropriate proceedings diligently conducted and with
respect to which the affected Person has created adequate reserves;
(ii) Pledges or deposits to secure payment of workers'
compensation obligations, unemployment insurance, deposits or
indemnities to secure public or statutory obligations or for similar
purposes;
(iii) Encumbrances arising out of judgments or awards against
such Person not giving rise to an Event of Default, provided that such
judgment or award is paid within thirty (30) days of its entry unless
such judgment is subject to an appeal in which case adequate reserves
shall have been set aside for the payment thereof;
(iv) Mechanics', carriers', workmen's, repairmen's,
operator's, vendor's, warehousemen's, supplier's, worker's,
materialmen's, construction, securities intermediaries or other similar
Encumbrances arising by operation of law and incurred in the ordinary
course of such Person's business, so long as the obligation secured is
not overdue or, if overdue, is being contested in good faith by
appropriate actions or proceedings diligently conducted;
-11-
(v) Security interests in favor of lessors of personal
property, which property is the subject of a true lease between such
lessor and such Person:
(vi) Encumbrances securing Indebtedness existing on the
Closing Date without enlargement or extension of the Indebtedness
secured thereby or the assets encumbered thereby (any such Encumbrance
securing Indebtedness on the Closing Date is listed on Schedule 5.2);
(vii) Easements, rights-of-way, restrictions, leases or
subleases to others or other similar Encumbrances created in the
ordinary course of business which Encumbrances do not interfere in any
material respect with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(viii) Encumbrances arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or
similar rights and remedies and burdening only deposit accounts or other
funds maintained with a creditor depository institution, provided that
(a) no such deposit account is a dedicated cash collateral account or is
subject to restrictions against access by the depositor in excess of
those set forth by regulations promulgated by the Board of Governors of
the Federal Reserve System, and (b) no such deposit account is intended
by the Borrower or any of its Subsidiaries to provide collateral to the
depository institution;
(ix) Encumbrances (other than to secure the payment of
borrowed money or the deferred purchase price of property or services),
easements, restrictions, servitudes, permits, conditions, covenants,
exceptions or reservations in any property of the Borrower or any
Subsidiary, for the purpose of roads, pipelines, transmission lines,
transportation lines, distribution lines for the removal of gas, oil,
coal or other minerals or timber, and other like purposes, or for the
joint or common use of real estate, rights of way, facilities and
equipment and defects, irregularities, zoning restrictions and
deficiencies in title of any property that in the aggregate do not
materially impair the use of such property for the purposes of which
such property is held by the Borrower or any Subsidiary or materially
impair the value of such property subject thereto; and
(x) Encumbrances securing (i) the performance (not more than
60 days delinquent) of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) contingent obligations on
surety and appeal bonds, and (iii) other obligations of a like nature
(so long as the performance of such obligations is not more than 60 days
delinquent); in each case, incurred in the ordinary course of business,
provided all such Encumbrances in the aggregate does not or could not
(even if enforced) reasonably be expected to cause a Material Adverse
Change.
"Permitted Investments" means the following:
(i) Readily marketable direct obligations of the Government of
the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed
-12-
by the full faith and credit of the Government of the United States and
having a maturity not greater than twelve (12) months;
(ii) Commercial paper maturing in 180 days or less rated not
lower than A-1 by S&P or P-1 by Moody's on the date of acquisition; and
(iii) Dollar denominated demand deposits, time deposits or
certificates of deposit maturing within one year in domestic commercial
banks of recognized standing having capital and surplus in excess of
$250,000,000 and whose commercial paper or other short-term unsecured
debt obligations are rated A-1 or the equivalent or better by S&P or P-1
or the equivalent or better by Moody's on the date of acquisition.
"Person" means any individual, partnership, corporation, trust, joint
venture, banking association, unincorporated organization or any other entity or
enterprise or government or department or agency thereof.
"Plan" means at any time an employee pension benefit plan (not
including a Multiemployer Plan) which is covered by Title IV of ERISA or is
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained by the Borrower or any ERISA Affiliate
for employees of the Borrower or any ERISA Affiliate or (ii) has at any time
within the preceding five years been maintained by any entity which was at such
time an ERISA Affiliate for employees of any entity which was an ERISA
Affiliate.
"Portion" means either the Base Rate Portion, the Euro-Rate Portion, or
both of the foregoing, as the case may be.
"Potential Default" means an event which, with the passage of time or
the giving of notice or both, shall be an Event of Default.
"Prime Rate" means the interest rate per annum announced from time to
time by the PNC Bank, National Association as its prime rate, which rate may not
be the lowest rate of interest then being charged by the PNC Bank, National
Association to its commercial borrowers.
"Pro Forma Compliance Certificate" means a Pro Forma Compliance
Certificate substantially in the form of Exhibit "G".
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Purchasing Lender" has the meaning given it in Subsection 9.6a.
"Quarterly Distributions" means the distributions by the Parent of
Available Cash.
"Ratable Share" means the proportion that a Lender's Revolving Credit
Commitment bears to the aggregate Revolving Credit Commitments of the Lenders.
"Register" has the meaning given it in Subsection 9.6b.
-13-
"Regulation D" means Regulation D promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 204 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation T" means Regulation T promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 204 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation U" means Regulation U promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 221 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation X" means Regulation X promulgated by the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 224 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Reimbursement Obligation" has the meaning given it in Subsection
2.6d(B).
"Reportable Event" means any one or more event, defined in Section
4043(b) of ERISA and in 29 C.F.R. Part 2615, other than an event for which the
requirement for the thirty (30) day notice to the PBGC is waived.
"Required Lenders" means as of a particular date, the Lenders then
holding at least sixty-six and two-thirds percent (66-2/3%) of the sum of the
aggregate Revolving Credit Commitments (whether or not utilized) of all of the
Lenders than in effect and, after the termination of the Revolving Credit
Commitments, the Lenders then holding at least sixty-six and two-thirds percent
(66-2/3%) of the sum of the aggregate principal amount of the Revolving Credit
Loans and the Letters of Credit Outstanding, both at the particular time
outstanding; provided that in any event if one Lender holds at least the minimum
percentages set forth above at the time of any determination of Required
Lenders, the term "Required Lenders" shall be adjusted to include both the
minimum percentage requirement plus the vote of two Lenders if there is more
than one Lender.
"Restricted Payment" has the meaning given it in Section 5.1.
"Revolving Credit Commitment" means, as to each Lender, the obligation
of such Lender to make Revolving Credit Loans available to the Borrower pursuant
to Section 2.1 in an aggregate principal amount not to exceed the amount
captioned "Revolving Credit Commitment" set opposite such Lender's name on the
signature pages hereto and thereafter on Schedule 1 of any relevant Assignment
and Assumption Agreement (as the same may be reduced at any time or from time to
time pursuant to Section 2.10) and, as to all Lenders, the obligation of the
Lenders to make Revolving Credit Loans available to the Borrower in an aggregate
amount equal to the Revolving Credit Commitments of all of the Lenders.
"Revolving Credit Commitment Percentage" means, as to each Lender, the
percentage of the Revolving Credit Commitment set forth opposite such Lender's
name on the signature pages hereto as such amount may change from time to time
in accordance with the terms hereof.
-14-
"Revolving Credit Loan" means a Disbursement by a Lender to the
Borrower pursuant to Section 2.1.
"Revolving Credit Loan Request" has the meaning given it in Subsection
2.1d.
"Revolving Credit Notes" means any one or all of the several promissory
notes of the Borrower evidencing Indebtedness of the Borrower under the
Revolving Credit Commitments which notes are substantially in the form of
Exhibit "A" to the Agreement, together with all extensions, renewals,
amendments, modifications, substitutions and replacements thereto and thereof.
"S&P" means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx,
Inc. and its successors.
"Solvent" means, with respect to any Person on a particular date, that
on such date (i) the fair value of the property of such Person is greater than
the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (iv) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (v) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or proposes to engage.
In computing the amount of contingent liabilities at any time, it is intended
that such liabilities will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"SPC" has the meaning given it in Subsection 9.6d.
"Subsidiary" of any Person at any time means (i) any corporation or
trust of which more than 50% (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
Subsidiaries, (ii) any partnership of which such Person is a general partner or
of which more than 50% of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Person's Subsidiaries, or
(iii) any limited liability company of which such Person is a member or of which
more than 50% of the limited liability company interests is at the time directly
or indirectly owned by such Person or one or more of such Person's Subsidiaries.
Unless otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
-15-
"Termination Date" means the date which is five years after the Closing
Date.
"Termination Proceedings" means any action taken by the PBGC under
ERISA to terminate any plan.
"Transaction" means, collectively, (i) the formations, mergers,
contributions and other transfers of interests in certain corporations, limited
liability companies and/or partnerships, (ii) the conveyances of assets and
properties, (iii) the sale to the public of common units in the Parent, (iv) the
disposition of the proceeds of such sale, and (v) those certain other actions to
occur on or before the Closing Date as contemplated and described in the Form
S-1.
"Transfer Effective Date" has the meaning given it in each respective
Assignment and Assumption Agreement.
"Transferor Lender" has the meaning given it in Subsection 9.6a.
"WPP Group" means, collectively, Western Pocahontas Properties Limited
Partnership, a Delaware limited partnership, Great Northern Properties Limited
Partnership, a Delaware limited partnership, and New Gauley Coal Corporation, a
West Virginia corporation.
1.2 ACCOUNTING PRINCIPLES. Except as otherwise provided in this Agreement,
all computations and determinations as to accounting or financial matters and
all financial statements to be delivered pursuant to this Agreement shall be
made and prepared in accordance with GAAP (including principles of consolidation
where appropriate), and all accounting or financial terms shall have the
meanings ascribed to such terms by GAAP; provided, however, that all accounting
terms used in Section 5.3 (and all defined terms used in the definition of any
accounting term used in Section 5.3) shall have the meaning given to such terms
(and defined terms) under GAAP as in effect on the date hereof applied on a
basis consistent with those used in preparing the financial statements referred
to in Subsection 3.7a. In the event of any change after the date hereof in GAAP,
and if such change would result in the inability to determine compliance with
the financial covenants set forth in Section 5.3 based upon the Parent's
regularly prepared financial statements by reason of the preceding sentence,
then the parties hereto agree to endeavor, in good faith, to agree upon an
amendment to this Agreement that would adjust such financial covenants in a
manner that would not affect the substance thereof, but would allow compliance
therewith to be determined in accordance with the Parent's financial statements
at that time.
1.3 OTHER DEFINITIONAL CONVENTIONS AND RULES OF CONSTRUCTION. (i) The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Agreement shall, unless otherwise expressly specified, refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Article,
Section and Subsection references are to this Agreement unless otherwise
expressly specified.
(ii) All terms defined in this Agreement in the singular shall have
comparable meanings when used in plural, and vice versa, unless otherwise
specified.
-16-
(iii) The word "or" as used herein shall mean and connote nonexclusive
alternatives, unless expressly stated or the context clearly requires otherwise.
2. THE REVOLVING CREDIT LOANS
2.1 REVOLVING CREDIT LOANS.
2.1a REVOLVING CREDIT FACILITY . Subject to the terms and conditions hereof
and relying upon the representations and warranties herein set forth, each
Lender severally agrees to make Revolving Credit Loans to the Borrower at any
time from time to time on or after the date hereof to, but not including, the
Termination Date, provided that the aggregate principal amount of each Lender's
Revolving Credit Loans outstanding hereunder to the Borrower shall not exceed at
any one time an amount equal to such Lender's Revolving Credit Commitment
Percentage of the aggregate Revolving Credit Commitments minus such Lender's
Ratable Share of the Letters of Credit Outstanding. Within such limits of time
and amount and subject to the other provisions of this Agreement, the Borrower
may borrow, repay and reborrow pursuant to this Subsection 2.1a. The aggregate
amount of the Revolving Credit Commitments on the Closing Date is $100,000,000.
Each Revolving Credit Loan shall be designated at the time of borrowing by the
Borrower, based upon its intended use, as either a General Revolving Loan or a
Distribution Loan. General Revolving Credit Loans shall be available to the
Borrower solely for the purposes set forth in Section 4.1(i) (each such
Revolving Credit Loan, a "General Revolving Credit Loan"). Distribution Loans
shall be available for the purposes set forth in Section 4.1(ii) and shall not
exceed $12,000,000 in the aggregate at any one time outstanding (each such
Revolving Credit Loan, a "Distribution Loan"), subject to the requirements of
Section 4.12 hereof.
2.1b REVOLVING CREDIT COMMITMENT OF EACH LENDER. The obligations of each
Lender to make Revolving Credit Loans hereunder are several. The failure of any
Lender to make Revolving Credit Loans hereunder shall not affect the obligations
of the Borrower, or any other Lender, to any other party nor shall the Borrower,
or any other Lender, be liable for the failure of such Lender to make Revolving
Credit Loans hereunder. The Lenders shall have no obligation to make Revolving
Credit Loans hereunder on or after the Termination Date.
2.1c REVOLVING CREDIT NOTES. The obligation of the Borrower to repay, on or
before the Termination Date, the aggregate unpaid principal amount of all
Revolving Credit Loans shall be evidenced by the several Revolving Credit Notes,
each substantially in the form of Exhibit "A" hereto, drawn by the Borrower to
the order of a Lender in the maximum amount of such Lender's Revolving Credit
Commitment. The principal amount actually due and owing to a Lender at any time
with respect to its Revolving Credit Commitment shall be the then aggregate
unpaid principal amount of all Revolving Credit Loans made by such Lender as
shown on the Loan Account established and maintained by the Agent in accordance
with Section 2.11. Each Revolving Credit Note shall be dated the date hereof (or
such other date as provided in Section 9.6) and shall be delivered to the
Lenders on such date.
2.1d REVOLVING CREDIT LOAN REQUEST. Except as otherwise provided herein, the
Borrower may from time to time prior to the Termination Date request the Lenders
to make Revolving
-17-
Credit Loans to the Borrower by the delivery to the Agent, not later than 11:00
A.M. (eastern time) (i) three (3) Business Days prior to the proposed Borrowing
Date with respect to the making of Revolving Credit Loans to which the Euro-Rate
Option applies; and (ii) on the Business Day of the proposed Borrowing Date with
respect to the making of Revolving Credit Loans to which the Base Rate Option
applies of a duly completed request therefor substantially, in the form of
Exhibit "B" hereto or a request by telephone immediately confirmed in writing by
letter or facsimile in such form (each, a "Revolving Credit Loan Request"), it
being understood that the Agent may rely on the authority of any person making
such a telephonic request without the necessity of receipt of such written
confirmation. Each Revolving Credit Loan Request shall be irrevocable and shall
specify (i) the proposed Borrowing Date; (ii) whether the Revolving Credit Loan
is a General Revolving Loan or a Distribution Loan; (iii) the aggregate amount
of the proposed Revolving Credit Loans to be made on such Borrowing Date, which
amount, as to Base Rate Portions of Revolving Credit Loans, shall be in integral
multiples of $100,000 and not less than $300,000, and, as to Euro-Rate Portions
of Revolving Credit Loans, shall be in integral multiples of $1,000,000 and not
less than $3,000,000; (iv) whether the Euro-Rate Option or the Base Rate Option
shall apply to the proposed Revolving Credit Loans to be made on such Borrowing
Date; and (v) in the case of Revolving Credit Loans to which the Euro-Rate
Option applies, an appropriate Interest Period for each Euro-Rate Portion of the
Revolving Credit Loans to be made on such Borrowing Date.
2.1e MAKING REVOLVING CREDIT LOANS. The Agent shall, promptly after receipt
by it of a Revolving Credit Loan Request pursuant to Subsection 2.1d (but not
later than noon (eastern time) on the Borrowing Date for same day funding and
2:00 P.M. (eastern time) on the second Business Day preceding any Borrowing Date
for which any Portion of the Revolving Credit Loans to be made on such Borrowing
Date bears interest at the Euro-Rate Option), notify the Lenders of its receipt
of such Revolving Credit Loan Request specifying: (i) the proposed Borrowing
Date and the time and method of disbursement of such Revolving Credit Loan; (ii)
the amount and type of such Revolving Credit Loan and the applicable Euro-Rate
Portions and Interest Periods (if any); and (iii) the apportionment among the
Lenders of the Revolving Credit Loans as determined by the Agent in accordance
with Subsection 2.1a hereof. Each Lender shall remit the principal amount of
each Revolving Credit Loan to the Agent such that the Agent is able to, and the
Agent shall, to the extent the Lenders have made funds available to it for such
purpose, fund such Revolving Credit Loan to the Borrower in Dollars and
immediately available funds at the principal office of the Agent in Pittsburgh,
Pennsylvania prior to 2:00 P.M. (eastern time) on the Borrowing Date, provided
that if any Lender fails to remit such funds to the Agent in a timely manner, or
any Lender fails to advise the Agent of its intention not to fund, then the
Agent may elect in its sole discretion to fund with its own funds the Revolving
Credit Loan of such Lender on the Borrowing Date, subject to the provisions of
Section 8.3 below.
2.2 INTEREST RATES, INTEREST PAYMENT AND CERTAIN PROVISIONS RELATING TO
INTEREST AND FEES.
2.2a PAYMENTS OF INTEREST. The Borrower shall pay interest on the principal
amount of the Revolving Credit Loans from time to time outstanding hereunder,
from the date thereof until payment in full, at the rates of interest determined
pursuant to this Section 2.2. The Borrower shall pay accrued interest on the
unpaid principal balance of the Revolving Credit Loans in
-18-
arrears: (i) with respect to each Base Rate Portion, at the Base Rate on the
last day of each Fiscal Quarter during the term thereof; (ii) with respect to
each Euro-Rate Portion, at the Adjusted Euro-Rate on the last day of each
Interest Period as provided for in Subsection 2.3c (provided, however, if the
Interest Period chosen for a Euro-Rate Portion exceeds three (3) months,
interest on that Euro-Rate Portion shall be due and payable on the day which is
(A) three months after the first day of such Interest Period and (B) the last
day of such Interest Period); and (iii) with respect to all such Portions, at
the applicable interest rate (A) when due, at maturity, whether by acceleration
or otherwise, and (B) after maturity, on demand until paid in full.
2.2b INTEREST RATE OPTIONS. The unpaid principal amount of the Revolving
Credit Loans shall bear interest, for each day until due, at one or more rates
of interest selected by the Borrower from among the Options set forth below; it
being understood that, subject to the provisions of this Agreement, the Borrower
may select different Options to apply simultaneously to different Portions of
the Revolving Credit Loans and may select different Interest Periods to apply
simultaneously to different Portions of the Euro-Rate Portions of the Revolving
Credit Loans.
(i) Base Rate Option: A rate of interest per annum (computed
upon the basis of a year of 365 or 366 days, as the case may be, and the
actual number of days elapsed) equal to the Base Rate. The rate of
interest per annum under the Base Rate Option shall be adjusted
automatically, from time to time, upon each change in the Base Rate.
(ii) Euro-Rate Option: A rate of interest per annum (computed on
the basis of a year of 360 days and the actual number of days elapsed)
equal to the sum of (A) the Euro-Rate plus (B) the Applicable Euro-Rate
Margin from time to time in effect (the "Adjusted Euro-Rate"). The
Adjusted Euro-Rate for each Euro-Rate Portion then outstanding shall be
adjusted automatically, from time to time, effective upon each change in
the Applicable Euro-Rate Margin resulting from an increase or decrease
in the Parent's ratio of Consolidated Total Indebtedness to Consolidated
EBITDDA.
2.2c INTEREST PERIODS; LIMITATIONS ON ELECTIONS. At any time when the
Borrower shall select, convert to or renew at the Euro-Rate Option with respect
to all or any Portion of the outstanding Revolving Credit Loans, it shall fix
one or more Interest Periods during which such Option(s) shall apply. All of the
foregoing, however, is subject to the following:
(i) any Interest Period which would otherwise end on a day which
is not a Business Day shall be extended to the next Business Day unless
such Business Day falls in the succeeding calendar month in which case
such Interest Period shall end on the next preceding Business Day; and
(ii) any Interest Period which begins on the last day of a
calendar month or on a day for which there is no numerically
corresponding day in the subsequent calendar month during which such
Interest Period is to end shall end on the last Business Day of such
subsequent month.
-19-
In addition, elections by the Borrower of the Euro-Rate Option
shall be subject to the following further limitations:
(i) The Euro-Rate Portions for each Interest Period shall be in
integral multiples of $1,000,000 and not less than $3,000,000;
(ii) (x) If an Interest Period is elected and such Interest
Period would end after the Termination Date, such Interest Period shall
end on the Termination Date; and
(iii) At no time may there be more than six (6) Interest Periods
in effect relating to Revolving Credit Loans; provided, however if a
Base Rate Portion is outstanding there shall be not more than five (5)
Interest Periods in effect relating to Revolving Credit Loans.
2.2d ELECTION, CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS. Elections of
or conversions to the Base Rate Option shall continue in effect until converted
to the Euro-Rate Option as hereinafter provided. Elections of, conversions to or
renewals of the Euro-Rate Option shall expire as to each Euro-Rate Portion at
the expiration of the applicable Interest Period.
At any time, with respect to any Base Rate Portion, or at the
expiration of the applicable Interest Period, with respect to any Euro-Rate
Portion, the Borrower (subject to Subsection 2.2c) may cause all or any part of
the principal amount of such Portion to be converted to and/or (in the case of a
Euro-Rate Portion) to be renewed under the Euro-Rate Option by notice to each of
the Lenders as hereinafter provided. Such notice (i) shall be irrevocable; (ii)
shall be given not later than 11:00 A.M. (eastern time) in the case of a
conversion to or renewal of, either in whole or in part, the Euro-Rate Option on
the third Business Day prior to the proposed effective date for the conversion
or renewal; and (iii) shall set forth:
(A) the effective date of such conversion or renewal, which
shall be a Business Day;
(B) the new Interest Period(s) selected; and
(C) with respect to each such Interest Period, the aggregate
principal amount of the corresponding Euro-Rate Portion.
At the expiration of each Interest Period, any part (including the
whole) of the principal amount of the corresponding Euro-Rate Portion as to
which no notice of conversion or renewal has been received as provided above,
shall automatically be converted to the Base Rate Option.
2.2e NOTIFICATION OF ELECTION OF AN INTEREST RATE OPTION. Any communication
under Subsection 2.1d, 2.2b or 2.2d may be oral or written and if oral, it shall
be followed immediately by written confirmation of such Option election executed
by an Authorized Officer.
2.2f INTEREST AFTER DEFAULT. (A) Any amount not paid when due (including
interest), whether by acceleration or otherwise and whether or not judgment has
been entered against the Borrower
-20-
thereon, shall bear interest at a rate per annum which shall be two hundred
(200) basis points (2%) per annum above the rate otherwise in effect with
respect to such amount.
(B) Upon the occurrence of an Event of Default, and during the
continuance of such Event of Default, upon notice from the Agent (acting
upon the instructions of the Required Lenders) to the Borrower: (i) all
Base Rate Portions shall bear interest at a rate per annum which shall
be two hundred (200) basis points (2%) per annum above the rate
otherwise in effect under the Base Rate Option, such interest rate to
change automatically from time to time, effective as of the effective
date of each change in the Base Rate; and (ii) all Euro-Rate Portions
shall bear interest (i) until the end of the then current Interest
Period, at a rate per annum which shall be two hundred (200) basis
points (2%) per annum above the rate otherwise in effect under the
Euro-Rate Option, and (ii) at the end of the then current Interest
Period, and thereafter at the sum of (A) the Base Rate plus (B) two
hundred (200) basis points (2%) per annum.
2.3 YIELD-PROTECTION, CAPITAL ADEQUACY AND MISCELLANEOUS PROVISIONS RELATING
TO EURO-RATE.
2.3a YIELD PROTECTION. Notwithstanding other provisions of this Section 2.3:
(a) With respect to any Lender, if, after the date
hereof, any adoption of or any change in or in the
interpretation of any Governmental Rule, shall:
(i) subject such Lender to any tax, levy, impost
charge, fee, duty, deduction or withholding of any kind with
respect to payments of principal or interest or other amounts
due hereunder (other than any tax imposed or based upon the
income, gross receipts or capital or franchise taxes of such
Lender and payable to any Governmental Authority in the United
States of America or any state thereof and other than taxes due
by a failure of such Lender to comply with Section 9.4); or
(ii) change the basis of taxation of such Lender
with respect to payments of principal or interest or other
amounts due hereunder (other than any change which affects, and
only to the extent that it affects, the taxation by the United
States or any state thereof of the total net income of such
Lender); or
(iii) impose, modify or deem applicable any
reserve, special deposit or similar requirements against assets
held by such Lender applicable to its Revolving Credit
Commitment or Revolving Credit Loans made hereunder (other than
such requirements which are included in the determination of the
applicable rate of interest hereunder); or
(iv) impose upon such Lender any other
obligation or condition with respect to this Agreement.
and the result of any of the foregoing is to increase the cost to the affected
Lender, reduce the income receivable by the affected Lender, reduce the rate of
return on the affected Lender's capital, or impose any expenses upon the
affected Lender, all with respect to any of the
-21-
Revolving Credit Loans (or any portion thereof) by an amount which the affected
Lender reasonably deems material, and if the affected Lender is then demanding
similar compensation for such occurrences from other borrowers who are similarly
situated and who have a similar relationship with the affected Lender and from
which the affected Lender has the right to demand such compensation, then and in
any such case:
a. the affected Lender shall promptly notify the
Borrower of the happening of such event;
b. the Borrower shall pay to the affected
Lender, within two (2) Business Days of demand, such amount as will compensate
the affected Lender for such reduction in its rate of return; and
c. the Borrower may pay the affected portion of
the affected Lender's Revolving Credit Loans in full without the payment of any
additional amount, including prepayment penalties, other than amounts payable on
account of the affected Lender's out-of-pocket losses (including funding loss,
if any, as provided in Section 2.9) which are not otherwise provided for in
subparagraph (2) immediately above.
Notwithstanding the foregoing, if any Lender demands compensation from the
Borrower under this Section 2.3a 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).
(b) A certificate as to the increased cost or reduced amount as
a result of any event mentioned in this Subsection 2.3a shall be
promptly submitted by the affected Lender to the Borrower in accordance
with the provisions hereof. Such certificate shall be prima facie
evidence as to the amount of such increased cost or reduced amount.
2.3b CAPITAL ADEQUACY. If, after the date hereof, (i) any adoption of or any
change in or in the interpretation of any Governmental Rule, or (ii) compliance
with any Governmental Rule of any Governmental Authority exercising control over
banks or financial institutions generally or any court of competent
jurisdiction, requires that the Revolving Credit Commitment (including, without
limitation, obligations in respect of any Revolving Credit Loans) hereunder be
treated as an asset or otherwise be included for purposes of calculating the
appropriate amount of capital to be maintained by any Lender or any corporation
controlling any Lender (a "Capital Adequacy Event") the result of which is to
reduce the rate of return on a Lender's capital as a consequence of its
Revolving Credit Commitment to a level below that which the affected Lender
could have achieved but for such Capital Adequacy Event, taking into
consideration the Lender's policies with respect to capital adequacy, by an
amount which the affected Lender reasonably deems to be material, the affected
Lender shall promptly deliver to the Borrower a statement of the amount
necessary to compensate the affected Lender or the reduction in the rate of
return on its capital
-22-
attributable to its Revolving Credit Commitment (the "Capital Compensation
Amount"). The affected Lender shall determine the Capital Compensation Amount in
good faith, using reasonable attribution and averaging methods. Each affected
Lender shall from time to time notify the Borrower of the amount so determined.
Each such notification shall be prima facie evidence of the amount of the
Capital Compensation Amount set forth therein, and such Capital Compensation
Amount shall be due and payable by the Borrower to the affected Lender thirty
(30) days after such notice is given. As soon as practicable after any Capital
Adequacy Event, the affected Lender shall submit to the Borrower estimates of
the Capital Compensation Amounts that would be payable as a function of the
affected Lender's Revolving Credit Commitment hereunder. Notwithstanding the
foregoing, if any Lender demands compensation from the Borrower under this
Section 2.3b 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).
2.3c EURO-RATE UNASCERTAINABLE. If, on any date on which the Adjusted Euro-
Rate would otherwise be set, the Agent reasonably shall have determined (which
determination shall be final and conclusive) that by reason of circumstances
affecting the interbank Eurodollar market, adequate and reasonable means do not
exist for ascertaining the Euro-Rate, the Agent shall give prompt notice of such
determination to the Borrower and the Lenders and, until the Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such
determination no longer exist, the right of the Borrower to borrow under,
convert to or renew the Euro-Rate Option shall be suspended with respect to any
period for which the Euro-Rate is not ascertainable, and with respect to any
such period, any notice of borrowing under, conversion to or renewal of the
Euro-Rate Option which was to become effective during the period of such
suspension shall be treated as a request to borrow under, convert to or renew at
the Base Rate Option with respect to the principal amount therein specified.
2.3d ILLEGALITY. If a Lender shall determine in good faith (which
determination shall be final and conclusive) that compliance by such Lender with
any applicable law, treaty or other Governmental Rule (whether or not having the
force of law), or the interpretation or application thereof by my Governmental
Authority, has made it unlawful for such Lender to make or maintain the
Revolving Credit Loans under the Euro-Rate Option (including but not limited to
acquiring Eurodollar liabilities to fund such Revolving Credit Loans), such
Lender shall give notice of such determination to the Borrower and the other
Lenders. Notwithstanding any provision of this Agreement to the contrary, unless
and until the affected Lender shall have given notice to the Borrower and the
other Lenders that the circumstances giving rise to such determination no longer
apply:
(i) with respect to any Interest Periods thereafter commencing,
interest on the Revolving Credit Loans bearing interest at the Adjusted
Euro-Rate (whichever one or more have been determined by the affected
Lender to be unlawful) shall, unless the Borrower shall have selected a
different Option which is then available, be computed and payable under
the Base Rate Option; and
-23-
(ii) on such date, if any, as shall be required by law, any
Revolving Credit Loans bearing interest at the Adjusted Euro-Rate then
outstanding shall be automatically converted to the Base Rate Option,
and the Borrower shall pay to the affected Lender the accrued and unpaid
interest on such Revolving Credit Loans to (but not including) the date
of such conversion at the applicable interest rate or rates in effect
for such Revolving Credit Loans prior to such conversion.
2.4 FEES.
2.4a COMMITMENT FEE. The Borrower agrees to pay to the Agent on behalf of the
Lenders, on a pro rata basis, beginning on September 30, 2002, and continuing
quarterly in arrears thereafter on the last day of each December, March, June
and September during the term hereof to and including the Termination Date, a
Commitment Fee calculated at a rate per annum equal to the Commitment Fee Rate
on the average daily unused portion of the Revolving Credit Commitment for the
quarter then ending; provided, however, the first payment under this Subsection
2.4a shall be only for the actual number of days elapsed between the Closing
Date and September 30, 2002, and the last payment under this Subsection 2.4a
shall be only for the actual number of days elapsed between the last quarterly
payment date and the Termination Date.
2.4b AGENT'S FEE. The Borrower agrees to pay to the Agent for its own account
the non-refundable Agent's Fees for the Agent's services hereunder under the
terms of that certain letter (the "Agent's Letter") between the Borrower and the
Agent dated as of the Closing Date.
2.4c LETTER OF CREDIT FEE AND FRONTING FEE. The Borrower shall pay to the
Agent, from time to time, for the benefit of the Lenders, the Letter of Credit
Fee as set forth in Subsection 2.6b. The Borrower shall pay to the Agent, from
time to time, for its sole account, the Fronting Fee as set forth in Subsection
2.6b.
2.5 CALCULATION OF INTEREST AND CERTAIN FEES. The calculation of the amount
of interest due and owing to each Lender shall be made by the Agent and shall be
evidenced by the Agent posting the amount of interest due under such Lender's
Revolving Credit Loans to the Loan Account established pursuant to Section 2.11.
The Commitment Fee shall be calculated on the basis of a 360 day year and actual
number of days elapsed. The calculation of the amount of the Commitment Fee due
and owing to each Lender shall be made by the Agent and shall be evidenced by
posting such amount due under the Loan Account established pursuant to Section
2.11.
2.6 LETTER OF CREDIT SUB-FACILITY.
2.6a ISSUANCE OF LETTERS OF CREDIT. The Borrower may request the issuance of
a letter of credit (each a "Letter of Credit") by delivering to the Agent a
completed application and agreement for letters of credit in such form as the
Agent may specify from time to time by no later than 10:00 A.M., Pittsburgh,
Pennsylvania time, at least five (5) business Days, or such shorter period as
may be agreed to by the Agent, in advance of the proposed date of issuance. Each
Letter of Credit shall be denominated in Dollars. Subject to the terms and
conditions
-24-
hereof and in reliance on the agreements of the other Lenders set forth in this
Section 2.6, the Agent will issue a Letter of Credit provided that each Letter
of Credit shall (A) have a maximum maturity of one year from the date of
issuance, and (B) in no event expire later than ten (10) Business Days prior to
the Termination Date and provided that in no event shall the aggregate amount of
Letters of Credit Outstanding exceed, at any one time, $2,000,000. The amount of
Letters of Credit Outstanding at any time shall reduce the maximum amount
otherwise available for Revolving Credit Loans under the Revolving Credit
Commitments. No Letters of Credit may be issued hereunder to the extent that
such issuance would cause the sum of (i) the Letters of Credit Outstanding plus
(ii) the aggregate amount of Revolving Credit Loans outstanding to exceed the
aggregate amount of Revolving Credit Commitments then in effect.
2.6b LETTER OF CREDIT FEES. The Borrower shall pay to the Agent for the
ratable account of the Lenders a fee (the "Letter of Credit Fee") equal to the
Applicable Euro-Rate Margin for Revolving Credit Loans (computed on the basis of
a year of 360 days and actual days elapsed), which fees shall be computed on the
daily average amount of the Letters of Credit Outstanding and shall be payable
quarterly in arrears commencing with the last day of each September, December,
March and June following issuance of each Letter of Credit. The Borrower shall
also pay to the Agent for the Agent's sole account (i) one-eighth of one percent
(.125%) per annum of the amount of any Letters of Credit Outstanding (the
"Fronting Fee") quarterly in arrears, and (ii) as incurred, the Agent's then
current customary fees and administrative expenses payable with respect to the
Letters of Credit as the Agent may generally charge or incur from time to time
in connection with the issuance, maintenance, modification (if any), assignment
or transfer (if any), negotiation, and administration of Letters of Credit.
2.6c LETTER OF CREDIT FEES UPON DEFAULT. (A) Upon the occurrence of an Event
of Default, and during the continuance of such Event of Default, upon notice
from the Agent (acting upon the instructions of the Required Lenders) to the
Borrower, or (B) upon the acceleration of the Bank Indebtedness for any reason
hereunder, the Letter of Credit Fee shall be automatically increased by two
percent (2%) in excess of the applicable Letter of Credit Fee then in effect.
2.6d DISBURSEMENTS, REIMBURSEMENT.
(i) Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Agent a participation in such Letter of Credit and each
drawing thereunder in an amount equal to such Lender's Ratable Share of the
maximum amount available to be drawn under such Letter of Credit and the amount
of such drawing, respectively.
(ii) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Agent will promptly notify
the Borrower of the amount of such drawing and the date such payment shall be
made. The Borrower shall reimburse (such obligation to reimburse the Agent shall
sometimes be referred to as a "Reimbursement Obligation") the Agent for any
amount paid by the Agent under any Letter of Credit (each such date of a payment
by the Agent under a Letter of Credit, a "Drawing Date") in an amount equal to
the amount so paid by the Agent. Such Reimbursement Obligation shall be paid
prior to 12:00 noon, Pittsburgh, Pennsylvania time, on the Drawing Date. In the
event the
-25-
Borrower fails to reimburse the Agent for the full amount of any drawing under
any Letter of Credit by 12:00 noon, Pittsburgh, Pennsylvania time, on the
Drawing Date, the Agent will promptly notify each Lender thereof, and the
Borrower shall be deemed to have requested that Revolving Credit Loans be made
by the Lenders under the Base Rate Option to be disbursed on the Drawing Date
under such Letter of Credit, subject to the amount of the unutilized portion of
the Revolving Credit Commitments (without giving effect to outstanding Letters
of Credit) and subject to the conditions set forth in Section 6.1 other than any
notice requirements. Any notice given by the Agent pursuant to this Subsection
2.6d(B) may be oral if immediately confirmed in writing; provided that the lack
of such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(iii) Each Lender shall upon any notice pursuant to Subsection
2.6d(B) make available to the Agent an amount in immediately available funds
equal to its Ratable Share of the amount of the drawing, whereupon the
participating Lenders shall (subject to Subsection 2.6d(D)) each be deemed to
have made a Revolving Credit Loan under the Base Rate Option to the Borrower in
that amount. If any Lender so notified fails to make available to the Agent for
the account of the Agent the amount of such Lender's Ratable Share of such
amount by no later than 2:00 P.M., Pittsburgh, Pennsylvania time on the Drawing
Date, then interest shall accrue on such Lender's obligation to make such
payment, from the Drawing Date to the date on which such Lender makes such
payment (i) at a rate per annum equal to the Federal Funds Effective Rate during
the first three days following the Drawing Date and (ii) at a rate per annum
equal to the rate applicable to Revolving Credit Loans under the Base Rate
Option on and after the fourth day following the Drawing Date. The Agent will
promptly give notice of the occurrence of the Drawing Date to each Lender, but
failure of the Agent to give any such notice on the Drawing Date or in
sufficient time to enable any Lender to effect such payment on such date shall
not relieve such Lender from its obligation under this Subsection 2.6d(C).
(iv) With respect to any unreimbursed drawing that is not
converted into Revolving Credit Loans under the Base Rate Option to the Borrower
in whole or in part as contemplated by Subsection 2.6d(B), because of the
Borrower's failure to satisfy the conditions set forth in Section 6.1 other than
any notice requirements or for any other reason, the Borrower shall be deemed to
have incurred from the Agent a Letter of Credit Borrowing in the amount of such
drawing. Such Letter of Credit Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the rate per annum
applicable to the Revolving Credit Loans under the Base Rate Option as adjusted
to reflect the default rate provisions set forth in Subsection 2.2f. Each
Lender's payment to the Agent pursuant to Subsection 2.6d(C) shall be deemed to
be a payment in respect of its participation in such Letter of Credit Borrowing
and shall constitute a Participation Advance from such Lender in satisfaction of
its participation obligation under this Subsection 2.6d. The provisions of this
Subsection (D) are solely for the benefit of the Agent as issuer of the Letters
of Credit, and shall not be deemed to excuse, waive or consent to an Event of
Default under Section 7.1 arising from an unreimbursed drawing giving rise to a
Participation Advance.
-26-
2.6e REPAYMENT OF PARTICIPATION ADVANCES.
(A) Upon (and only upon) receipt by the Agent for its account
of immediately available funds from the Borrower (i) in reimbursement of any
payment made by the Agent under the Letter of Credit with respect to which any
Lender has made a Participation Advance to the Agent, or (ii) in payment of
interest on such a payment made by the Agent under such a Letter of Credit, the
Agent will pay to each Lender in the same funds as those received by the Agent,
the amount of such Lender's Ratable Share of such funds, except the Agent shall
retain the amount of the Ratable Share of such funds of any Lender that did not
make a Participation Advance in respect of such payment by Agent.
(B) If the Agent is required at any time to return to the
Borrower, or to a trustee, receiver, liquidator, custodian, or any official in
any proceeding described in Section 7.3. any portion of the payments made by the
Borrower to the Agent pursuant to Subsection 2.6d(B) in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon, each Lender
shall, on demand of the Agent, forthwith return to the Agent the amount of its
Ratable Share of any amounts so returned by the Agent plus interest thereon from
the date such demand is made to the date such amounts are returned by such
Lender to the Agent, at a rate per annum equal to the Federal Funds Effective
Rate in effect from time to time.
2.6f DOCUMENTATION. The Borrower agrees to be bound by the terms of the
Agent's application and agreement for letters of credit and the Agent's written
regulations and customary practices relating to letters of credit, though such
interpretation may be different from the Borrower's own. In the event of a
conflict between such application or agreement and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct, the Agent shall not be liable for any
error and/or mistakes, whether of omission or commission, in following the
Borrower's instructions or those contained in the Letters of Credit or any
modifications, amendments or supplements thereto.
2.6g DETERMINATIONS TO HONOR DRAWING REQUESTS. In determining whether to
honor any request for drawing under any Letter of Credit by the beneficiary
thereof, the Agent shall be responsible only to determine that the documents and
certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such
Letter of Credit.
2.6h NATURE OF PARTICIPATION AND REIMBURSEMENT OBLIGATIONS. Each Lender's
obligation in accordance with this Agreement to make the Revolving Credit Loans
or Participation Advances, as contemplated by Subsection 2.6d, as a result of a
drawing under a Letter of Credit, and the obligation of the Borrower to
reimburse the Agent upon a draw under a Letter of Credit, shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Section 2.6 under all circumstances, including the
following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Agent, the Borrower or any
other Person for any reason whatsoever;
-27-
(ii) the failure of the Borrower or any other Person to comply,
in connection with a Letter of Credit Borrowing, with the conditions set
forth in Sections 2.1, 2.2 or 6.1 or as otherwise set forth in this
Agreement for the making of a Revolving Credit Loan, it being
acknowledged that such conditions are not required for the making of a
Letter of Credit Borrowing and the obligation of the Lenders to make
Participation Advances under Subsection 2.6d; provided, however the
aggregate amount thereof shall in no event exceed the unutilized
Revolving Credit Commitments;
(iii) any lack of validity or enforceability of any Letter of
Credit;
(iv) the existence of any claim, set-off, defense or other right
which the Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), the Agent or any Lender or
any other Person or, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including
any, underlying transaction between the Borrower and the beneficiary for
which any Letter of Credit was procured);
(v) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect even if the Agent has been notified thereof;
(vi) payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit;
(vii) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
the Borrower;
(viii) any breach of this Agreement or any other Loan Document
by any party thereto;
(ix) the occurrence or continuance of any proceeding described
in Section 7.3 with respect to the Borrower;
(x) the fact that an Event of Default shall have occurred and be
continuing;
(xi) the fact that the Termination Date shall have passed or
this Agreement or the Revolving Credit Commitments hereunder shall have
been terminated; and
(xii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
2.6i INDEMNITY. In addition to amounts payable as provided in Section 9.16,
the Borrower hereby, agrees to protect, indemnify, pay and save harmless the
Agent from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including
-28-
reasonable fees, expenses and disbursements of counsel and allocated costs of
internal counsel) which the Agent may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any, Letter of Credit, other than as
a result of (A) gross negligence or willful misconduct of the Agent as
determined by a final judgment of a court of competent jurisdiction or (B)
subject to the following clause (ii), the wrongful dishonor by the Agent of a
proper demand for payment made under any Letter of Credit, or (ii) the failure
of the Agent to honor a drawing under any such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto Governmental Authority (all such acts or omissions herein
called "Governmental Acts").
2.6j LIABILITY FOR ACTS AND OMISSIONS. As between the Borrower and the Agent,
the Borrower assumes all risks of the acts and omission of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Agent shall not be
responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for an issuance of any such Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) the
failure of the beneficiary of any such Letter of Credit, or any other party, to
which such Letter of Credit may be transferred, to comply fully with any
conditions required in order to draw upon such Letter of Credit so long as the
documents presented in connection with such draw appear on their face to
substantially comply with the terms and conditions of the relevant Letter of
Credit; (iv) any claim of the Borrower against any beneficiary of any such
Letter of Credit, or any transferee of such Letter of Credit, or any dispute
between or among the Borrower and any beneficiary of any Letter of Credit or any
such transferee; (v) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (vi) errors in interpretation of technical
terms; (vii) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (viii) the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(ix) any consequences arising from causes beyond the control of the Agent,
including any Governmental Acts, and none of the above shall affect or impair,
or prevent the vesting of, any of the Agent's rights or powers hereunder.
Nothing in the preceding sentence shall relieve the Agent from liability for the
Agent's gross negligence or willful misconduct in connection with actions or
omissions described in such clauses (i) through (ix) of such sentence.
2.6k UNIFORM CUSTOMS. Except and to the extent inconsistent with the specific
provisions hereof, this Agreement, each Letter of Credit hereunder and all
transactions in connection therewith shall be interpreted, construed and
enforced according to: (i) the "Uniform Customs and Practice for Documentary
Credits" (1993 Revision), International Chamber of Commerce Publication No. 500
or the "International Standby Practices 1998," International Chamber of Commerce
Publication No. 590, as applicable, and in each case subsequent revisions
thereof, which shall supersede inconsistent provisions of applicable law to the
extent not prohibited by applicable law and (ii) the laws of the jurisdiction in
which the office of the Agent is located for
-29-
purposes of issuing Letters of Credit hereunder including, without limitation,
the Uniform Commercial Code, excluding conflict of laws rules.
2.7 SUBSTITUTION OR REPLACEMENT OF A LENDER. The Borrower shall have the
right (provided that at such time, no Event of Default and no Potential Default
has occurred and is continuing), in its sole discretion, to either:
(i) repay, (A) at any time if either no Revolving Credit Loans
are outstanding or if Revolving Credit Loans bearing interest under the
Base Rate Option are the only Revolving Credit Loans outstanding, (B)
subject to Section 2.9, upon three (3) days prior notice if the
Revolving Credit Loans outstanding include Revolving Credit Loans
bearing interest under the Euro-Rate Option, the outstanding Revolving
Credit Loans of any Lender in whole, together with interest thereon and
any other fees, expenses or other sums payable to such Lender pursuant
to the terms of this Agreement, all whether then due and payable or
accrued and unpaid, and to terminate the Revolving Credit Commitment of
such Lender; or
(ii) seek a substitute lending institution or institutions
(which may be one or more of the other Lenders) to purchase the
Revolving Credit Note and assume the Revolving Credit Loans, the
Revolving Credit Commitment and the other obligations of such Lender
under this Agreement.
if any of the following conditions occur with respect to such Lender:
(i) such Lender shall have delivered a notice or certificate
pursuant to Subsection 2.3a or 2.3b;
(ii) the obligation of such Lender to make or renew Revolving
Credit Loans which bear or are to bear interest under the Euro-Rate
Option has been suspended pursuant to Subsection 2.3d; or
(iii) such Lender shall have defaulted under Section 9.4 or
failed to fund a Disbursement;
provided, any proposed substitute lending institution, which is not a Lender
prior to the Borrower's selection thereof, must be acceptable to the Agent,
whose consent shall not be unreasonably withheld or delayed, and provided,
further that all of the provisions of Section 9.6 (with respect to any Lender)
and Section 8.11 (if the affected Lender is the Agent) must be complied with.
2.8 LOAN REPAYMENT AND PREPAYMENT.
2.8a VOLUNTARY PREPAYMENTS. Each repayment of the Revolving Credit Loans
shall be in the minimum amount of $1,000,000, in the aggregate, or, in excess
thereof, in an integral multiple of $100,000 thereof, or such lesser amount as
is actually outstanding thereunder. The Borrower, upon (i) oral or written
notice to Agent by 11:00 A.M. (eastern time) on the day of the proposed
repayment, in the case of Revolving Credit Loans bearing interest at the Base
Rate or (ii) three
-30-
(3) Business Days' prior oral or written notice to the Agent, in the case of
Revolving Credit Loans bearing interest at the Adjusted Euro-Rate, followed
immediately thereafter by the Borrower's written confirmation to the Agent of
any oral notice, may repay the outstanding amount of the Revolving Credit Loans
in whole or in part with accrued interest, fees and other amounts then due and
payable on the amount repaid to the date of such repayment, subject to the
payment of any additional amounts under Section 2.9 below. The Borrower may
prepay any Portion of the Revolving Credit Loans without premium or penalty
subject to Section 2.9. The Borrower shall notify the Agent whether any such
repayment applies to General Revolving Loans or Distribution Loans. If no such
notice is given, such repayment shall be deemed to be first a repayment of
Distribution Loans and second a repayment of General Revolving Loans.
Subject to Section 5.7, any repayment of the Revolving Credit Loans
shall increase, by the amount of that repayment, the unborrowed balance of the
Revolving Credit Commitments; it being contemplated that the Borrower may repay
and reborrow from time-to-time under the Revolving Credit Commitments until the
Termination Date.
2.8b SCHEDULED REPAYMENT. All Revolving Credit Loans outstanding on the
Termination Date shall become due and payable in full on such date.
2.9 ADDITIONAL PAYMENTS BY THE BORROWER. If (i) the Borrower shall fail to
make any payment due hereunder on the due date thereof, (ii) the Borrower shall
make a payment, prepayment or conversion of any Euro-Rate Portion of the
Revolving Credit Loans on a day other than the last day of the applicable
Interest Period, or (iii) the Borrower shall fail on the date specified therefor
to consummate any borrowing, conversion or renewal after giving a request for a
Disbursement or notice of conversion or renewal, and, as a result of any such
action or inaction, a Lender reasonably incurs any losses and expenses which it
would not have incurred but for such action or inaction, the Borrower shall pay
such additional amounts as will compensate the affected Lender for such losses
and expenses, including the cost of reemployment of any funds prepaid at rates
lower than the cost to the affected Lender of such funds. Such losses and
expenses, which the affected Lender shall exercise reasonable efforts to
minimize, shall be specified in writing (setting forth, in reasonable detail,
the basis of calculation) to the Borrower by the affected Lender, which writing
shall be prima facie evidence of the amounts set forth therein, and such amounts
shall be payable within thirty (30) days of demand therefor.
2.10 CHANGES OF COMMITMENTS; VOLUNTARY REDUCTION OF AVAILABILITY. At any
time and from time to time upon no less than five (5) Business Day's prior
written notice to the Agent, the Borrower may terminate, in whole or in part,
without penalty, the then unused portion of the Revolving Credit Commitments,
thereby causing a corresponding abatement of the Commitment Fee; provided,
however, that the Borrower may not terminate an unused portion of the Revolving
Credit Commitments such that the aggregate Revolving Credit Commitments are
reduced below the Letters of Credit Outstanding. Each such reduction shall be in
a minimum principal amount of $1,000,000 or in integral multiples thereof.
Notice of termination once given shall be irrevocable and the portion of the
Revolving Credit Commitments so terminated shall not be available for borrowing
once such notice has been given under the terms hereof. The Agent shall
-31-
promptly notify each Lender of its pro rata share of such terminated unused
portion and the date of each such termination.
2.11 LOAN ACCOUNT. The Agent shall open and maintain on its books a Loan
Account in the name of the Borrower, with respect to (i) the amounts and types
of Disbursements made, repayments and prepayments of the principal thereof, and
the computation and payment of interest thereon, (ii) Letters of Credit issued,
or participated in, as the case may be, and draws and reimbursements thereon or
thereof, (iii) the computation and payment of the Fees due hereunder to the
Lenders and the Agent, and (iv) the computation of other amounts due and sums
paid and payable to the Lenders and the Agent hereunder. The Loan Account shall
be prima facie evidence as to the amount at any time due to the Lenders and the
Agent from the Borrower hereunder; provided, however, that the failure to make
notations, or to make accurate notations, on such Loan Account including without
limitation notations with respect to interest and Fees pursuant to Section 2.5
or otherwise shall not limit, expand or otherwise affect any obligations of the
Borrower hereunder.
2.12 PAYMENT FROM ACCOUNTS MAINTAINED BY BORROWER. In the event that any
payment of principal, interest, Fees or any other amount due to the Lenders or
the Agent under the Agreement, the Revolving Credit Notes or the other Loan
Documents is not paid when due, the Agent is hereby authorized to effect such
payment by debiting any demand deposit account of the Borrower maintained with
the Agent (excluding however any special purpose fiduciary accounts, which are
designated as such at the time of their creation, or mandated by applicable
statutes, regulations or rules) and distributing such payment to the party to
whom such amounts are due. The Agent shall provide prompt notice to the Borrower
subsequent to any exercise of its right to debit accounts of the Borrower to
effect such payments. This right of debiting accounts of the Borrower is in
addition to any right of set-off accorded the Lenders or the Agent hereunder or
by operation of law.
2.13 TIME, PLACE AND MANNER OF PAYMENTS. All payments and prepayments to be
made by the Borrower in respect of principal, interest or other costs relating
to the Revolving Credit Loans, Reimbursements Obligations and all Fees and any
other amounts due hereunder (excepting those amounts due under Sections 2.3 and
2.9 hereof) shall be made at the principal office of the Agent for the ratable
account of the Lenders or the Agent, as the case may be. The Agent will promptly
pay each such payment received to each Lender or its order in accordance with
Section 8.9 hereof. All payments due a Lender by reason of Sections 2.3 or 2.9
hereof shall be paid at the principal office of the Lender which invoices the
Borrower for such payment. All payments to be made by the Borrower under this
Agreement shall be paid in Dollars and in immediately available funds no later
than 12:00 noon (eastern time) on the date such payment is due, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower, and without setoff, counterclaim or other
deduction of any nature. Notwithstanding anything herein to the contrary, (i)
the Agent's Fee, (ii) the Fronting Fee, and (iii) any interest paid with respect
to any Revolving Credit Loan or any unreimbursed draw on the Letter of Credit to
the extent a Lender has not been required to honor or has not honored its
funding obligation with respect thereto shall be solely for the account of the
Agent.
-32-
2.14 GUARANTY. To secure the repayment of the Bank Indebtedness, the Borrower
will cause each of the Guarantors to execute and deliver to the Agent for the
benefit of the Lenders a Guaranty Agreement substantially in the form of Exhibit
"D-1 or "D-2" attached hereto, as applicable, (i) on the Closing Date in the
case of each Guarantor in existence on such date, and (ii) within ten (10) days
after the formation or acquisition of any entity which meets the definition of a
Guarantor.
3. REPRESENTATIONS AND WARRANTIES.
To induce the Agent and the Lenders to enter into this Agreement and to
make the Revolving Credit Loans, and to issue, renew or extend the Letters of
Credit, as herein provided for, the Borrower represents and warrants to the
Agent and the Lenders that:
3.1 EXISTENCE. Each Loan Party, and each general partner or managing member
of each Loan Party, is a corporation, limited partnership or limited liability
company, as the case may be, duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of organization or
formation, and it is duly qualified and in good standing as a foreign
corporation, limited partnership or limited liability company, as the case may
be, authorized to do business in each jurisdiction where, because of the nature
of its respective properties or businesses, such qualification is required or,
if not so qualified or in good standing in any state, the lack of such
qualification or good standing could not reasonably be expected to result in a
Material Adverse Change.
3.2 CAPITALIZATION: OWNERSHIP. The Parent is the sole member of the
Borrower. The issued and outstanding securities of the Parent as of the Closing
Date consist of approximately 12,005,000 common units of limited partnership
interest and approximately 12,005,000 subordinated units of limited partnership,
all of which have been validly issued and are fully, paid and nonassessable, and
the general partnership interests held by the General Partner. The General
Partner is the sole general partner of the Parent and owned as described on
Schedule 3.2.
3.3 SUBSIDIARIES AND OTHER INVESTMENTS. On the Closing Date, neither the
Parent nor the Borrower has any Subsidiaries or any direct or indirect ownership
interests in any other Person, except as set forth on Schedule 3.3. The Parent,
the Borrower, and each Subsidiary of the Borrower, has good and marketable title
to all the securities of the Subsidiaries issued to it, free and clear of all
liens and encumbrances and all such securities have been duly and validly issued
and are fully paid and nonassessable. The authorized securities of such
Subsidiaries and the ownership thereof, in each case on the Closing Date, are as
shown on Schedule 3.3 attached hereto.
3.4 CORPORATE AUTHORITY. Each Loan Party is duly authorized to execute and
deliver this Agreement, the Revolving Credit Notes and the other Loan Documents
to which it is or will become a party; all necessary corporate, partnership or
limited liability company action necessary to authorize the execution and
delivery of this Agreement, the Revolving Credit Notes and the other Loan
Documents to which it is or will become a party has been properly taken; the
Borrower is and will continue to be duly authorized to borrow hereunder; and
each Loan Party is and will continue to be duly authorized to perform all of the
other terms and provisions of this
-33-
Agreement, the Revolving Credit Notes and the other Loan Documents to which it
is or will become a party.
3.5 ENFORCEABILITY. This Agreement, the Revolving Credit Notes, and each
other Loan Document has been, and will be, duly and validly executed and
delivered by each Loan Party which is or will become a party thereto, and each
constitutes or will constitute a valid and legally binding agreement of such
Loan Party enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, or other laws affecting
creditor's rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
3.6 NO RESTRICTIONS, NO DEFAULT. Neither the execution and delivery of this
Agreement, the Revolving Credit Notes and the other Loan Documents to which it
is or will become a party, the consummation of the transactions herein
contemplated nor compliance with the terms and provisions hereof or of the
Revolving Credit Notes or any other Loan Document, will conflict with or result
in a breach of any of the terms, conditions or provisions of the certificate of
incorporation, by-laws, partnership agreement, operating agreement or other
organizational, formation or governing document of any Loan Party or of any law
or of any regulation, order, writ, injunction or decree of any court or
governmental agency or of any agreement, indenture or other instrument to which
any Loan Party is a party or by which any of them is bound or to which any of
them is subject, or constitute a default thereunder or result in the creation or
imposition of any Encumbrance of any nature whatsoever upon any of the property
or assets of any Loan Party pursuant to the terms of any agreement, indenture or
other instrument, except those items described above that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Change. No event has occurred and is continuing and no condition exists or will
exist after giving effect to the borrowings hereunder to be made on the Closing
Date which constitutes an Event of Default or Potential Default.
3.7 FINANCIAL MATTERS.
3.7a FINANCIAL STATEMENTS. The Borrower has furnished, or caused to be
furnished, to the Lenders and the Agent the audited balance sheets as of
December 31, 2000 and 2001 and the related statements of income, changes in
partners' capital and cash flows for the three (3) Fiscal Years ending December
31, 2001 for each of Western Pocahontas Limited Partnership, Great Northern
Properties Limited Partnership, New Gauley Coal Corporation and Arch Coal, Inc.,
Contributed Properties (as defined in such financial statements) (each of the
foregoing is referred to herein as a "Contributor" and collectively as the
"Contributors"). All such financial statements, including the related notes,
have been prepared in accordance with GAAP, except as expressly noted therein,
and fairly present the financial position of the respective Contributors as of
the dates thereof and the results of the respective Contributor's operations and
the changes in financial position for the periods ended on such dates. There
were no material liabilities of the respective Contributors, contingent or
otherwise, not reflected in such financial statements. Except as has been fully
disclosed in writing to the Lenders and the Agent prior to the date hereof
(including the formation of the Parent and the completion of the Transaction),
there has been no Material Adverse Change in the assets, leases, properties,
business, condition or operations (financial or otherwise) of the respective
Contributors since December 31, 2001.
-34-
3.7b PRO FORMA FINANCIALS. The Borrower has delivered, or caused to be
delivered, to the Lenders and the Agent (i) an unaudited pro forma balance sheet
for the Parent as of December 31, 2001 and giving effect to the Transaction and
(ii) its five-year projections. Such pro forma balance sheet is complete and
correct in all material respects and fairly presents the financial condition of
the Parent and its Subsidiaries, on a Consolidated basis, in all material
respects, and has been prepared in accordance with GAAP (except that such
financial statements do not contain all of the footnote disclosures required by
GAAP). The Parent and its Subsidiaries have no material liabilities, whether
direct or indirect, fixed or contingent, and no liability for taxes, long-term
leases or unusual forward or long-term commitments as of the date of such
financial statements which are not reflected in such financial statements or in
any notes thereto or in such projections.
3.8 ABSENCE OF LITIGATION. Except as described in the Form S-1, there are no
actions, suits, investigations, litigation or governmental proceedings pending
or, to the Borrower's knowledge, threatened against the Parent or any Subsidiary
of the Parent or any of their respective properties, which could reasonably be
expected to result in a Material Adverse Change, or which purport to affect the
legality, validity or enforceability of this Agreement, the Revolving Credit
Notes or any other Loan Document.
3.9 TAX RETURNS AND PAYMENTS. As of the date hereof, the Parent and its
Subsidiaries have filed all Federal and other material tax returns required by
law to be filed and have paid all material taxes, material assessments and other
material governmental charges levied upon the Parent and its Subsidiaries taken
as a whole, or any of the respective properties, assets, income or franchises of
the Parent and its Subsidiaries taken as a whole, which are due and payable,
other than those currently payable or deferrable without penalty or interest or
those which are being contested in good faith and by appropriate proceedings
diligently conducted for which reserves in accordance with GAAP have been
provided. As of the date hereof, the charges, accruals and reserves on the books
of the Parent and its Subsidiaries in respect of Federal, state and local income
taxes for all fiscal periods are adequate, and the Borrower knows of no unpaid
assessments for additional Federal, state or local income taxes for any such
fiscal period or any basis therefor.
3.10 PENSION PLANS. (i) Each Plan has been and will be maintained and funded,
in all material respects, in accordance with its terms and with all provisions
of ERISA and the Code applicable, thereto; (ii) no Reportable Event has occurred
and is continuing with respect to any Plan; (iii) no liability to PBGC has been
incurred with respect to any Plan, other than for premiums due and payable; (iv)
no Plan has been terminated, no proceedings have been instituted to terminate
any Plan, and there exists no intent to terminate or institute proceedings to
terminate any Plan, which has caused or would cause the Borrower or any ERISA
Affiliate to incur any liability to the PBGC under Title IV of ERISA which could
reasonably be expected to result in a Material Adverse Change; (v) no
withdrawal, either complete or partial, has occurred or commenced with respect
to any Multiemployer Plan, and there exists no intent to withdraw either
completely or partially from any Multiemployer Plan where such withdrawal could
reasonably be expected to result in a Material Adverse Change and (vi) the
Borrower is not subject to any liability for unpaid penalties or taxes imposed
under Section 502(i) of ERISA or Section 4975 of the Code
-35-
and has not engaged in a prohibited transaction as defined in Section 406 of
ERISA and Section 4975 of the Code.
3.11 FISCAL YEAR. The Fiscal Year of the Parent and the Borrower ends on
December 31 of each year.
3.12 CONDITION OF AND TITLE TO ASSETS. The Borrower and each of its
Subsidiaries has good title to its properties and assets except for Permitted
Encumbrances and defects in title which, taken as a whole, are not material.
None of the assets of the Borrower or any Subsidiary of the Borrower is subject
to any Encumbrances except for Permitted Encumbrances. All material assets and
properties of the Borrower and its Subsidiaries that are necessary for the
operation of their respective businesses are in good working condition in
accordance with industry standards, ordinary wear and tear excepted, and are
able to serve the functions for which they are currently being used.
3.13 INSURANCE. The Borrower and its Subsidiaries currently maintain
insurance of such types and at least in such amounts as are customarily carried
by, and insures against such risks as are customarily insured against by similar
businesses similarly situated and owning, leasing and operating similar
properties to those owned, leased and operated by the Borrower and its
Subsidiaries. All of such insurance policies are valid and in full force and
effect. No notice has been given or claim made and no grounds exist to cancel or
avoid any, of such policies or to reduce the coverage provided thereby.
3.14 LABOR AND EMPLOYMENT MATTERS. Neither the Borrower nor any Subsidiary of
the Borrower is a party to any collective bargaining agreement.
3.15 COMPLIANCE WITH APPLICABLE LAWS. The Borrower and each Subsidiary (i) is
not in default with respect to any order, writ, injunction or decree of any
court or of any Federal, state, municipal or other Governmental Authority and
(ii) is substantially complying with all applicable statutes and regulations of
each Governmental Authority having jurisdiction over its activities; except for
those orders, writs, injunctions, decrees, statutes and regulations, default
under or non-compliance with which could not reasonably be expected to result in
a Material Adverse Change.
3.16 ENVIRONMENTAL MATTERS. Except as described in the Form S-1, the Borrower
and its Subsidiaries are in material compliance with all applicable
Environmental Laws. Except for any of the following that could not reasonably be
expected to result in a Material Adverse Change, there are no past, pending or,
to the best of the Borrower's knowledge, threatened Environmental Claims of any
material respect against the Borrower or its Subsidiaries or any of the property
of the Borrower or any of its Subsidiaries, and there is no condition or
occurrence on any property owned or leased by the Borrower or any of its
Subsidiaries, to the knowledge of the Borrower, that could reasonably be
anticipated (i) to form the basis of a material Environmental Claim against the
Borrower, such Subsidiary or its properties or (ii) to cause any property owned
or leased by the Borrower or any such Subsidiary to be subject to any material
restrictions on its ownership, occupancy or transferability under any applicable
Environmental Law.
-36-
3.17 CONSENTS AND APPROVALS. No order, authorization, consent, license,
validation or approval of, or notice to, filing, recording, or registration
with, any Governmental Authority or any other Person, or exemption by any
Governmental Authority, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Agreement, the
Revolving Credit Notes or any other Loan Document, (ii) the legality, binding
effect or enforceability of this Agreement, the Revolving Credit Notes or any
other Loan Document or (iii) the consummation of the Transaction, which has not
been duly obtained and which is not in full force and effect (other than those
the failure to obtain which could not be reasonably be expected, individually or
collectively, to result in a Material Adverse Change).
3.18 REGULATIONS T, U AND X. The Borrower is not engaged in the business of
purchasing or selling Margin Stock or extending credit to others for the purpose
of purchasing or carrying Margin Stock and no part of the proceeds of the
Revolving Credit Loans will be used to purchase or carry any Margin Stock or for
any other purpose which would violate or be inconsistent with Regulations T, U
or X.
3.19 INVESTMENT COMPANY ACT. 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.
3.20 PUBLIC UTILITY HOLDING COMPANY ACT. The Borrower is not a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
3.21 SENIOR DEBT STATUS. On the Closing Date and on the date of each
Disbursement and the issuance of each Letter of Credit, all Bank Indebtedness
outstanding under the Loan Documents will constitute senior Indebtedness of the
Borrower and will rank at least pari passu in priority of payment with all other
Indebtedness owed by the Borrower from time to time, except Indebtedness of the
Borrower which may be secured by Encumbrances permitted pursuant to Section 5.2.
3.22 INTELLECTUAL PROPERTY. The Borrower and each Subsidiary of the Borrower
owns, is licensed or otherwise possesses the right to use all patents, patent
rights, trademarks, trade names, service marks, copyrights, intellectual
property, technology, know-how and processes necessary for the conduct of its
business as currently conducted that are material to the condition (financial or
otherwise), business or operations of the Borrower and its Subsidiaries.
3.23 LEASES. All Leases in effect on the Closing Date are listed on Schedule
3.23 attached hereto. Each such Lease is in full force and effect and there is
no default thereunder and no event has occurred or is occurring which after
notice or lapse of time or both will result in such default, except for defaults
which could not reasonably be expected to result in a Material Adverse Change.
Prior to the Closing Date, the Borrower has made available to the Agent a true,
correct and complete copy of each of the Leases. Each lessee under the Coal
Leases is paying royalties currently due under its respective Coal Lease
directly to Borrower and, with the exception of payment of the minimum royalties
required thereunder, lessee has not prepaid any
-37-
sums payable by any lessee under any of the Coal Leases. To the Borrower's
knowledge, no material amount of royalties are currently past due under any of
the Leases. There is no consent or approval required under any Lease with
respect to this Agreement or the consummation of the Transaction which has not
been obtained.
3.24 SOLVENCY. On the Closing Date, and as of the date of each advance of a
Revolving Credit Loan or the issuance, renewal or extension of any Letter of
Credit, as the case may be, and after giving effect to such advance or the
issuance, renewal or extension of a Letter of Credit, and after giving effect to
the consummation of the transactions contemplated by this Agreement (including
the Transaction), the Borrower is, and will be (individually and together with
its Subsidiaries), Solvent.
3.25 TAX TREATMENT. The Parent will be treated as a partnership for federal
income tax purposes.
3.26 DISCLOSURE. Neither this Agreement nor any other document, certificate
or statement furnished to the Lenders or the Agent by or on behalf of any Loan
Party pursuant to this Agreement contains any untrue statement of a material
fact. There is no fact known to any Loan Party which could reasonably be
expected to result in a Material Adverse Change that has not been set forth in
this Agreement or in the other documents, certificates and statements (financial
or otherwise) furnished to the Lenders or the Agent or otherwise disclosed in
writing to the Lenders or the Agent by or on behalf of any Loan Party prior to
or on the date hereof.
3.27 TRANSACTIONS WITH AFFILIATES. Except as set forth in Schedule 3.27 or as
permitted in Section 5.16 herein, there are no loans, leases, royalty agreements
or other agreements, arrangements or other transactions between any Loan Party
and any Affiliate, including between Loan Parties.
4. AFFIRMATIVE COVENANTS.
From the date hereof and thereafter until the termination of the
Revolving Credit Commitments and until all of the Bank Indebtedness is paid in
full, the Borrower agrees that:
4.1 USE OF PROCEEDS. (i) The proceeds of the General Revolving Loans will be
used by the Borrower solely for general corporate, limited liability company or
partnership purposes of the Borrower and its Subsidiaries, including for working
capital, capital expenditures and for Permitted Acquisitions, but will not be
used to fund any Restricted Payment. (ii) The proceeds of the Distribution Loans
will be used by the Borrower solely for funding Quarterly Distributions by the
Parent to the extent permitted by Section 5.1. (iii) The Letters of Credit will
be used for general business purposes in the ordinary course of business or for
such other purposes as may be approved by the Required Lenders.
4.2 FURNISHING INFORMATION. The Borrower shall:
(i) deliver (or cause to be delivered) to the Agent (with
copies for each Lender which Agent shall distribute) within sixty (60)
days after the end of each of the first three (3) Fiscal Quarters in
each Fiscal Year of the Parent, the Parent's Form 10-Q
-38-
filed with the Securities and Exchange Commission, together with (A)
consolidated balance sheet as at the end of such period for the Parent
and its Subsidiaries, (B) consolidated statements of income for such
period for the Parent and its Subsidiaries and, in the case of the
second and third quarterly periods, for the period from the beginning of
the current Fiscal Year to the end of such quarterly period, and (C)
consolidated statements of cash flow for such period for the Parent and
its Subsidiaries and, in the case of the second and third quarterly
periods, for the period from the beginning of the current Fiscal Year to
the end of such quarterly period; and each such statement shall set
forth, in comparative form, corresponding figures for the corresponding
period in the immediately preceding Fiscal Year; and all such statements
shall be prepared in reasonable detail in accordance with GAAP and
certified, subject to changes resulting from year-end adjustments and
the absence of footnotes, by the chief financial officer or treasurer of
the Parent;
(ii) deliver (or cause to be delivered) to the Agent (with
copies for each Lender which Agent shall distribute) within one hundred
twenty (120) days after the end of each Fiscal Year of the Parent, the
Parent's Form 10-K filed with the Securities and Exchange Commission,
together with (A) consolidated balance sheets as at the end of such year
for the Parent and its Subsidiaries, (B) consolidated statements of
income for such year for the Parent and its Subsidiaries, (C)
consolidated statements of cash flow for such year for the Parent and
its Subsidiaries, and (D) consolidated statements of owners' equity for
such year for the Parent and its Subsidiaries; and each such statement
shall set forth, in comparative form, corresponding figures for the
immediately preceding Fiscal Year; and all such financial statements
shall present fairly in all material respects the financial position of
the Parent and its consolidated Subsidiaries, as at the dates indicated
and the results of its operations and its cash flow for the periods
indicated, in conformity with GAAP; and the Borrower shall cause each of
the consolidated financial statements described in the foregoing clauses
(A) through (D) to be certified without limitation as to scope or
material qualification by nationally-recognized independent certified
public accountants;
(iii) deliver to the Agent (with copies for each Lender which
Agent shall distribute), together with each delivery of financial
statements pursuant to items (i) and (ii) above, a Compliance
Certificate of the Parent and the Borrower substantially in the form of
Exhibit "C" hereto, properly completed and signed by an Authorized
Officer of the Borrower and the Parent, (A) stating (1) that such
officer has reviewed the terms of the Loan Documents and has made, or
caused to be made under his supervision, a review of the transactions
and condition of the Parent and its Subsidiaries during the accounting
period covered by such financial statements and that such review has not
disclosed the existence during such accounting period, (2) that neither
the Parent nor the Borrower has knowledge of the existence, as at the
date of such Compliance Certificate, of any condition or event which
constitutes an Event of Default or a Potential Default, or, if any such
condition or event existed or exists, specifying the nature and period
of existence thereof and what action the Borrower has taken or is taking
or proposes to take with respect thereto and (3) that the insurance
required to be maintained by the Borrower and its Subsidiaries by
Section 4.7 hereof is in force and is adequate in nature and amount,
-39-
and (B) demonstrating in reasonable detail compliance as at the end of
such accounting period with the covenants contained in Section 5.3
hereof;
(iv) promptly give written notice to the Agent of any pending
or, to the knowledge of the Borrower, overtly threatened claim in
writing, litigation or threat of litigation which arises between the
Parent, the General Partner, the Borrower, or any of its Subsidiaries,
and any other party or parties (including, without limitation, any
Governmental Authority) which claim, litigation or threat of litigation,
individually or in the aggregate, is reasonably likely to result in a
Material Adverse Change, any such notice to be given not later than five
(5) Business Days after the Borrower becomes aware of the occurrence of
any such claim, litigation or threat of litigation and has ascertained
it is reasonably likely to result in Material Adverse Change;
(v) deliver (or cause to be delivered) to the Agent (with
copies for each Lender which Agent shall distribute) promptly upon their
becoming available, copies of all financial statements, reports, notices
and information statements sent or made available generally by the
Parent to its security holders (including, without limitation, proxy
materials) and copies of all other regular and periodic reports
(including, without limitation, Form 8-K) filed by the Parent with the
Securities and Exchange Commission or any Governmental Authority
succeeding to any of its functions, and of all press releases and other
statements made available generally by the Parent to the public
concerning material developments in the business of the Parent and any
of its Subsidiaries taken as a whole;
(vi) promptly after receipt thereof by the Borrower or the
administrator of any Plan, deliver to the Agent a copy of any notice
from the PBGC that the PBGC is instituting Termination Proceedings if
such Termination Proceedings could reasonably be expected to result in a
Material Adverse Change;
(vii) deliver (or cause to be delivered) to the Agent within
sixty (60) days following the end of each Fiscal Quarter of the Parent,
a report of Available Cash, cash reserves and other related items of the
Parent and its Subsidiaries in form and substance satisfactory to the
Agent;
(viii) promptly and in any event within thirty (30) days after
the Borrower or the administrator of any Plan knows or has reason to
know that any Reportable Event has occurred which would cause the PBGC
to institute Termination Proceedings, give notice thereof to the Agent
if such Termination Proceedings could reasonably be expected to result
in a Material Adverse Change;
(ix) promptly, but not later than five (5) Business Days
after any officer obtains knowledge of the happening of any event which
constitutes an Event of Default or a Potential Default, give written
notice thereof to the Agent;
(x) deliver to the Agent within one hundred twenty (120)
days following the end of each Fiscal Year of the Borrower, an
operational report in form and substance
-40-
satisfactory to the Agent, showing (A) five-year projections, (B) tons
of coal mined and sold by lessee, including actual tons mined and sold
compared to the previous Fiscal Year and to budget, (C) royalty income
by lessee, and, upon the reasonable request of the Agent, (D) a coal
reserve summary and (E) a lease summary, including individual lease
profiles and lease property maps;
(xi) in the event the Borrower or any of its Subsidiaries
gives to or receives notice from any Governmental Authority of any
Contamination or receives any Environmental Claim from any Person,
including any state agency responsible in whole or in part for
environmental matters in the state in which its properties are located
or the United States Environmental Protection Agency which in either
case could reasonably be expected to result in a Material Adverse
Change, then Borrower shall, within five (5) Business Days, give written
notice of same to the Agent detailing non-privileged and
non-confidential facts and circumstances giving rise to the
Contamination or Environmental Claim. Such information is to be provided
to allow the Agent and the Lenders to protect their interests hereunder
and is not intended to create any obligation upon the Agent or any
Lender with respect thereto;
(xii) promptly after receipt thereof, deliver to the Agent
copies of any statement or report regarding the rating of the Parent's
or the Borrower's debt furnished by any rating agency to any Loan Party;
and
(xiii) promptly, but not later than five (5) Business Days
after any sale, transfer or disposition of assets permitted by Section
5.7(iv), deliver to the Agent written notice of such transaction,
including the amount of proceeds.
(xiv) promptly, deliver to the Lenders such other publicly
available information and data with respect to the Parent, the Borrower
or any of its Subsidiaries as from time to time may be reasonably
requested by any Lender.
4.3 VISITATION. The Borrower will permit, and will cause each of its
Subsidiaries to permit, the Lenders and the Lenders' designated employees and
agents to have access, from time to time, and, prior to the occurrence of an
Event of Default, upon reasonable notice and during normal business hours at
reasonable intervals, to visit any of the properties of the Borrower or any such
Subsidiary, to examine and make copies of any of its books of record and account
and such reports and returns as the Borrower or any such Subsidiary may file
with any Governmental Authority and discuss the Borrower's or any such
Subsidiary's affairs and accounts with, and be advised about them, by any
Authorized Officer.
4.4 PRESERVATION OF EXISTENCE; QUALIFICATION. At its own cost and expense,
the Borrower will do all things necessary to preserve and keep in full force and
effect its and each of its Subsidiaries' corporate, partnership or limited
liability company existence and qualification under the laws of their respective
states of incorporation and each state where, due to the nature of their
respective activities or the ownership of their respective properties,
qualification to do business is required except where (i) the lack of corporate,
partnership or limited liability
-41-
company existence of a Subsidiary or (ii) the failure to be so qualified could
not reasonably be expected to result in a Material Adverse Change or except as
permitted by Sections 5.8 and 7.4.
4.5 COMPLIANCE WITH LAWS AND CONTRACTS. The Borrower shall and shall cause
each Subsidiary to comply with all applicable Governmental Rules and including,
but not limited to, Environmental Laws, except where failure to comply could not
reasonably be expected to result in a Material Adverse Change.
4.6 PAYMENT OF TAXES AND OTHER LIABILITIES. The Borrower shall and shall
cause each Subsidiary to promptly pay and discharge all obligations, accounts
and liabilities to which it is subject or which are asserted against it and
which obligations, accounts and liabilities are, to the Borrower and the
Subsidiaries taken as a whole, material, including but not limited to all taxes,
assessments and governmental charges and levies upon it or upon any of its
income, profits, or property prior to the date on which penalties attach
thereto; provided, however, that for purposes of this Agreement, neither the
Borrower nor the relevant Subsidiary shall be required to pay any tax,
assessment, charge or levy (i) the payment of which is being contested in good
faith by appropriate proceedings diligently conducted and (ii) as to which the
Borrower shall have set aside on its books reserves for such claims as are
determined to be adequate pursuant to the accounting procedures employed by the
Borrower, but only to the extent that failure to discharge any such liabilities
upon the conclusion of such proceedings or at any other applicable time would
not result in any additional liability which could reasonably be expected to
result in a Material Adverse Change.
4.7 INSURANCE. The Borrower will keep and maintain, and cause each
Subsidiary to keep and maintain, insurance with responsible insurance companies,
on such of their respective properties, in such amounts and against such risks
as is customarily maintained by similar businesses similarly situated and
owning, leasing or operating similar properties. The Borrower may satisfy the
requirements of the preceding sentence with self insurance and deductibles
consistent with customary and prudent industry standards, all as reasonably
satisfactory to the Agent. The Borrower will furnish to the Agent at the Closing
and together with the annual reports delivered pursuant to Subsection 4.2(ii)
hereof, a certificate of an Authorized Officer of the Borrower certifying that
such insurance is in force, is adequate in nature and amount and complies with
the Borrower's and each Subsidiary's obligations under this Section 4.7.
4.8 MAINTENANCE OF PROPERTIES. The Borrower shall and shall cause its
Subsidiaries to maintain, preserve, protect and keep their respective properties
in good repair, working order and condition (ordinary, wear and tear excepted),
and make all necessary and proper repairs, renewals and replacements so that
their business carried on in connection therewith may be properly and
advantageously conducted at all times, except where the failure to maintain,
preserve, protect or keep such properties could not reasonably be expected to
result in a Material Adverse Change.
4.9 PLANS AND BENEFIT ARRANGEMENT. The Borrower shall, and shall cause each
ERISA Affiliate to, comply with ERISA, the Code and all other applicable laws
which are applicable to Plans, except where the failure to do so, alone or in
conjunction with any other failure to do so, could not reasonably be expected to
result in a Material Adverse Change.
-42-
4.10 SENIOR DEBT STATUS. The Bank Indebtedness will rank at least pari passu
in priority of payment with all other Indebtedness of the Borrower, except
Indebtedness of the Borrower which may be secured by Encumbrances permitted
pursuant to Section 5.2.
4.11 LEASES; MATERIAL CONTRACTS. (i) The Borrower will perform and observe,
or cause to be performed and observed, all of the covenants and conditions
required to be performed by it or any of its Subsidiaries under each Lease,
except where such failure could not reasonably be expected to result in a
Material Adverse Change.
(ii) The Borrower will promptly notify the Agent in writing of the
receipt by the Borrower of any notice from any third party to the Borrower of
any material default under, or the termination of, any Material Contract
pursuant to the provisions of such Material Contract, and will promptly cause a
copy of each such notice received by the Borrower from any third party to be
delivered to the Agent.
(iii) The Borrower will not, without the prior written consent of the
Required Lenders, terminate or surrender, or suffer or permit any termination or
surrender, of any Material Contract during the initial term thereof or any valid
extension thereto, other than the termination of such Material Contract as the
result of the exhaustion of the coal reserves subject thereto as shown on the
reports delivered to the Agent pursuant to Section 4.2(x) or otherwise in
accordance with the terms of such Material Contract.
4.12 CLEAN-DOWN PERIOD. The Borrower will cause the aggregate outstanding
principal balance of Distribution Loans to be zero for a period of at least
fifteen (15) consecutive days during each twelve month period.
4.13 ENVIRONMENTAL INDEMNIFICATION. The Borrower shall defend and indemnify
the Agent and each Lender and hold them harmless from and against all loss,
liability, damage, expense, claims, costs, fines, penalties, assessments
(including interest on any of the foregoing) and reasonable attorneys' fees,
suffered or incurred by the Agent or any Lender which arise, result from or in
any way relate to a breach or violation by the Borrower or any Subsidiary of the
Borrower of any applicable Environmental Law, either prior to or subsequent to
the date hereof, including the assertion or imposition of any Encumbrance on the
Borrower's or its Subsidiaries' assets, or which relate to or arise out of an
Environmental Claim. The Borrower's obligations hereunder shall survive the
termination of this Agreement and the repayment of the Bank Indebtedness.
5. NEGATIVE COVENANTS.
From the date hereof and thereafter until the Revolving Credit
Commitments are terminated and until the Bank Indebtedness is paid in full, the
Borrower agrees that:
5.1 DIVIDENDS, ETC.. The Borrower will not declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any member interests or other equity of the
Borrower, or purchase, redeem or otherwise acquire for value (or permit any of
its Subsidiaries to do so) any member interests or other equity of the Borrower
or any warrants, rights or options to acquire any such interests, now or
hereafter outstanding (each
-43-
of the foregoing being a "Restricted Payment"), except that, so long as no Event
of Default or Potential Default shall have occurred and be continuing at such
time or could reasonably result therefrom, (a) the Borrower may declare, make or
incur a liability to make distributions to the Parent to fund Quarterly
Distributions provided that (i) such Quarterly Distributions are made in
accordance with the provisions of the MLP Agreement (as in effect on the Closing
Date), and (ii) the aggregate amount of Quarterly Distributions made by the
Parent with respect to any Fiscal Quarter shall not exceed Available Cash for
such Fiscal Quarter; and (b) the Borrower may make payments to the Parent in
such amounts as required to pay the general and administrative costs and
expenses of the Parent incurred in connection with the operation of its business
as permitted pursuant to the terms of its Guaranty Agreement.
5.2 ENCUMBRANCES. The Borrower will not create or suffer to exist, or permit
any of its Subsidiaries to create or suffer to exist, any Encumbrance or any
other type of preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or permit any of
its Subsidiaries to assign, any right to receive income, in each case to secure
or provide for the payment of any Indebtedness of any Person, other than (a)
Encumbrances created under the Loan Documents, (b) purchase money liens or
purchase money security interests upon or in any property acquired or held by
the Borrower or any Subsidiary in the ordinary course of business to secure the
purchase price of such property or to secure indebtedness incurred solely for
the purpose of financing the acquisition of such property, so long as such
indebtedness does not exceed 100% of the purchase price of such property, (c)
Encumbrances existing on such property at the time of the acquisition of such
property or the acquisition of such Subsidiary (other than any such Encumbrance
created as a result of such acquisition), (d) Permitted Encumbrances, or (e)
extensions or renewals of any Encumbrance described in clauses (b) through (d)
above, provided, that (i) any such extension or renewal shall be limited to the
property theretofore subject to such Encumbrance, (ii) the principal amount of
the Indebtedness secured by such Encumbrance shall not be increased and (iii)
the aggregate principal amount of Indebtedness secured by Encumbrances referred
to in clauses (b) through (d) above shall not exceed $1,000,000 at any time
outstanding (it being expressly agreed that any refinanced Indebtedness shall
not be considered new Indebtedness hereunder).
5.3 FINANCIAL COVENANTS.
5.3a LEVERAGE RATIO. At no time shall the ratio of the Parent's Consolidated
Total Indebtedness to its Consolidated EBITDDA for the four (4) most recently
completed Fiscal Quarters, taken as a single accounting period, exceed 2.50 to
1.00.
5.3b INTEREST COVERAGE RATIO. At no time shall the ratio of the Parent's
Consolidated EBITDDA for the four (4) most recently completed Fiscal Quarters,
taken as a single accounting period, to its Consolidated Interest Expense for
the four (4) most recently completed Fiscal Quarters, taken as a single
accounting period, be less than 4.00 to 1.00.
5.3c CALCULATION OF CONSOLIDATED EBITDDA. For purposes of calculating
Consolidated EBITDDA of the Parent and its Consolidated Subsidiaries for any
period for the purposes of this Section 5.3 only, the earnings before interest,
taxes, depletion, depreciation and amortization calculated as set forth in the
definition of "Consolidated EBITDDA" above of any Person or
-44-
assets acquired by the Borrower or its Subsidiaries during such period shall be
included on a pro forma basis for such period as if such acquisition and the
incurrence or assumption of any Indebtedness in connection therewith had
occurred on the first day of such period and based upon the financial statements
and other information delivered to the Agent pursuant to Section 5.4.
5.4 ACQUISITIONS. The Borrower shall not, except as otherwise permitted or
required in this Agreement, purchase or otherwise acquire, or permit any
Subsidiary to purchase or acquire, any obligations or stock of, or any other
interest in, or all or substantially all of the assets of, any Person
whatsoever, other than (i) pursuant to a merger permitted under Section 5.8
below or (ii) other non-hostile acquisitions of the equity securities or assets
of any domestic Person, provided that (a) immediately prior to and after giving
effect to any such acquisition, no Event of Default or Potential Default shall
have occurred or be continuing or will result therefrom, (b) such acquisition is
consummated in accordance with applicable law, except where any non-compliance
with applicable law could not reasonably be expected to result in a Material
Adverse Change, (c) if such acquisition is of equity securities of a Person,
such Person complies with Section 2.14 above, and substantially all of the
assets held by such Person are Permitted Assets, (d) if such acquisition is of
assets, substantially all such assets are Permitted Assets, (e) the Borrower
shall be in pro forma compliance with this Agreement and shall deliver to the
Agent no less than three (3) Business Days prior to the date of the proposed
acquisition (A) a certificate which indicates pro forma compliance with the
financial covenants set forth in Section 5.3, in each case after giving effect
to such acquisition and (B) if available, financial statements with respect to
such Person or assets supporting the calculations set forth in such certificate
and in form and substance satisfactory to the Agent, and (f) such acquired
Person or assets shall not be subject to any material liabilities or
Encumbrances except as permitted by this Agreement. A transaction meeting the
requirements of clause (ii) above shall be referred to herein as a "Permitted
Acquisition."
5.5 INDEBTEDNESS. The Borrower shall not and shall not permit its
Subsidiaries to create, incur, assume or permit to exist or remain outstanding
any Indebtedness, except for:
(i) the Indebtedness owed by the Loan Parties under the Loan
Documents;
(ii) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(iii) Indebtedness of the Borrower and its Subsidiaries secured by
Encumbrances permitted under Section 5.2;
(iv) performance Guarantees entered into in the ordinary course of
business with respect to the performance of any obligation of any Subsidiary of
the Borrower;
(v) Indebtedness of the Borrower incurred pursuant to a Hedging
Obligation with a Lender or an affiliate of a Lender entered into in the
ordinary course of the business of the Borrower and not for speculative
purposes; and
-45-
(vi) other unsecured Indebtedness owed by the Borrower and its
Subsidiaries pursuant to a sale of notes in a public offering or a private
placement in an aggregate principal amount not to exceed $100,000,000 at any one
time outstanding, provided (a) the terms and provisions of such Indebtedness are
no more restrictive than the terms and provisions of this Agreement as
determined by the Agent in its sole discretion and such terms and provisions are
otherwise satisfactory to the Agent in its sole discretion, (b) the final
maturity date of such Indebtedness is after the Termination Date and (c) after
giving effect to the issuance of such Indebtedness, the Borrower shall be in pro
forma compliance with the covenants set forth in Section 5.3 as demonstrated by
the delivery of a Pro Forma Compliance Certificate to the Agent not less than
ten (10) Business Days prior to the closing of such Indebtedness.
5.6 LOANS, ACQUISITIONS AND INVESTMENTS. The Borrower and its Subsidiaries
shall not at any time make any loan or advance to, or purchase or otherwise
acquire any stock, bonds, notes or securities of, or any partnership interest
(whether general or limited) or other equity interest in, or assets of, or any
other investment or interest in or make any capital contribution to, any other
Person, or agree to or become liable to do any of the foregoing, except for:
(a) trade credit extended on usual and customary terms in
the ordinary course of business;
(b) fixed assets, equipment or inventory acquired in the
ordinary course of business;
(c) loans and advances to employees to meet expenses
incurred by such employees in the ordinary course of business, including without
limitation relocation expenses;
(d) Permitted Investments;
(e) loans, advances and capital contributions by a
Subsidiary of the Borrower to the Borrower or any of the Borrower's other
Subsidiaries or loans, advances and capital contributions by the Borrower to any
of its Subsidiaries;
(f) Permitted Acquisitions; and
(g) loans and/or investments listed on Schedule 5.6.
5.7 SALES OF ASSETS. Neither the Borrower nor any Subsidiary shall enter
into any arrangement, direct or indirect, pursuant to which the Borrower or any
Subsidiary shall sell or otherwise transfer or dispose of any property, real,
personal or mixed, whether now owned or hereafter acquired, except (i) sales,
transfers or dispositions in the ordinary course of business, (ii) sales,
transfers or dispositions not in the ordinary course of business provided that
the aggregate proceeds of all such sales, transfers and dispositions permitted
by this item (ii) shal1 not exceed, (A) from the date hereof during any period
of twelve (12) consecutive months more than $10,000,000 and (B) during the term
hereof more than $25,000,000, (iii) sales of wetlands credits, and (iv) sales,
transfers or dispositions not in the ordinary course of business and in excess
of the amounts permitted under Section 5.7(ii), provided that the proceeds of
the sale, transfer or disposition (a) represent the fair market value of the
assets and (b) within 180 days
-46-
after the date of such transaction, and at the Borrower's election, are applied
to either (1) the purchase or acquisition of Permitted Assets or (2) the
repayment of the Revolving Credit Loans and permanent reduction of the Revolving
Credit Commitments in the amount of such proceeds, provided further until the
Borrower makes its election under Section 5.8(iv)(b), the Revolving Credit
Commitment shall be temporarily reduced by the amount of the proceeds received
by the Borrower.
5.8 MERGER. The Borrower shall not merge or consolidate with any other
Person or permit any of its Subsidiaries to do so, except, so long as no Event
of Default or Potential Default then exists or would result therefrom, (A) a
merger or consolidation of any Subsidiary with or into any other Subsidiary or
the Borrower or (B) a merger or consolidation constituting a Permitted
Acquisition, provided that in any merger or consolidation involving the
Borrower, the Borrower is the surviving entity.
5.9 REGULATION T, U AND X COMPLIANCE. The Borrower shall not and shall not
permit any Subsidiary to use the proceeds of a Revolving Credit Loan to purchase
or carry Margin Stock or otherwise act so as to cause any Lender, in extending
credit hereunder, to be in contravention of Regulations T, U or X.
5.10 ERISA. The Borrower shall not and shall not permit any ERISA Affiliate
to permit any Plan to:
(i) engage in any "prohibited transaction", as such term is
defined in Section 406 of ERISA and Section 4975 of the Code;
(ii) incur any "accumulated funding deficiency", as such term
is defined in Section 302 of ERISA, whether or not waived;
(iii) be terminated in a manner which could result in
liability to the PBGC under Title IV of ERISA or the imposition of a
lien on the property of the Borrower or any ERISA Affiliate pursuant to
Section 4068 of ERISA; or
(iv) partially or completely withdraw from any Multiemployer
Plan, which withdrawal shall subject the Borrower or any ERISA Affiliate
to multiemployer withdrawal liability pursuant to Section 4201 of ERISA,
if any such event could reasonably be expected to result in a Material Adverse
Change.
5.11 NO LIMITATION ON DIVIDENDS AND DISTRIBUTIONS. The Borrower shall not
permit its Subsidiaries to enter into or otherwise be bound by any agreement, or
any provision of any certificate of incorporation, by-laws, partnership
agreement, operating agreement or other organizational, formation or governing
document, not to pay dividends or make distributions to the Borrower, except as
imposed by any Governmental Rule or Governmental Authority.
5.12 NEGATIVE PLEDGES. The Borrower shall not directly or indirectly enter
into or assume, or permit any Subsidiary to enter into or assume, any agreement
(other than this Agreement and the other Loan Documents), or any provision of
any certificate of incorporation, by-laws, partnership
-47-
agreement, operating agreement or other organizational, formation or governing
document, prohibiting the creation or assumption of any lien or Encumbrance upon
any of the Borrower's or its Subsidiaries' properties, whether now owned or
hereafter created or acquired, or otherwise prohibiting or restricting any
transaction contemplated hereby; provided that the foregoing shall not apply to
(i) restrictions and conditions imposed by any Governmental Rule or by any Loan
Document, (ii) restrictions or conditions imposed by any agreement relating to
secured Indebtedness or other obligations permitted by this Agreement but only
to the extent such restriction or condition is limited to the specific assets
subject to a Permitted Encumbrance, or (iii) customary provisions in leases or
other agreements restricting the assignment thereof.
5.13 CHANGES IN ORGANIZATIONAL DOCUMENTS. Permit or suffer to exist any
amendment or modification in any respect of the Borrower's organizational
documents or the MLP Agreement without providing at least fifteen (15) days
prior written notice to the Agent and the Lenders and, in the event such change
could reasonably be expected to materially adversely affect the interests of the
Lenders as determined by the Agent in its sole discretion, obtaining the prior
written consent of the Required Lenders.
5.14 CHANGE IN NATURE OF BUSINESS. The Borrower shall not make, or permit any
of its Subsidiaries to make, any material change in the nature of their
businesses, taken as a whole, as carried on at the Closing Date.
5.15 CHANGES IN OMNIBUS AGREEMENT. Without the prior written consent of the
Agent, which consent shall not be unreasonably withheld or delayed, neither the
General Partner, the Borrower nor any of its Subsidiaries shall (i) make any
material change to the terms of Omnibus Agreement, (ii) release any party from
its obligations under the Omnibus Agreement or (iii) fail to diligently enforce
the Omnibus Agreement and avail itself of the rights and indemnities available
thereunder.
5.16 TRANSACTIONS WITH AFFILIATES. Neither the Borrower nor any Loan Party
shall enter into or carry out any transaction with an Affiliate (including
purchasing property or services from or selling property or services to any
Affiliate of Borrower or other Person) unless such transaction is not otherwise
prohibited by this Agreement, is entered into in the ordinary course of business
upon fair and reasonable arm's-length terms and conditions.
6. CONDITIONS PRECEDENT TO DISBURSEMENTS AND ISSUANCE OF LETTERS OF CREDIT
6.1 ALL DISBURSEMENTS. The obligation of the Lenders to make any
Disbursements hereunder, or of the Agent to issue, renew or extend any Letters
of Credit hereunder, is subject to the performance by the Borrower of its
obligations to be performed hereunder at or prior to the making of any such
Disbursement or the issuance, renewal or extension of any such Letter of Credit,
as the case may be, and to the satisfaction of each of the following conditions
precedent:
6.1a NO DEFAULT. The Borrower shall have performed and complied, in all
material respects, with all agreements and conditions herein required to be
performed or complied with by it prior to any Disbursements or to the issuance,
renewal or extension of any Letter of Credit, and, at the
-48-
time of such Disbursements or such issuance, renewal or extension, no Potential
Default or Event of Default shall exist.
6.1b REPRESENTATIONS CORRECT. The representations and warranties contained in
Article III hereof and in the other Loan Documents shall be correct in all
material respects (i) when made and (ii) at the time of each Disbursement or
issuance, renewal or extension of a Letter of Credit except for such
representations and warranties which relate solely to an earlier date (in which
case such representations and warranties shall have been true and correct in all
material respects as of such date).
6.1c NO MATERIAL ADVERSE CHANGE. At the time of the making of any
Disbursement or the issuance, renewal or extension of any Letter of Credit, no
Material Adverse Change shall have occurred and be continuing.
6.1d LOAN REQUEST/APPLICATION. The Borrower shall have complied (i) with the
requirements of Section 2.1 or Section 2.2, as appropriate, with respect to a
requested Disbursement, and (ii) with the requirements of Section 2.6 with
respect to the issuance of a Letter of Credit.
Each request for Disbursement and each request for the issuance, renewal or
extension of a Letter of Credit shall constitute, as at the time made, a
representation and warranty by the Borrower that the matters set forth in
Subsections 0.xx, 6.1b and 6.1c above are true and correct.
6.2 CONDITIONS PRECEDENT TO INITIAL BORROWINGS. The obligation of the
Lenders to make the initial Disbursements is subject to the satisfaction of each
of the following conditions precedent in addition to the applicable conditions
precedent set forth in Section 6.1 above:
(i) Receipt by the Agent on behalf of each Lender of a
counterpart original of this Agreement executed by the other Lenders and
the Borrower.
(ii) Receipt by the Agent on behalf of each Lender of a
Revolving Credit Note, substantially in the form of Exhibit "A" attached
hereto, made payable to such Lender in the amount of such Lender's
Revolving Credit Commitment and otherwise properly completed and
executed by the Borrower.
(iii) Receipt by the Agent of all schedules to this Agreement,
in form and substance satisfactory to the Lenders.
(iv) Receipt by the Agent of a Guaranty Agreement duly
executed by each of the Guarantors.
(v) Receipt by the Agent of the following formation,
governance or other documents for each Loan Party and the General
Partner:
(a) a copy of its partnership agreement, operating
agreement, articles and/or certificate of incorporation, and other
formation or governmental documents, certified as true and correct by
secretary, of the respective Loan Party or the General Partner, as the
case may be:
-49-
(b) good standing or subsistence certificates
relating to each Loan Party and the General Partner executed by the
Secretary of State of each state in which such Loan Party or the General
Partner, as the case may be, conducts its business;
(c) resolutions or other evidence of approval of the
partners, board of directors or other governing body authorizing the
execution of the Loan Documents and the performance by the Loan Parties
pursuant thereto, certified by the secretary or other officer of the
respective Loan Party (or, if applicable, of the respective Loan Party's
general partner or managing member) as being true, correct, complete and
in effect and in form and substance satisfactory to the Agent:
(d) a copy of the by-laws (or equivalent documents),
if any, and all amendments thereto, certified by the secretary or other
officer of each Loan Party and the General Partner as being true,
correct, complete and in effect; and
(e) an incumbency certificate for each Loan Party
and the General Partner, showing the names of the Authorized Officers of
each Loan Party and the General Partner, their titles and containing
their true signatures.
(vi) Receipt by the Agent of a certificate of an Authorized
Officer of the Borrower certifying that the insurance required to be
maintained by the Borrower and its Subsidiaries by Section 4.7 hereof is
in force and is adequate in nature and amount.
(vii) Receipt by the Agent of written instructions addressed
to the Agent and executed by an Authorized Officer of the Borrower
relating to the initial Disbursements.
(viii) Receipt by the Agent on behalf of each Lender of a
signed favorable opinion of Xxxxxx & Xxxxxx L.L.P, special counsel to
the Borrower, dated as of the Closing Date and in form and substance
satisfactory to Agent and its counsel as to the matters set forth on
Exhibit "E" attached hereto.
(ix) Receipt by the Agent, for the benefit of each Lender and
the Agent, of a certificate of the Borrower, dated the Closing Date and
signed by an Authorized Officer of the Borrower, regarding the
satisfaction of the conditions set forth in Subsections 6.1a, 6.1b and
6.1c.
(x) Receipt by the Agent on its own behalf and on behalf of
the Lenders of all Fees due and payable on or prior to the Closing Date
and all reimbursable expenses incurred on or prior to the Closing Date
for which invoices (in reasonable detail) have been furnished to the
Borrower.
(xi) The Lenders shall have received satisfactory evidence
that (a) the Transaction has been completed, including without
limitation the offering of the common units of the Parent pursuant to
the Transaction and (b) the Parent shall have received (1) cash from the
proceeds of such offering in an amount at least equal to $50,100,000
(after deducting underwriting discounts but before paying estimated
offering expenses)
-50-
and (2) cash from Arch Coal in an amount at least equal to $800,000.
[THESE ARE THE NUMBERS IN THE LATEST S-1 I HAVE BUT MAY NOT BE
CURRENT.]
(xii) Receipt by the Agent of true and correct copies of the
Leases listed on Schedule 3.23 and satisfactory review thereof by the
Agent and its counsel.
(xiii) The Agent and the Lenders (a) shall have completed and
be satisfied with all requested due diligence with respect to the
Borrower and the other Loan Parties, including without limitation, (1)
a review of Lease files, title files, record searches and Encumbrances
affecting Leases, (2) an independent reserve report, (3) an analysis of
environmental liabilities with respect to properties owned or to be
acquired at Closing, and (4) the financial statements and pro forma
financial statements delivered pursuant to Section 3.7; (b) shall be
satisfied as to the amount and nature of all environmental, tax, ERISA,
employee retirement benefit and other contingent liabilities to which
the Borrower and the other Loan Parties may be subject; and (c) shall
be satisfied that, as of the Closing, neither the Borrower nor any
other Loan Party has any outstanding Indebtedness except for the Bank
Indebtedness or as otherwise expressly permitted under Section 5.5.
(xiv) The Agent and the Lenders shall have received a true,
correct and complete copy of the Omnibus Agreement and all other
documents transferring the Leases and any other material agreements
from the Contributors to the Loan Parties, all of which shall be
satisfactory to the Agent and the Lenders.
7. DEFAULTS
Each of the events or occurrences described in Sections 7.1 to and
including 7.10 below shall constitute an "Event of Default" hereunder.
7.1 PAYMENT DEFAULT. Default in the payment of (i) interest on any
Revolving Credit Loan, any Fee, or any other amount due hereunder or under any
other Loan Document, and continuance of any such nonpayment of such interest,
Fee or other amount for three (3) Business Days, or (ii) principal of any
Revolving Credit Loan when due.
7.2 NONPAYMENT OF OTHER INDEBTEDNESS. Any Loan Party shall fail to pay any
Indebtedness of such Loan Party, other than the Bank Indebtedness, in an
aggregate amount as to the Loan Parties collectively of $1,000,000 or more, as
and when the same shall become due, or the occurrence of any default under any
agreement or instrument under or pursuant to which such Indebtedness is incurred
or issued and continuance of such default beyond the period of grace, if any,
allowed with respect thereto, if such default permits or causes the acceleration
of such Indebtedness or the termination of any commitment to lend with respect
thereto.
7.3 INSOLVENCY.
7.3a INVOLUNTARY PROCEEDINGS. A proceeding shall have been instituted in a
court having jurisdiction seeking a decree or order for relief in respect of the
Parent, the General Partner, the Borrower or any Subsidiary of the Borrower in
an involuntary case under the Federal bankruptcy
-51-
laws, or any other similar applicable Federal or state law, now or hereafter in
effect, or for the appointment of a receiver, liquidator, trustee, sequestrator
or similar official for the Parent, the General Partner, the Borrower or any of
its Subsidiaries or for a substantial part of its or their property, or for the
winding up or liquidation of its or their affairs, and the same shall remain
undismissed or unstayed and in effect for a period of sixty (60) days.
7.3b VOLUNTARY PROCEEDINGS. The Parent, the General Partner, the Borrower or
any Subsidiary of the Borrower shall institute proceedings to be adjudicated a
voluntary bankrupt, or any of them shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the Federal bankruptcy laws, or any other similar
applicable Federal or state law now or hereinafter in effect, or shall consent
to the filing of any such petition or shall consent to the appointment of a
receiver, liquidator, trustee, sequestrator or similar official for the Parent,
the General Partner, the Borrower or any of its Subsidiaries or for a
substantial part of its or their property, or shall make an assignment for the
benefit of creditors, or shall admit in writing its or their inability to pay
its or their debts generally as they become due, or corporate action shall be
taken by the Parent, the General Partner, the Borrower or any of its
Subsidiaries in furtherance of any of the aforesaid purposes.
7.4 TERMINATION OF EXISTENCE. The Borrower, the Parent, the General Partner
or any Subsidiary of the Borrower shall terminate its existence or cease to
exist (i) except by reason of a permitted merger or liquidation of a Subsidiary
into or a consolidation of a Subsidiary with the Borrower or another Subsidiary
of the Borrower, or (ii) except where a Subsidiary's termination or cessation of
its existence could not reasonably be expected to result in a Material Adverse
Change.
7.5 FAILURE TO COMPLY WITH LOAN DOCUMENTS.
7.5a FAILURE TO COMPLY WITH ARTICLE V COVENANTS AND CERTAIN ARTICLE IV
COVENANTS. The Borrower shall default in the observance or performance of
Section 4.3, Section 4.4, Section 4.10, Section 4.11 or of any covenant
contained in Article V.
7.5b FAILURE TO COMPLY WITH OTHER COVENANTS AND LOAN DOCUMENTS. Any Loan
Party shall default in the due performance or observance of any other covenant,
condition or provision set forth herein or in any of the other Loan Documents to
which it is a party and such default shall not be remedied (i) with respect to
any default under Section 4.2(ix) hereunder for a period of ten (10) days, and
(ii) with respect to any other such default for a period of thirty (30) days
after such default is known to any Authorized Officer of the Borrower or notice
thereof has been given to the Borrower by the Agent.
7.6 MISREPRESENTATION. Any representation or warranty made by any Loan
Party herein or in any other Loan Document proves to have been untrue in any
material respect as of the date when made, or any certificate or other document
furnished by the Borrower or any other Loan Party to the Agent or any Lender
pursuant to the provisions hereof proves to have been untrue in any material
respect on the date as of which the facts set forth therein are stated or
certified.
-52-
7.7 ADVERSE JUDGMENTS, ETC.. Entry or filing of any one or more judgments,
writs or warrants of attachment or of any similar process in an aggregate
amount, as to the Parent, the Borrower and its Subsidiaries collectively, of
$1,000,000 or more in excess of any third-party insurance protecting against
such liability against the Parent, the Borrower and its Subsidiaries or against
any of their respective properties and failure of the Borrower or its
Subsidiaries to vacate, pay, bond, stay or contest in good faith such judgments,
writs, warrants of attachment or other process within a period of thirty (30)
days.
7.8 INVALIDITY OR UNENFORCEABILITY. This Agreement, the Revolving Credit
Notes or any other Loan Document ceases to be valid and binding on any Loan
Party in any material respect or is declared null and void in any material
respect, or the validity or enforceability thereof is contested by any Loan
Party or any Loan Party denies it has any or further liability under this
Agreement, any Revolving Credit Note or under the other Loan Documents to which
it is a party.
7.9 ERISA. (i) A trustee shall be appointed by a court of competent
jurisdiction to administer any Plan of the Borrower or any ERISA Affiliate; (ii)
the PBGC shall terminate any Plan of the Borrower or any ERISA Affiliate or
appoint a trustee to administer any such Plan; or (iii) the Borrower or any
ERISA Affiliate shall incur any liability to the PBGC in connection with any
Plan, which, in any such case of clauses (i), (ii) or (iii), could reasonably be
expected to result in a Material Adverse Change.
7.10 CHANGE IN CONTROL. Any Change in Control shall occur.
7.11 CONSEQUENCES OF AN EVENT OF DEFAULT. If one or more of the Events of
Default occur then (a) if such Event of Default is set forth in Sections 7.3 or
7.4, the Revolving Credit Commitments shall automatically terminate and the
Revolving Credit Notes then outstanding shall become immediately due and
payable, without necessity of demand, presentation, protest, notice of dishonor
or notice of default, and the Agent shall be under no further obligation to
issue, renew, extend or amend Letters of Credit hereunder; or (b) if such Event
of Default is set forth in any Sections of this Article VII other than Sections
7.3 or 7.4, then the Agent, at the request of the Required Lenders, and without
notice to the Borrower, shall declare the Borrower in default hereunder, and
upon such declaration, shall, at the request of the Required Lenders, terminate
the Revolving Credit Commitments and/or terminate the obligation of the Agent to
issue, renew, extend or amend Letters of Credit and/or declare the unpaid
principal amount of the Revolving Credit Notes then outstanding and all interest
accrued thereon, any unpaid Fees and all other Bank Indebtedness immediately due
and payable, without necessity of any further demand, presentation, protest,
notice of dishonor or further notice of default, whereupon such amounts shall be
immediately due and payable.
7.12 REMEDIES UPON DEFAULT. Upon the termination of the Revolving Credit
Commitments and the obligation to issue Letters of Credit and the acceleration
of the Revolving Credit Notes and the other Bank Indebtedness following the
occurrence of an Event of Default, the Lenders shall, unless such termination
and acceleration subsequently have been rescinded, have the full panoply of
rights and remedies granted to them under this Agreement and the other Loan
Documents and all those rights and remedies granted by law to creditors, and the
Agent, at the direction of the Required Lenders, shall proceed to protect and
enforce the Lenders' rights by an
-53-
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein, in the Revolving Credit
Notes or in any of the other Loan Documents, or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise of
any power granted hereby or thereby or by law. No right, power or remedy
conferred by this Agreement, in the Revolving Credit Notes, or by any other Loan
Document, upon the Agent or the Lenders shall be exclusive of any other right,
power or remedy referred to herein or therein or now or hereafter available at
law, in equity, by statute or otherwise. No exercise of any one right or remedy
shall be deemed a waiver of other rights or remedies. The rights and remedies of
the Agent and the Lenders specified herein are for the sole and exclusive
benefit, use and protection of the Agent and the Lenders, and the Agent and the
Lenders shall be entitled, but shall have no duty or obligation, to exercise or
to refrain from exercising any right or remedy reserved to the Agent or the
Lenders hereunder.
7.13 CASH COLLATERAL. Upon the occurrence of any Event of Default described
in Sections 7.3 or 7.4 or upon the declaration by the Required Lenders of any
other Event of Default and the termination of the Revolving Credit Commitments,
the obligation of the Agent to issue or amend Letters of Credit shall terminate,
and an amount equal to the maximum amount which may at any time be drawn under
the Letters of Credit then outstanding (whether or not any beneficiary of such
Letters of Credit shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under such Letters of
Credit) shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by the Borrower; provided that the foregoing shall not
affect in any way the obligations of the Lenders to purchase from the Agent
participations in the unreimbursed amount of any drawings under the Letters of
Credit issued by it as provided in Subsection 2.6d. So long as the Letters of
Credit shall remain outstanding, any amounts declared due pursuant to this
Section 7.13 with respect to the outstanding Letters of Credit when received by
the Agent shall be deposited and held by the Agent in an interest bearing
account denominated in the name of the Agent for the benefit of the Agent and
the Lenders over which the Agent shall have sole dominion and control of
withdrawals (the "Cash Collateral Account") as cash collateral for the
obligation of the Borrower to reimburse the Agent in the event of any drawing
under the Letters of Credit and upon any drawing under such Letters of Credit in
respect of which the Agent has deposited in the Cash Collateral Account any
amounts declared due pursuant to this Section 7.13, the Agent shall apply such
amounts held by the Agent to reimburse the Agent for the amount of such drawing.
In the event that any Letter of Credit in respect of which the Agent has
deposited in the Cash Collateral Account any amounts described above is
cancelled or expires or in the event of any reduction in the maximum amount
available at any time for drawing under any of the Letters of Credit
outstanding, the Agent shall apply the amount then in the Cash Collateral
Account designated to reimburse the Agent for any drawings under the Letters of
Credit issued by it less the maximum amount available at any time for drawing
under the Letters of Credit remaining outstanding immediately after such
cancellation, expiration or reduction, if any, to the payment in full of the
outstanding Bank Indebtedness, and second, to the payment of any excess, to the
Borrower.
-54-
8. AGREEMENT AMONG LENDERS.
8.1 APPOINTMENT AND GRANT OF AUTHORITY. Each of the Lenders hereby appoints
PNC Bank, National Association, and PNC Bank, National Association hereby agrees
to act as the Agent under this Agreement, the Revolving Credit Notes and the
other Loan Documents. As such Agent, PNC Bank, National Association shall have
and may exercise such powers under this Agreement and the other Loan Documents
as are specifically delegated to the Agent, by the terms hereto or thereof,
together with such other powers as are incidental thereto. Without limiting the
foregoing, the Agent, on behalf of the Lenders, is authorized to execute all of
the Loan Documents, to accept all of the Loan Documents and all other
agreements, documents or instruments reasonably required to carry out the intent
of the parties to this Agreement and to release any Guarantor from its
obligations under its Guaranty Agreement in the event of the disposition of such
Guarantor as permitted in this Agreement.
8.2 DELEGATION OF DUTIES. The Agent may perform any of its duties hereunder
by or through agents or employees (provided such delegation does not constitute
a relinquishment of duties as the Agent hereunder) and, subject to Sections 8.7
and 9.2 hereof, shall be entitled to engage and pay for the advice or services
of any attorneys, accountants, or other experts concerning all matters
pertaining to duties hereunder and to rely upon any advice so obtained.
8.3 RELIANCE BY AGENT ON LENDERS FOR FUNDING. Unless the Agent shall have
received notice from a Lender prior to any Borrowing Date that such Lender will
not make available to the Agent such Lender's portion of net disbursements of
Revolving Credit Loans, the Agent may assume that such Lender has made such
portion available to the Agent and the Agent may, in reliance upon such
assumption, make Revolving Credit Loans to the Borrower. If and to the extent
that such Lender has not made such portion available to the Agent on or prior to
any Borrowing Date, such Lender and the Borrower severally agree to repay to the
Agent immediately upon demand, in immediately available funds, such unpaid
amount, together with interest thereon for each day from the applicable
Borrowing Date until such amount is repaid to the Agent, (i) in the case of the
Borrower, at the rate of interest then in effect for such Revolving Credit Loan
and (ii) in the case of such Lender, at the Federal Funds Effective Rate. If
such Lender shall repay to the Agent such corresponding amount, such amount
shall constitute a Revolving Credit Loan made by such Lender for purposes of
this Agreement. The failure by any Lender to pay its portion of a Revolving
Credit Loan made by the Agent shall not relieve any other Lender of the
obligation to pay its portion of net disbursements of Revolving Credit Loans on
any Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make its net share of Revolving Credit Loans to be made by such
other Lender on such Borrowing Date.
8.4 NON-RELIANCE ON AGENT. Each Lender agrees that it has, independently
and without reliance on the Agent, based on such documents and information as it
has deemed appropriate, made its own credit analysis and evaluation of the
Borrower and its operations and decision to enter into this Agreement and that
it will, independently and without reliance upon the Agent, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement. Except as otherwise provided herein, the Agent shall have no duty to
keep the Lenders informed
-55-
as to the performance or observance by the Borrower of this Agreement or any
other Loan Document or to inspect the properties or books of the Borrower. The
Agent, in the absence of gross negligence or willful misconduct, shall not be
liable to any Lender for its failure to relay or furnish to the Lender any
information.
8.5 RESPONSIBILITY OF AGENT AND OTHER MATTERS.
8.5a MINISTERIAL NATURE OF DUTIES. As among the Lenders and the Agent, the
Agent shall have no duties or responsibilities except those expressly set forth
in this Agreement, the Revolving Credit Notes or in the other Loan Documents,
and those duties and responsibilities shall be subject to the limitations and
qualifications set forth in this Article VIII. The duties of the Agent shall be
ministerial and administrative in nature.
8.5b LIMITATION OF LIABILITY. As among the Lenders and the Agent, neither
the Agent nor any of its directors, officers, employees or agents shall be
liable for any action taken or omitted (whether or not such action taken or
omitted is within or without the Agent's responsibilities and duties expressly
set forth in this Agreement) under or in connection with this Agreement or any
other instrument or document in connection herewith except for gross negligence
or willful misconduct. Without limiting the foregoing, neither the Agent nor any
of its directors, officers or employees shall be responsible for, or have any
duty to examine (i) the genuineness, execution, validity, effectiveness,
enforceability, value or sufficiency of (A) this Agreement, the Revolving Credit
Notes or any of the other Loan Documents or (B) any other document or instrument
furnished pursuant to or in connection with this Agreement, (ii) the
collectibility of any amounts owed by the Borrower to the Lenders, (iii) the
truthfulness of any recitals, statements, representations or warranties made to
the Agent or the Lenders in connection with this Agreement, (iv) any failure of
any, party, to this Agreement to receive any communication sent, including any
telegram, teletype, facsimile transmission or telephone message or any writing,
application, notice, report, statement, certificate, resolution, request, order,
consent letter or other instrument or paper or communication entrusted to the
mails or to a delivery service, or (v) the assets, liabilities, financial
condition, results of operations or business, or creditworthiness of the
Borrower or any other Loan Party.
8.5c RELIANCE. The Agent shall be entitled to act, and shall be fully
protected in acting upon, any telegram, teletype, facsimile transmission or any
writing, application, notice, report, statement, certificate, resolution,
request, order, consent, letter or other instrument, paper or communication
believed by the Agent in good faith to be genuine and correct and to have been
signed or sent or made by a proper Person. The Agent may consult counsel and
shall be entitled to act, and shall be fully protected in any action taken in
good faith, in accordance with advice given by counsel. The Agent may employ
agents and attorneys-in-fact and shall not be liable for the default or
misconduct of any such agents or attorneys-in-fact selected by the Agent with
reasonable care. The Agent shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any of the other Loan Documents on the part of the Borrower or any
other party hereto or thereto.
8.6 ACTIONS IN DISCRETION OF AGENT: INSTRUCTIONS FROM THE LENDERS. The
Agent agrees, upon the written request of the Required Lenders, to take or
refrain from taking any action of the
-56-
type specified as being within the Agent's rights, powers or discretion herein
or under any Loan Documents, provided that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or applicable law. In the
absence of a request by the Required Lenders, the Agent shall have authority, in
its sole discretion, to take or not to take any such action, unless this
Agreement specifically requires the consent of the Required Lenders or all of
the Lenders. Any action taken or failure to act pursuant to such instructions or
discretion shall be binding on the Lenders, subject to Subsection 8.5b hereof.
Subject to the provisions of Subsection 8.5b, no Lender shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders.
8.7 INDEMNIFICATION. To the extent the Borrower does not reimburse and save
harmless the Agent according to the terms hereof for and from all costs,
expenses and disbursements in connection herewith, such costs, expenses and
disbursements shall be borne by the Lenders ratably in accordance with their
respective Revolving Credit Commitment. Each Lender hereby agrees on such basis
(i) to reimburse the Agent for such Lender's pro rata share of all such
reasonable costs, expenses and disbursements on request and (ii) to the extent
of each such Lender's pro rata share, to indemnify and save harmless the Agent
against and from any and all losses, obligations, penalties, actions, judgments
and suits and other costs, expenses and disbursements of any, kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Agent,
other than as a consequence of gross negligence or willful misconduct on the
part of the Agent, arising out of or in connection with (i) this Agreement, the
Revolving Credit Notes, the other Loan Documents or any other agreement,
instrument or document executed or delivered in connection herewith or
therewith, or (ii) any action taken at the request of the Required Lenders or
all of the Lenders hereunder, as the case may be, including without limitation
the reasonable costs, expenses and disbursements in connection with defending
themselves against any claim or liability, or answering any subpoena or other
process related to the exercise or performance of any of their powers or duties
under this Agreement, the other Loan Documents, or any of the other agreements,
instruments or documents executed or delivered in connection herewith or the
taking or refraining from any action under or in connection with any of the
foregoing.
8.8 AGENT'S RIGHTS AS A LENDER. With respect to the Revolving Credit
Commitment of the Agent as a Lender hereunder, and any Revolving Credit Loans of
the Agent under this Agreement, the other Loan Documents and any other
agreements, instruments and documents delivered pursuant hereto and any other
amounts due to the Agent under this Agreement, the Agent shall have the same
rights and powers, duties and obligations under this Agreement, the Revolving
Credit Notes, the other Loan Documents or other agreement, instrument or
document as any Lender and may exercise such rights and powers and shall perform
such duties and fulfill such obligations as though it were not the Agent. The
Agent and its affiliates may accept deposits from, lend money to, issue letters
of credit for the account of, and generally engage, and continue to engage, in
any kind of business with the Borrower and the other Loan Parties as if it were
not the Agent.
8.9 PAYMENT TO LENDERS. Except as otherwise set forth in Section 8.3
hereof, promptly after receipt from the Borrower of any principal repayment of
the Revolving Credit Loans, interest
-57-
due on the Revolving Credit Loans, any Fees or any other amounts owing to the
Lenders or other amounts due under any of the Loan Documents (except for such
amounts which are payable for the sole account of any Lender or the Agent), the
Agent shall distribute to each Lender that Lender's share of the funds so
received.
8.10 PRO RATA SHARING. Except as otherwise set forth in Section 8.3 hereof
(x) all interest and principal payments on the Revolving Credit Loans are to be
divided pro rata among the Lenders in proportion to the Revolving Credit Loans
outstanding from each Lender and (y) all payments of the Commitment Fee and the
Letter of Credit Fee are to be divided pro rata among the Lenders in accordance
with their respective Revolving Credit Commitment Percentages. Any sums obtained
from the Borrower by any Lender by reason of the exercise of its rights of
set-off, banker's lien or in collection shall be shared (net of costs) pro rata
among the Lenders on the basis of the principal amount of Revolving Credit Loans
outstanding. Nothing in this Section 8.10 shall be deemed to require the sharing
among the Lenders of collections specifically relating to, or of the proceeds of
any collateral securing, any other Indebtedness of the Borrower to any Lender.
8.11 SUCCESSOR AGENT.
8.11a RESIGNATION OF AGENT. The Agent may resign as Agent hereunder by giving
thirty (30) days' prior written notice to the Lenders and the Borrower. If such
notice shall be given, the Lenders shall appoint a successor agent for the
Lenders during such thirty (30) day period, which successor agent shall be
reasonably satisfactory to the Borrower, to serve as agent hereunder and under
the several Loan Documents. If at the end of such thirty (30) day period, the
Lenders have not appointed such a successor, the Agent shall use reasonable
commercial efforts to procure a successor, reasonably satisfactory to the
Lenders and the Borrower, to serve as agent for the Lenders hereunder and under
the several Loan Documents. Any such successor agent shall succeed to the
rights, powers and duties of the Agent.
8.11b RIGHTS OF THE FORMER AGENT. Upon the appointment of such successor
agent or upon the expiration of such thirty (30) day period (or any longer
period to which the Agent has agreed), the former Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or deed on
the part of such former Agent or any of the parties to this Agreement. After any
retiring Agent's resignation hereunder as Agent hereunder, the provisions of
this Article VIII shall inure to the benefit of such retiring Agent as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
8.12 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge or
notice of the occurrence of an Event of Default unless the Agent has received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Event of Default and stating that such notice is a "notice of
default."
8.13 NOTICES. The Agent shall send to each Lender a copy of all notices
received from any Loan Party pursuant to the provisions of this Agreement or the
other Loan Documents promptly upon receipt thereof. The Agent shall promptly
notify the Borrower and the other Lenders of each change in the Base Rate and
the effective date thereof.
-58-
8.14 HOLDERS OF REVOLVING CREDIT NOTES. The Agent may deem and treat any
payee of any Revolving Credit Note as the owner thereof for all purposes hereof
unless and until written notice of the assignment or transfer thereof shall have
been recorded in the Register as contemplated by Section 9.6. Any request,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any Revolving Credit Note
shall be conclusive and binding on any subsequent holder, transferee or assignee
of such Revolving Credit Note or of any Revolving Credit Note or Revolving
Credit Notes issued in exchange therefor.
8.15 CALCULATIONS. In the absence of gross negligence or willful misconduct,
the Agent shall not be liable for any error in computing the amount payable to
any Lender whether in respect of the Revolving Credit Loans, Fees or any other
amounts due to the Lenders under this Agreement or any other Loan Documents. In
the event an error in computing any amount payable to any Lender is made, the
Agent, the Borrower and each affected Person shall, forthwith upon discovery of
such error, make such adjustments as shall be required to correct such error,
and any compensation therefor will be calculated at the Federal Funds Effective
Rate.
8.16 BENEFICIARIES. Except as expressly provided herein and in Sections 8.1,
8.3, 8.6, 8.1la, 8.14 and 8.15, the provisions of this Article VIII are solely
for the benefit of the Agent and the Lenders, and the Borrower shall not have
any rights to rely on or enforce any of the provisions hereof. In performing its
functions and duties under this Agreement, the Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for the Borrower.
9. GENERAL PROVISIONS
9.1 AMENDMENTS AND WAIVERS. Subject to the remaining provisions of this
Section 9.1, the Agent, the Lenders, the Guarantors and the Borrower may, from
time to time, enter into amendments, extensions, renewals, modifications,
supplements and replacements to and of this Agreement, the Revolving Credit
Notes or the other Loan Documents and the Lenders or the Required Lenders, as
the case may be, may, from time to time, waive compliance with a provision
thereof. No amendment, extension, renewal, modification, supplement,
replacement, waiver or consent of any provision of the Agreement, the Revolving
Credit Notes or the other Loan Documents or consent to any departure therefrom
by the Borrower or any Guarantor shall be effective unless it is in writing and
is signed by the Required Lenders (or the Agent with the written consent of the
Required Lenders), and then such waiver or consent shall be effective only for
the specific instance and for the specific purpose for which it is given;
provided, however, that no amendment, extension, renewal, modification,
supplement, replacement, waiver or consent, unless in writing and signed by all
of the Lenders (or the Agent with the written consent of all of the Lenders),
shall do any of the following:
(A) increase the Revolving Credit Commitment of any
Lender or subject any Lender to any additional obligations hereunder;
(B) except for changes permitted by Sections 2.7 or 2.10
hereof or changes made pursuant to an Assignment and Assumption
Agreement, change any
-59-
Lender's Revolving Credit Commitment Percentage or the aggregate or
individual unpaid principal amount of any Lender's Revolving Credit
Note, or forgive the payment of the principal or interest payable on
any Lender's Revolving Credit Note;
(C) waive an Event of Default in the payment of principal
and/or interest due hereunder and under any of the Revolving Credit
Notes;
(D) decrease the interest rate relating to the Revolving
Credit Loans;
(E) postpone any date fixed for any payment of principal
of or interest on the Revolving Credit Loans, the Commitment Fee, the
Letter of Credit Fee, or any other obligations of the Borrower set
forth in Article II;
(F) reduce the Commitment Fee or the Letter of Credit
Fee; or
(G) amend the definition of the term "Required Lenders"
or amend or waive the provisions of this Section 9.1.
Any such amendment, extension, renewal, modification, supplement, replacement,
waiver or consent shall apply equally to the Borrower and each of the Lenders
and shall be binding upon the Borrower, the Lenders, the Agent and all future
holders of the Revolving Credit Notes. In the case of any waiver, the Borrower,
the Lenders and the Agent shall be restored to their former positions and
rights, and any Event of Default waived shall be deemed to be cured and not
continuing, but no such waiver shall extend to any subsequent or other Event of
Default, or impair any right consequent thereon.
9.2 EXPENSES. The Borrower shall pay:
(i) All reasonable costs and expenses of the Agent
(including without limitation the reasonable fees and disbursements of
the Agent's special counsel, Xxxxxxxx Xxxxxxxxx Professional
Corporation, incurred in connection with the preparation, negotiation,
execution and delivery of this Agreement and the other Loan Documents
and any and all other documents and instruments prepared in connection
herewith, including but not limited to all amendments, extensions,
modifications, replacements, waivers, consents and other documents and
instruments prepared or entered into from time to time; and
(ii) All reasonable costs and expenses of the Agent and
the Lenders (including without limitation the reasonable fees and
disbursements of the Agent's and the Lenders' counsels, which may be in
house counsel) in connection with (A) the enforcement of this Agreement
and the other Loan Documents arising pursuant to a breach by any Loan
Party of any of the terms, conditions, representations, warranties or
covenants of any Loan Document to which it is a party (including
without limitation the reasonable fees and expenses of any workout
counsel for the Agent and the Lenders), and (B) defending or
prosecuting any actions, suits or proceedings relating to any of the
Loan Documents.
-60-
All of such costs and expenses shall be payable by the Borrower to the Lenders
or the Agent, as the case may be, upon demand or as otherwise agreed upon by the
Lenders or the Agent and the Borrower, and shall constitute Bank Indebtedness
under this Agreement. The Borrower further agrees to pay and save the Agent and
the Lenders harmless from any and all liability for, any stamp or other taxes
which may be payable with respect to the execution or delivery of this Agreement
or the issuance of the Revolving Credit Notes or of any Letters of Credit. The
Borrower's obligation to pay such costs and expenses shall survive the
termination of this Agreement and the repayment of the Bank Indebtedness.
9.3 NOTICES. Any notice, request, demand, direction or other communication
(for purposes of this Section 9.3 only, a "Notice") to be given to or made upon
any party hereto or any other Loan Document under any provision of this
Agreement or any other Loan Document shall be given or made by telephone or in
writing (which includes by means of electronic transmission (i.e., "e-mail") or
facsimile transmission or by setting forth such Notice on site the World Wide
Web (a "Website Posting") if Notice of such Website Posting (including the
information necessary to access such site) has previously been delivered to the
applicable parties hereto by another means set forth in this Section 9.3) in
accordance with this Section 9.3. Any such Notice must be delivered to the
applicable parties hereto at the addresses and numbers set forth below or in
accordance with any subsequent unrevoked Notice from any such party that is
given in accordance with this Section 9.3. Any Notice shall be effective:
(i) In the case of hand-delivery, when delivered;
(ii) If given by mail, four days after such Notice is
deposited with the United States Postal Service, certified or
registered mail postage prepaid, return receipt requested;
(iii) In the case of a telephonic Notice, when a party is
contacted by telephone, if delivery of such telephonic Notice is
confirmed no later than the next Business Day by hand-delivery a
facsimile or electronic transmission, a Website Posting or an overnight
courier delivery of a confirmatory Notice (received before the close of
business on such next Business Day);
(iv) In the case of a facsimile transmission, when sent to
the applicable party's facsimile machine's telephone number, if the
party sending such Notice receives confirmation of the delivery thereof
from its own facsimile machine;
(v) In the case of electronic transmission, when actually
received;
(vi) In the case of a Website Posting, upon delivery of a
Notice of such posting (including the information necessary to access
such site) by another means set forth in this Section 9.3; and
(vii) If given by any other means (including by overnight
courier), when actually received.
-61-
Any Lender giving a Notice to the Borrower shall concurrently send a copy
thereof to the Agent, and the Agent shall promptly notify the other Lenders of
its receipt of such Notice.
9.3a NOTICE TO THE BORROWER.
NRP (Operating) LLC
000 Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
0000 Xxxxx Xxxxxx
Xxxxx 000
P.O. Box 2827
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
9.3b NOTICE TO THE AGENT.
PNC Bank, National Association
Agency Services
One PNC Plaza - 22nd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
PNC Bank, National Association
Energy, Metals and Mining Group
One PNC Plaza, 3rd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-62-
9.3c NOTICE TO THE LENDERS. All notices required to be delivered to the
Lenders pursuant to this Agreement shall be sent to the addresses set forth on
the signature pages of the Agreement or such Lender's signature page to the
Assignment and Assumption Agreement executed by it as a Purchasing Lender.
9.4 TAX WITHHOLDING. Each Lender or assignee or Participant of a Lender
that is not incorporated under the laws of the United States of America or a
state thereof (and, upon the written request of the Agent, each other Lender or
assignee or Participant or a Lender) agrees that it will deliver to each of the
Borrower and the Agent two (2) duly completed appropriate valid Withholding
Certificates (as defined under Section 1.1441-1 (c)(16) of the Income Tax
Regulations (the "Regulations")) certifying its status (i.e., United States or
foreign person) and, if appropriate, making a claim of reduced, or exemption
from, United States withholding tax on the basis of an income tax treaty or an
exemption provided by the Internal Revenue Code (the "Code"). Such delivery may
be made by electronic transmission as described in Section 1.1441- 1 (e)(4)(iv)
of the Regulations if the Agent establishes an electronic delivery system. The
term "Withholding Certificate" means a Form W-9, a Form W-8BEN, a Form W-8ECI, a
Form W- 8IMY and the related statements and certifications as required under
Section 1.1441-1(e)(3) of the Regulations, a statement described in Section
1.871-14(c)(2)(v) of the Regulations, or any other certificates under the Code
or Regulations that certify or establish the status of a payee or beneficial
owner as a United States or foreign person. Each Lender, assignee or Participant
required to deliver to the Borrower and the Agent a valid Withholding
Certificate pursuant to the preceding sentence shall deliver such valid
Withholding Certificate as follows; (A) each Lender which is a party hereto on
the Closing Date shall deliver such valid Withholding Certificate at least five
(5) Business Days prior to the first date on which any interest or Fees are
payable by the Borrower hereunder for the account of such Lender; (B) each
assignee or Participant shall deliver such valid Withholding Certificate at
least five (5) Business Days before the effective date of such assignment or
Participation (unless the Agent in its sole discretion shall permit such
assignee or Participant to deliver such Withholding Certificate less than five
(5) Business Days before such date in which case it shall be due on the date
specified by the Agent). Each Lender, assignee or Participant which so delivers
a valid Withholding Certificate further undertakes to deliver to each of the
Borrower and the Agent two (2) additional copies of such Withholding Certificate
(or a successor form) on or before the date that such Withholding Certificate
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent Withholding Certificate so delivered by it, and such
amendments thereto or tensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent. Notwithstanding the submission of a
Withholding Certificate claiming a reduced rate of, or exemption from United
States withholding taxes, the Agent shall be entitled to withhold United States
federal income taxes at the full 30% withholding rate if in its reasonable
judgment it is required to do so under the due diligence requirements imposed
upon a withholding agent under Section 1.1441-7(b) of the Regulations. Further,
the Agent is indemnified under Section 1.1461-1(e) of the Regulations against
any claims and demands of any Lender or assignee or Participant of a Lender for
the amount of any tax it deducts and withholds in accordance with regulations
under Section 1441 of the Internal Revenue Code.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Borrower, the Agent and the Lenders and their respective successors and assigns,
and shall inure to the benefit of the
-63-
Borrower, the Agent and the Lender and the successors and assigns of the Agent
and the Lender, provided, that the Borrower shall not assign its rights or
duties hereunder or under any of the other Loan Documents without the prior
written consent of the Lenders.
9.6 ASSIGNMENTS AND PARTICIPATIONS.
9.6a ASSIGNMENTS. Subject to the remaining provisions of this Subsection
9.6a, any Lender (a "Transferor Lender"), at any time, in the ordinary course of
its commercial banking business and in accordance with applicable law, may sell
to one or more financial institutions (individually a "Purchasing Lender")
portion or all of its rights and obligations under this Agreement and the
Revolving Credit Notes then held by it, pursuant to an Assignment and Assumption
Agreement substantially in the form of Exhibit "F" executed by the Transferor
Lender, such Purchasing Lender, the Borrower and the Agent; subject, however to
the following requirements:
(i) Each such assignment must be in a minimum amount of
$5,000,000, or, in excess thereof, in integral multiples of $1,000,000,
unless such Lender's Revolving Credit Commitment is less than
$5,000,000, in which case such assignment shall be in the full amount
of such Lender's Revolving Credit Commitment:
(ii) During the first ninety (90) days following the
Closing Date, each assignment made shall become effective only on a
date which coincides with the expiration date of any Interest Period
then in effect, unless the Agent agrees to waive this provision:
(iii) The Agent and the Borrower must each give its prior
consent to any such assignment which consent shall not be unreasonably
withheld; it being agreed that it shall not be deemed unreasonable for
the Borrower to decline to consent to such assignment if (A) such
assignment would result in incurrence of additional costs to the
Borrower under Article II, or (B) the proposed assignee has not
provided to the Borrower any tax forms required under Section 9.4,
provided, however, no consent is required for the transfer by a Lender
to its Affiliate or to another Lender so long as the conditions in
clauses (A) and (B) immediately above are satisfied; and
(iv) The Transferor Lender shall pay to the Agent a $3,500
service fee for each such transfer at the time of each such transfer;
provided, however the restrictions set forth in item (i) above shall not apply
(x) in the case of an assignment by a Lender to an Affiliate of such Lender or
(y) in the case of any assignment by any Transferor Lender upon the occurrence
and during the continuation of an Event of Default; and provided further, that
upon the occurrence and during the continuance of an Event of Default the
consent of the Borrower to any assignment is not required.
Upon the execution, delivery, acceptance and recording of any such Assignment
and Assumption Agreement, from and after the Transfer Effective Date determined
pursuant to such Assignment and Assumption Agreement, all parties hereto agree
that (a) the Purchasing Lender thereunder shall be a party hereto as a Lender
and, to the extent provided in such Assignment and Assumption Agreement, shall
have the rights and obligations of a Lender hereunder with the
-64-
Revolving Credit Commitments as set forth therein, and (b) the Transferor Lender
thereunder shall, to the extent provided in such Assignment and Assumption
Agreement, be released from its obligations as a Lender under this Agreement.
Such Assignment and Assumption Agreement shall be deemed to amend this Agreement
(without further action) to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender as a Lender and the resulting
adjustment of Revolving Credit Commitment Percentages arising from the purchase
by such Purchasing Lender of all or a portion of the rights and obligations of
such Transferor Lender under this Agreement and its Revolving Credit Notes. On
or prior to the Transfer Effective Date, the Borrower shall execute and deliver
to the Agent, in exchange for the surrendered Revolving Credit Notes held by the
Transferor Lender, new Revolving Credit Notes to the order of such Purchasing
Lender in amounts equal to the Revolving Credit Commitment or the Revolving
Credit Loans assumed by it and purchased by it pursuant to such Assignment and
Assumption Agreement, and new Revolving Credit Notes to the order of the
Transferor Lender in amounts equal to the Revolving Credit Commitment or the
Revolving Credit Loans retained by it hereunder, in each case dated as of the
date of the last payment in full of interest on the surrendered Revolving Credit
Notes.
In addition to the assignments permitted above, any Lender may assign and pledge
all or any portion of its Revolving Credit Loans and Revolving Credit Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations and duties hereunder.
9.6b ASSIGNMENT REGISTER. The Agent shall maintain, at its address referred
to in Subsection 9.3b, a copy of each Assignment and Assumption Agreement
delivered to it and a register (the "Register") for the recordation of the name,
address and Revolving Credit Commitment of each Lender and the amount of the
Revolving Credit Loans owing to each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as the owner of the Revolving Credit Notes and the Revolving
Credit Loans and the holder of the Revolving Credit Commitment recorded therein
for all purposes of this Agreement and the other Loan Documents. The Register
shall be available at the office of the Agent set forth in Subsection 9.3b for
inspection by either Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
9.6c PARTICIPATIONs. Each Lender, in the ordinary course of its commercial
banking business and in accordance with applicable law, may sell to one or more
Participants a participating interest in any Revolving Credit Loan or Letter of
Credit owing to such Lender, the interest of such Lender in any Revolving Credit
Note, Letter of Credit or the Revolving Credit Commitment of such Lender. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of its
Revolving Credit Notes for all purposes under this Agreement and the Borrower,
the other Lenders and the Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement or its Revolving Credit Notes and the Participants shall have
-65-
voting rights only with respect to matters described in clauses (B), (D), (E)
and (F) of Section 9.1, but only with respect to the Revolving Credit Loans and
Revolving Credit Commitments in which such Participant participates.
9.6d PROVISIONS FOR SPECIAL PURPOSE FUNDING VEHICLES. Notwithstanding
anything to the contrary contained herein, any Lender (a "Granting Lender") may
grant to a special purpose funding vehicle (an "SPC") of such Granting Lender,
identified as such in writing from time to time by the Granting Lender to the
Agent and the Borrower, the option to provide to the Borrower all or any part of
any Revolving Credit Loan that such Granting Lender would otherwise be obligated
to make to the Borrowers; provided that (i) nothing herein shall constitute a
commitment to make any Revolving Credit Loan by such SPC and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Revolving Credit Loan, the Granting Lender shall be obligated to make
such Revolving Credit Loan pursuant to the terms hereof. The making of a
Revolving Credit Loan by an SPC hereunder shall utilize the relevant Revolving
Credit Commitment of the Granting Lender to the same extent, and as if, such
Revolving Credit Loan were made by the Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any payment under this Agreement for
which a Lender would otherwise be liable, for so long as, and to the extent, the
related Granting Lender makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees that, prior to the date that is one year and one
day after the later of (i) the payment in full of all outstanding senior
indebtedness of such SPC and (ii) the Termination Date, it will not institute
against, or join any other person in instituting against such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof.
In addition, notwithstanding anything to the contrary contained in this
Subsection 9.6d, such SPC may (i) with prior written consent of the Borrower and
the Agent (such consent not to be unreasonably withheld) and without paying any
processing fee therefor, assign all or a portion of its interests in any
Revolving Credit Loans to its Granting Lender or to any financial institutions
providing liquidity and or credit facilities to or for the account of such SPC
to fund the Revolving Credit Loans made by such SPC or to support the securities
(if any) issued by such SPC to fund such Revolving Credit Loans and (ii)
disclose on a confidential basis consistent with Section 9.19 any non-public
information relating to its Revolving Credit Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or credit or
liquidity enhancement to such SPC. In no event shall the Borrower be obligated
to pay an SPC that has made a Revolving Credit Loan in a greater amount than the
Borrower would have been obligated to pay under this Agreement if the Granting
Lender had made such Revolving Credit Loan. Each Granting Lender shall indemnify
and hold harmless the Borrower and its directors, officers, employees and agents
from and against any and all losses, liabilities, claims, damages and expenses
arising from or attributable to the making of a Revolving Credit Loan by an SPC
of such Granting Lender.
9.7 SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
-66-
9.8 SURVIVAL. All representations, warranties, covenants and agreements of
the Borrower contained herein, in the Revolving Credit Notes or in the other
Loan Documents or made in writing in connection herewith or therewith shall
survive the issuance of the Revolving Credit Notes and the Letters of Credit and
shall continue in full force and effect so long as the Borrower may borrow
hereunder and so long thereafter until payment in full of all the Revolving
Credit Notes and the Bank Indebtedness. Notwithstanding the terms of the
foregoing sentence, the representations, warranties, covenants, agreements and
indemnities set forth in Sections 2.6i, 4.13, 8.7, 9.4, 9.16 and 9.18 shall
survive the termination of the Revolving Credit Commitments hereunder and the
payment in full of the Revolving Credit Notes and the Bank Indebtedness.
9.9 GOVERNING LAW. This Agreement, each Revolving Credit Note and each
other Loan Document shall be a contract made under, governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without reference
to the provision thereof regarding conflicts of law except where such law is
superseded by applicable Federal law.
9.10 NON-BUSINESS DAYS. Except as otherwise specifically required pursuant
to the terms of this Agreement, whenever any payment hereunder or under the
Revolving Credit Notes is due and payable on a day which is not a Business Day,
such payment may be made on the next succeeding Business Day.
9.11 INTEGRATION. This Agreement constitutes the entire agreement between
the parties relating to this financing transaction and it supersedes all prior
understandings and agreements, whether written or oral, between the parties
hereto concerning the subject matter of this Agreement.
9.12 HEADINGS, ETC.. Article, Section and other headings and Section and
Subsection references used in this Agreement are intended for convenience only
and shall not, and are not intended to, in any way or manner affect the meaning
or construction of this Agreement.
9.13 SET-OFF. The Borrower hereby grants to the Lenders a lien and security
interest for the amount of any Bank Indebtedness upon and in any property,
credits, securities or money of the Borrower which may at any time be delivered
to, or be in the possession of, or owed by any Lender in any capacity whatever,
including the balance of any deposit account but excluding any trust or
fiduciary accounts, in each case maintained by the Borrower with such Lender.
The Borrower hereby authorizes each Lender in case of an Event of Default, at
such Lender's option, at any time and from time to time, to apply, at the
discretion of such Lender, to the payment of Bank Indebtedness, any and all such
property, credits, securities or money now or hereafter in the hands of such
Lender belonging or owed to the Borrower. Nothing herein shall restrict any
Lender's ability to set off any property, credits, securities or money of the
Borrower which may at any time be delivered to, or be in possession or owed to
any Lender in any capacity whatever to satisfy an independent obligation of the
Borrower to the Lender.
9.14 CONSENT TO FORUM. The parties hereto each hereby irrevocably consents
to the exclusive jurisdiction of the Court of Common Pleas of Allegheny County,
Pennsylvania, or in the District Court of the United States for the Western
District of Pennsylvania in any action or proceeding arising out of or relating
to this Agreement, the Revolving Credit Notes or the other Loan
-67-
Documents, and each party, agrees that a summons and complaint commencing an
action or proceeding in either of such courts shall be properly served and shall
confer personal jurisdiction if served personally or by certified mail to the
party, at its respective address set forth in Section 9.3, or as otherwise
provided under the laws of the Commonwealth of Pennsylvania. Further, the
parties hereby specifically waive and hereby acknowledge that the parties are
estopped from raising any claim that any such court lacks personal jurisdiction
over such party so as to prohibit either such court from adjudicating any issues
raised in a complaint filed with any such court against the Borrower or the
Lenders concerning this Agreement, the Revolving Credit Notes or the other Loan
Documents.
9.15 WAIVER OF JURY TRIAL. Each of the Agent, the Lenders and the Borrower
hereby knowingly, voluntarily and intentionally waive any rights they may have
to a trial by jury in respect of any litigation based hereon, or arising out of,
under, or in connection with, this Agreement or any other Loan Document, or any
course of conduct, course of dealing, statements (whether verbal or written) or
actions of the Agent, the Lenders or the Borrower relating hereto or thereto.
The Borrower acknowledges and agrees that it has received full and sufficient
consideration for this provision (and each other provision of each other Loan
Document to which it is a party) and that this provision is a material
inducement for the Lenders to enter into this Agreement and each such other Loan
Document.
9.16 INDEMNITY. The Borrower hereby agrees to indemnify the Agent, the
Lenders and each of their respective directors, officers, employees, attorneys,
agents and Affiliates against, and hold each of them harmless from, any loss,
liabilities, damages, claims, and reasonable costs and expenses, joint or
several (including reasonable attorneys' fees and disbursements reasonably
incurred by any such Person in connection with the preparation for or defense of
any pending or threatened claim, action or proceeding) suffered or incurred by
any of them under any applicable federal or state law or otherwise caused by,
arising out of, resulting from or in any manner connected with the execution,
delivery and performance of each of the Loan Documents, the Revolving Credit
Loans and any and all transactions related to or consummated in connection with
the Revolving Credit Loans. The indemnity set forth in this Section 9.16 shall
be in addition to any other obligations or liabilities of the Borrower to the
Agents or the Lenders, or at common law or otherwise. The provisions of this
Section 9.16 shall survive the payment of the Bank Indebtedness and the
termination of this Agreement. The foregoing provisions of this Section 9.16 to
the contrary notwithstanding, the Borrower shall not be obligated to indemnify
the Agent or any Lender pursuant to this Section 9.16 for (i) any losses,
liabilities, damages, claims or costs suffered or incurred by any of them in
connection with the administrative transfer of funds in connection with this
Agreement and which arise directly from the Agent's or such Lender's negligence
or willful misconduct, or (ii) any other losses, liabilities, damages, claims,
or costs which arise directly from the Agent's, or such Lender's gross
negligence or willful misconduct. All amounts owed pursuant to this Section 9.16
shall be part of the Bank Indebtedness.
9.17 COUNTERPARTS. This Agreement and any amendment, modification, extension
or renewal hereto or hereof may be executed in several counterparts and by each
party on a separate counterpart, each of which, when so executed and delivered,
shall be an original, but all of which together shall constitute but one and the
same instrument. In proving this Agreement or any
-68-
amendment, modification, extension or renewal, it shall not be necessary to
produce or account for more than one such counterpart signed by the other party
against whom enforcement is sought.
9.18 LIMITATION ON RECOURSE TO GENERAL PARTNER. Except as set forth below,
the Agent and the Lenders shall not look to the General Partner for the payment
of the Bank Indebtedness and the performance of the Borrower's (or the Parent's)
other obligations hereunder and under the other Loan Documents; provided,
however, that the Agent and the Lenders shall have the right to look to the
General Partner on a joint and several basis for, and the General Partner on a
joint and several basis shall indemnify, and hold harmless, the Agent and the
Lenders from, any loss, damage, liability, claim, cost or expense (including
reasonable attorneys' fees) which the Agent or any Lender may incur as a result
of and to the extent caused by (i) any representation or warranty made by the
Parent, the Borrower, any Guarantor or the General Partner herein or in any
other Loan Document or in any, certificate, schedule, statement, report, notice
or other writing furnished or made to the Agent or the Lenders in connection
with the transactions contemplated by this Agreement is untrue in any material
respect, or (ii) any assets, rights, rents, profits, issues, income or other
properties or revenues of the Parent, the Borrower or any of its Subsidiaries
are misappropriated by the General Partner and the Agent or any Lender sustains
a loss therefrom.
9.19 CONFIDENTIALITY. Each of the Agent and each Lender agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section by any Person or (ii) becomes
available to the Agent or any Lender on a nonconfidential basis from a source
other than Borrower or any of its Subsidiaries. For the purposes of this
Section, "Information" means all information received from Borrower or its
Subsidiaries relating to Borrower and its Subsidiaries or their business, other
than any such information that is available to the Agent or any Lender on a
nonconfidential basis prior to disclosure by Borrower or any of its
Subsidiaries; provided that, in the case of information received from Borrower
after the date of this Agreement, such information is clearly identified at the
time of delivery as confidential. Any, Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
-69-
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-70-
[SIGNATURE PAGE 1 OF 6 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have caused this Credit Agreement by and among NRP (OPERATING) LLC,
THE LENDERS PARTY HERETO, PNC BANK, NATIONAL ASSOCIATION, as the Administrative
Agent, BRANCH BANKING AND TRUST COMPANY, as Syndication Agent and BANK OF
MONTREAL and BNP PARIBAS, as Documentation Agents, to be executed by their
respective duly authorized officer as of the date first written above.
NRP (OPERATING) LLC, a Delaware limited
liability company
By: (SEAL)
--------------------------------
Name:
------------------------------------
Title:
------------------------------------
[SIGNATURE PAGE 2 OF 6 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have caused this Credit Agreement by and among NRP (OPERATING) LLC,
THE LENDERS PARTY HERETO, PNC BANK, NATIONAL ASSOCIATION, as the Administrative
Agent, BRANCH BANKING AND TRUST COMPANY, as Syndication Agent and BANK OF
MONTREAL and BNP PARIBAS, as Documentation Agents, to be executed by their
respective duly authorized officer as of the date first written above.
PNC BANK, NATIONAL ASSOCIATION,
Revolving Credit Commitment: individually and as Administrative Agent
$21,250,000
Revolving Credit Commitment By:
---------------------------------------
21.25% Name:
-------------------------------------
Title:
------------------------------------
Addresses for notice purposes:
PNC Bank, National Association
Agency Services
One PNC Plaza - 22nd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
PNC Bank, National Association
Energy Metals and Mining Group
Xxx XXX Xxxxx - 0xx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx Xxxxxxx,
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for Euro-Rate Loan Funding if different from above:
N/A
--------------------------------------------
--------------------------------------------
--------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
[SIGNATURE PAGE 3 OF 6 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have caused this Credit Agreement by and among NRP (OPERATING) LLC,
THE LENDERS PARTY HERETO, PNC BANK, NATIONAL ASSOCIATION, as the Administrative
Agent, BRANCH BANKING AND TRUST COMPANY, as Syndication Agent and BANK OF
MONTREAL and BNP PARIBAS, as Documentation Agents, to be executed by their
respective duly authorized officer as of the date first written above.
BRANCH BANKING AND TRUST COMPANY
Revolving Credit Commitment: COMPANY, individually and as Syndication
$21,250,000 Agent
Revolving Credit Commitment By:
----------------------------------------
21.25% Name:
--------------------------------------
Title:
-------------------------------------
Addresses for notice purposes:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Attention:
---------------------------
Telephone:
---------------------------
Telecopier:
---------------------------
With a copy to:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Attention:
---------------------------
Telephone:
---------------------------
Telecopier:
---------------------------
Address for Euro-Rate Loan Funding if different from above:
N/A
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
[SIGNATURE PAGE 4 OF 6 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have caused this Credit Agreement by and among NRP (OPERATING) LLC,
THE LENDERS PARTY HERETO, PNC BANK, NATIONAL ASSOCIATION, as the Administrative
Agent, BRANCH BANKING AND TRUST COMPANY, as Syndication Agent and BANK OF
MONTREAL and BNP PARIBAS, as Documentation Agents, to be executed by their
respective duly authorized officer as of the date first written above.
BANK OF MONTREAL, individually and as
Revolving Credit Commitment: Documentation Agent
$21,250,000
Revolving Credit Commitment By:
------------------------------------------
21.25% Name:
----------------------------------------
Title:
---------------------------------------
Addresses for notice purposes:
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Attention:
-----------------------------
Telephone:
-----------------------------
Telecopier:
-----------------------------
With a copy to:
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Attention:
-----------------------------
Telephone:
-----------------------------
Telecopier:
-----------------------------
Address for Euro-Rate Loan Funding if different from above:
N/A
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
[SIGNATURE PAGE 5 OF 6 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have caused this Credit Agreement by and among NRP (OPERATING) LLC,
THE LENDERS PARTY HERETO, PNC BANK, NATIONAL ASSOCIATION, as the Administrative
Agent, BRANCH BANKING AND TRUST COMPANY, as Syndication Agent and BANK OF
MONTREAL and BNP PARIBAS, as Documentation Agents, to be executed by their
respective duly authorized officer as of the date first written above.
BNP PARIBAS, individually and as
Revolving Credit Commitment: Documentation Agent
$21,250,000
Revolving Credit Commitment By:
----------------------------------------
21.25% Name:
--------------------------------------
Title:
-------------------------------------
Addresses for notice purposes:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Attention:
---------------------------
Telephone:
---------------------------
Telecopier:
---------------------------
With a copy to:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Attention:
---------------------------
Telephone:
---------------------------
Telecopier:
---------------------------
Address for Euro-Rate Loan Funding if different from above:
N/A
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
[SIGNATURE PAGE 6 OF 6 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have caused this Credit Agreement by and among NRP (OPERATING) LLC,
THE LENDERS PARTY HERETO, PNC BANK, NATIONAL ASSOCIATION, as the Administrative
Agent, BRANCH BANKING AND TRUST COMPANY, as Syndication Agent and BANK OF
MONTREAL and BNP PARIBAS, as Documentation Agents, to be executed by their
respective duly authorized officer as of the date first written above.
Revolving Credit Commitment: HUNTINGTON BANK
$15,000,000
Revolving Credit Commitment By:
----------------------------------------
15% Name:
--------------------------------------
Title:
-------------------------------------
Addresses for notice purposes:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Attention:
---------------------------
Telephone:
---------------------------
Telecopier:
---------------------------
With a copy to:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Attention:
---------------------------
Telephone:
---------------------------
Telecopier:
---------------------------
Address for Euro-Rate Loan Funding if different from above:
N/A
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
Telephone:
----------------------------------
Telecopier:
---------------------------------
Telex:
--------------------------------------
