CONFORMED COPY
AMENDMENT #2
AMENDMENT dated as of May 15, 1996 among THE PITTSTON COMPANY,
a Virginia corporation (the "Borrower"), the financial institutions listed on
the signature pages hereto, CHEMICAL BANK, CREDIT SUISSE and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as agents for the financial institutions from time to
time party to the Agreement hereafter referred to (in such capacity, the "Co-
Agents"), and CREDIT SUISSE, as administrative agent (in such capacity, the
"Administrative Agent"), to the CREDIT AGREEMENT dated as of March 4, 1994 among
the Borrower, the financial institutions which are parties to the Agreement
hereafter referred to (each a "Lender" and collectively, the "Lenders"), the
Co-Agents and the Administrative Agent (as amended by an amendment dated as of
May 1, 1995, the "Agreement").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Agreement (i)
to extend the scheduled maturity date of the Loans, (ii) to extend the period
during which Borrower may borrow Revolving Loans pursuant to the Agreement,
(iii) reduce the margins applicable to certain interest rates on certain Loans,
(iv) reflect the addition of certain financial institutions as lenders under the
Agreement and the elimination of certain others, and (v) in certain other
respects;
WHEREAS, subject to the terms and conditions stated below, the
Lenders and those financial institutions who are to become Lenders pursuant
hereto are amenable to such amendments;
NOW, THEREFORE, it is agreed:
1. Definitions. (a) All the terms used herein which are
defined in the Agreement (including, to the extent any such terms are to be
amended by this Amendment, as if such terms were already amended by this
Amendment unless the context shall indicate otherwise) shall have the same
meanings when used herein unless otherwise defined herein. All references to
Sections in this Amendment shall be deemed references to Sections in the
Agreement unless otherwise specified.
(b) As used in this Amendment, the following terms have the
following meanings:
"Amendment Effective Date" shall mean the date when this
Amendment becomes effective in accordance with Section 10 hereof.
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"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Fleet" shall mean Fleet National Bank, N.A.
"FNBB" shall mean Bank of Boston Connecticut.
"New Lender" shall mean a financial institution listed on New
Schedule 2.01 but not on Old Schedule 2.01.
"New Schedule 2.01" shall mean the Schedule 2.01 attached to
this Amendment.
"Old Lender" shall mean Chase and National Westminster Bank
plc, financial institutions that were Lenders immediately prior to the
effectiveness of this Amendment but which are not listed on New Schedule 2.01.
"Old Schedule 2.01" shall mean the Schedule 2.01 as in effect
immediately prior to the effectiveness of this Amendment.
"Sanwa" shall mean The Sanwa Bank Limited.
2. Effect of Amendment. As used in the Agreement (including
all exhibits and attachments thereto), the Notes and all instruments and
documents executed in connection with any of the foregoing, on and subsequent to
the date on which this Amendment becomes effective, any reference to the
Agreement shall mean the Agreement as amended hereby.
3. Commitment Fee. The chart that is in the definition of
"Applicable Commitment Fee Rate" in Section 1.01 of the Agreement is hereby
amended to read in its entirety as follows:
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
------- ------- ------- ------- -------
Senior LT Senior LT Senior LT Senior LT Senior LT
Rating: Rating: Rating: Rating: Rating:
BBB+/Baa1 BBB/Baa2 BBB-/Baa3 BB+/Ba1 Below
or Better BB+/Ba1
------------ ------------ ------------ ------------ -------
Subordinated Subordinated Subordinated Subordinated Subordinated
LT Rating: LT Rating: LT Rating: LT Rating: LT Rating:
BBB/Baa2 BBB-/Baa3 BB+/Ba2 BB-/Ba3 Below
or Better BB-/Ba3
Commitment .100 .125 .150 .250 .375
Fee Rate
=================== =================== ==================== =================== =================== ===================
4. Applicable Margin. The chart that is in the definition of
"Applicable Margin" in Section 1.01 of the Agreement is hereby amended to read
in its entirety as follows:
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Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
------- ------- ------- ------- -------
Senior LT Senior LT Senior LT Senior LT Senior LT
Rating: Rating: Rating: Rating: Rating:
BBB+/Baa1 BBB/Baa2 BBB-/Baa3 BB+/Ba1 Below
or Better BB+/Ba1
------------ ------------ ------------ ------------ -------
Subordinated Subordinated Subordinated Subordinated Subordinated
LT Rating: LT Rating: LT Rating: LT Rating: LT Rating:
BBB/Baa2 BBB-/Baa3 BB+/Ba2 BB-/Ba3 Below
or Better BB-/Ba3
Eurodollar
Revolving Margin .32500 .37500 .42500 .62500 .87500
CD Revolving
Margin .45000 .50000 .55000 .75000 1.0000
Base Rate
Revolving Margin .00000 .00000 .00000 .00000 .00000
Eurodollar Term
Margin .32500 .37500 .42500 .75000 1.1250
CD Term Margin .45000 .50000 .55000 .87500 1.2500
Base Rate Term
Margin .00000 .00000 .00000 .00000 .00000
======================== =================== =================== =================== =================== ===================
5. Utilization Fee. The chart that is in the definition of
"Applicable Utilization Rate" in Section 1.01 of the Agreement is hereby amended
to read in its entirety as follows:
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
------- ------- ------- ------- -------
Senior LT Senior LT Senior LT Senior LT Senior LT
Rating: Rating: Rating: Rating: Rating:
BBB+/Baa1 BBB/Baa2 BBB-/Baa3 BB+/Ba1 Below
or Better BB+/Ba1
------------ ------------ ------------ ------------ -------
Subordinated LT Subordinated Subordinated Subordinated Subordinated
Rating: LT Rating: LT Rating: LT Rating: LT Rating:
BBB/Baa2 BBB-/Baa3 BB+/Ba2 BB-/Ba3 Below
or Better BB-/Ba3
Utilization
Rate 0.0 0.0 0.0 .12500 .25000
================ ===================== ==================== =================== ===================== =====================
6. Maturity Date. The definition of "Maturity Date" in Section
1.01 of the Agreement is hereby amended to read in its entirety as follows:
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"Maturity Date" shall mean May 31, 2001.
7. Minimum Net Worth. Subsection (iv) of Section 6.02 of the
Agreement is hereby amended to read in its entirety as follows:
"(iv) Consolidated Net Worth. Permit Consolidated
Net Worth as of the last day of any fiscal quarter of the
Borrower to be less than $400,000,000."
8. Lenders. (a) Schedule 2.01 to the Agreement is hereby
amended and replaced in its entirety by Schedule 2.01 to this Amendment.
(b) Each New Lender agrees to be bound by all provisions
relating to "Lenders" under and as defined in the Agreement (as amended hereby),
including (without limitation) provisions relating to the dissemination of
information and the payment of indemnification.
9. Successors. Borrower acknowledges that, prior to the date
hereof, Fleet National Bank, N.A. succeeded to the rights and obligations of
Shawmut Bank, N.A. as a Lender.
10. Effectiveness. This Amendment shall become effective as of
May 31, 1996 when:
(a) The Borrower, the Co-Agents, the Administrative Agent and
each financial institution listed on the signature pages hereto (which includes
all such institutions who were Lenders immediately prior to the effectiveness of
this Amendment and all such institutions who shall become Lenders upon
effectiveness of this Amendment) shall have executed a copy hereof and delivered
the same to the Administrative Agent at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (attention: Xxxxx Xxxxxx), fax no. 212/000-0000.
(b) The Borrower shall have delivered to the Agent, on behalf
of each of the following New Lenders, a duly executed Revolving Credit Note and
a duly executed Term Note (in each case made payable to such Lender) in the
amounts specified for such Lenders on New Schedule 2.01 as such Lender's
Revolving Credit Commitment and Term Loan Commitment, respectively:
FNBB;
Sanwa; and
The Sumitomo Bank, Limited.
(c) Each of the following Old Lenders shall have delivered to
the Agent, for further delivery to the Borrower, the Term Notes and Revolving
Credit Notes previously issued to them (or, if lost, duly signed "lost note
affidavits" in form and substance satisfactory to the Borrower):
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Chase; and
National Westminster Bank plc.
(d) [intentionally deleted]
(e) The following financial institutions shall have remitted
to the Administrative Agent for payment to the Old Lenders, on or before May 31,
1996 and in immediately available funds, the amounts set forth below
(appropriately adjusted to reflect any Loans made or repaid between the date
hereof and May 31, 1996 or, if later, the Amendment Effective Date):
Amount of Amount of
Lender Revolving Loan Term Loan
FNBB -0- $4,285,714.29
Sanwa -0- $4,285,714.29
The Sumitomo
Bank, Limited -0- $4,285,714.29
(f) The Borrower shall have paid to each of the Lenders party
to the Agreement immediately prior to the Amendment Effective Date all accrued
but unpaid interest and Commitment Fees payable to such Lenders through May 31,
1996 (or, if later, the date that this Amendment becomes effective in accordance
with its terms). The parties hereto acknowledge that no Utilization Fees are
payable to the Lenders for the two months ending May 31, 1996.
(g) Each of the Old Lenders shall have received an amount
equal to the outstanding principal amount of their Term Loans and Revolving
Loans on May 31, 1996 (or, if later, on the Amendment Effective Date), together
with (from the Borrower) any amounts payable pursuant to Section 3.05 of the
Agreement if any Eurodollar Loans, CD Rate Loans or Money Market Loans made by
such Lenders are being repaid (whether pursuant to the Agreement or this clause
(g) on a date other than the last day of the Interest Period applicable
thereto).
If this Amendment shall not have become effective by the close of business (New
York time) on May 31, 1996 (or such later time or date as the Administrative
Agent consents to in writing), the provisions of this Amendment shall be deemed
rescinded, null and void.
11. Reallocation. Notwithstanding anything to the contrary
contained in the Agreement or any other Loan Document (including without
limitation in Section 9.03 of the Agreement):
(a) upon the effectiveness of this Amendment, the Old Lenders
shall cease to be Lenders;
(b) upon effectiveness of this Amendment, the New Lenders
shall be Lenders under the Agreement, with Commitments as set forth
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in New Schedule 2.01, as fully as if they had become Purchasers in accordance
with the provisions of Section 9.03 of the Agreement;
(c) the Borrower, the New Lenders and each other party hereto
hereby authorize the Administrative Agent, upon receipt of monies from the New
Lenders paid pursuant to Section 10(e) of this Amendment, to apply (concurrently
with the effectiveness of this Amendment) the amounts so received from such
Lenders (to the extent thereof) to pay to the Old Lenders the principal amounts
of their outstanding Loans to the Borrower;
(d) upon effectiveness of this Amendment, the Revolving Loans
and Term Loans outstanding to each of the New Lenders shall:
(i) in the case of Term Loans, equal the amount
listed as such Lenders' Term Loan Commitments on the New Schedule 2.01;
(ii) in the case of the Revolving Loans, equal the
amount remitted by each such Lender pursuant to Section 10(e) above.
12. Limited Nature of Amendments. The amendments, waivers (if
any) and consents (if any) set forth herein are limited precisely as written and
shall not be deemed to (a) be a consent to any waiver of, or modification of,
any other term or condition of the Agreement or any of the documents referred to
therein or (b) prejudice any right or rights which the Lenders or any Co-Agent
or the Administrative Agent may now have or may have in the future under or in
connection with the Agreement or any of the documents referred to therein.
Except as expressly amended hereby, the terms and provisions of the Agreement
shall remain in full force and effect.
13. Governing Law. THIS AMENDMENT, INCLUDING THE VALIDITY
THEREOF AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED WHOLLY WITHIN THE STATE OF
NEW YORK (REGARDLESS OF THE PLACE WHERE THE AGREEMENT OR THIS AMENDMENT IS OR
WAS EXECUTED).
14. Headings. The descriptive headings of the various
provisions of this Amendment are inserted for convenience of reference only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
15. Counterparts. This Amendment may be executed in any number
of counterparts by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all the
counterparts shall together constitute one and the same instrument. Telecopied
signatures hereto shall be of the same force and effect as an original of a
manually signed copy.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective duly authorized
officers as of the date first above written.
THE PITTSTON COMPANY CREDIT SUISSE, as a Co-Agent, as
Administrative Agent and as a
By XXXXX X. XXXXXXXX Lender
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President By pp J XXXXXX
Corporate Finance --------------------------
and Treasurer Name: Xxxxx Xxxxxx
Title:Associate
By pp XXXXXXXXXXX-XXXXXX
--------------------------
Name: Xxxx Xxxxxxxxxxx-Xxxxxx
Title: Associate
CHEMICAL BANK, as a Co-Agent and XXXXXX GUARANTY TRUST COMPANY OF
a Lender NEW YORK, as a Co-Agent and a
Lender
By XXXXX XXXX By XXXXXX XXXXXXXXX
--------------------------- --------------------------
Name: X. Xxxx Name: Xxxxxx Xxxxxxxxx
Title: VP Title: Vice President
THE SANWA BANK LIMITED THE SUMITOMO BANK, LIMITED
By XXXXXXX X. SMALL By X. XXXXXXXX
-------------------- ---------------------------
Name: Xxxxxxx X. Small Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President & Area Title: Joint General
Manager Manager
175
BANK OF MONTREAL
By XXXXXX XXXXXXX
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA
By XXXXX X. XXXXXXX
--------------------------
Name: J.R. Trimble
Title: Senior Relationship
Manager
THE CHASE MANHATTAN BANK FLEET NATIONAL BANK, N.A. (for
(NATIONAL ASSOCIATION) itself and as successor to
SHAWMUT BANK, N.A.)
By XXXXX XXXX
--------------------------
Name: X. Xxxx By XXXXXX X. XXXXXX
Title: VP ----------------------------
Name: Xxxxxx Xxxxxx
Title: V.P.
J. P. XXXXXX DELAWARE THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH
By XXXXXXX XXXXXXX XXXXXX
-------------------------
Name: Xxxxxxx Xxxxxxx Xxxxxx By XXXXXX XXXXXX
Title: Associate ---------------------------
Name: Xxxxxx Xxxxxx
Title: Deputy General Manager
MELLON BANK, N.A. NATIONAL WESTMINSTER BANK PLC
By XXXXXXX X. XXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxx By XXX X. XXXXXXX
Title: Vice President ---------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
NATIONSBANK, N.A. (SOUTH),
formerly known as:
NATIONSBANK OF GEORGIA, N.A. PNC BANK, NATIONAL ASSOCIATION
By XXXXXXXX X. XxXXXXXXX By XXXX X. XXXXX
------------------------- ---------------------------
Name: Name: Xxxx X. Xxxxx
Title: Senior Vice President Title: Vice President
TORONTO DOMINION (NEW YORK), INC. BANK OF BOSTON CONNECTICUT
By X. XXXXXX By XXXXXXX X. XXXXXX
------------------------- ---------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President Title: Director
176
SCHEDULE 2.01
COMMITMENTS
Lender (including notice address Revolving Credit Term Loan
and Applicable Lending Officers) Commitment Commitment
Credit Suisse
Tower 49 $28,571,428.58 $11,428,571.42
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Bank of Boston Connecticut
One Landmark Square $10,714,285.71 $ 4,285,714.29
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Xxxxxx Guaranty Trust
Company of New York $12,500,000.00 $ 5,000,000.00
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Bank of Montreal
000 Xxxx Xxxxxx $17,857,142.86 $ 7,142,857.14
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
The Bank of Nova Scotia
One Liberty Plaza/26th floor $17,857,142.86 $ 7,142,857.14
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
177
Chemical Bank
One Chase Manhattan Plaza $25,000,000.00 $10,000,000.00
0xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
Fleet National Bank, N.A.
0 Xxxxxxx Xxxxxx $21,428,571.43 $ 8,571,428.57
Boston, Mass. 02211
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
X. X. Xxxxxx Delaware
000 X. Xxxxxx Xxxxxx $12,500,000.00 $ 5,000,000.00
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
The Long-Term Credit Bank of
Japan, Limited, $17,857,142.86 $ 7,142,857.14
New York Branch
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
Mellon Bank, N.A.
One Mellon Bank Center $10,714,285.71 $ 4,285,714.29
Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
The Sanwa Bank Limited
00 Xxxx 00xx Xxxxxx $10,714,285.71 $ 4,285,714.29
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
178
NationsBank of Georgia, N.A.
000 Xxxxx Xxxxxx $21,428,571.43 $ 8,571,428.57
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx XxXxxxxxx
Telecopy: (000) 000-0000
PNC Bank, National Association
One PNC Plaza / 3rd floor $21,428,571.43 $ 8,571,428.57
Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telecopy: (000) 000-0000
The Sumitomo Bank, Limited
000 Xxxx Xxxxxx $10,714,285.71 $ 4,285,714.29
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Clear
Telecopy: (000) 000-0000
Toronto Dominion (New York), Inc.
00 Xxxx 00xx Xxxxxx $10,714,285.71 $ 4,285,714.29
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
Total $250,000,000 $ 100,000,000
================================================================================
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