Exhibit 10.1
Execution Version
$300,000,000 Revolving Loan
dated as of
March 28, 2007
among
NRP (OPERATING) LLC,
as Borrower
The Lenders Party Hereto
and
CITIBANK, N.A.,
as Administrative Agent
CITIGROUP GLOBAL MARKETS, INC. and WACHOVIA CAPITAL MARKETS, LLC
as Joint Lead Arrangers and Joint Bookrunners
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agent
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
ARTICLE I DEFINITIONS |
|
|
1 |
|
|
|
|
|
|
SECTION 1.01. Defined Terms |
|
|
1 |
|
SECTION 1.02. Classification of Loans and Borrowings |
|
|
18 |
|
SECTION 1.03. Terms Generally |
|
|
18 |
|
SECTION 1.04. Accounting Terms; GAAP |
|
|
18 |
|
|
|
|
|
|
ARTICLE II THE CREDITS |
|
|
18 |
|
|
|
|
|
|
SECTION 2.01. Commitments |
|
|
18 |
|
SECTION 2.02. Loans and Borrowings |
|
|
19 |
|
SECTION 2.03. Requests for Revolving Borrowings |
|
|
19 |
|
SECTION 2.04. Intentionally Deleted |
|
|
20 |
|
SECTION 2.05. Intentionally Deleted |
|
|
20 |
|
SECTION 2.06. Letters of Credit |
|
|
20 |
|
SECTION 2.07. Funding of Borrowings |
|
|
24 |
|
SECTION 2.08. Interest Elections |
|
|
25 |
|
SECTION 2.09. Termination and Reduction of Commitments |
|
|
26 |
|
SECTION 2.10. Repayment of Loans; Evidence of Debt |
|
|
28 |
|
SECTION 2.11. Prepayment of Loans |
|
|
29 |
|
SECTION 2.12. Fees |
|
|
29 |
|
SECTION 2.13. Interest |
|
|
30 |
|
SECTION 2.14. Alternate Rate of Interest |
|
|
31 |
|
SECTION 2.15. Increased Costs |
|
|
31 |
|
SECTION 2.16. Break Funding Payments |
|
|
32 |
|
SECTION 2.17. Taxes |
|
|
33 |
|
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
|
|
34 |
|
SECTION 2.19. Mitigation Obligations; Replacement of Lenders |
|
|
36 |
|
SECTION 2.20. Increase of Commitments |
|
|
36 |
|
SECTION 2.21. Swingline Loans |
|
|
38 |
|
|
|
|
|
|
ARTICLE III REPRESENTATIONS AND WARRANTIES |
|
|
39 |
|
|
|
|
|
|
SECTION 3.01. Organization; Powers |
|
|
39 |
|
SECTION 3.02. Authorization; Enforceability |
|
|
39 |
|
SECTION 3.03. No Undisclosed Liabilities |
|
|
39 |
|
SECTION 3.04. Governmental Approvals; No Conflicts |
|
|
39 |
|
SECTION 3.05. Financial Condition; No Material Adverse Change |
|
|
39 |
|
SECTION 3.06. Properties |
|
|
40 |
|
SECTION 3.07. Litigation and Environmental Matters |
|
|
40 |
|
SECTION 3.08. Compliance with Laws and Agreements |
|
|
40 |
|
SECTION 3.09. Investment Company Status |
|
|
40 |
|
SECTION 3.10. Taxes |
|
|
40 |
|
SECTION 3.11. ERISA |
|
|
40 |
|
SECTION 3.12. Disclosure |
|
|
41 |
|
SECTION 3.13. Labor Matters |
|
|
41 |
|
SECTION 3.14. Subsidiaries |
|
|
41 |
|
SECTION 3.15. Margin Stock |
|
|
41 |
|
SECTION 3.16. Licenses and Permits |
|
|
41 |
|
i
|
|
|
|
|
|
|
Page |
SECTION 3.17. Reportable Transaction |
|
|
42 |
|
SECTION 3.18. Intentionally Deleted |
|
|
42 |
|
SECTION 3.19. Senior Debt Status |
|
|
42 |
|
SECTION 3.20. Leases |
|
|
42 |
|
SECTION 3.21. Solvency |
|
|
42 |
|
SECTION 3.22. Foreign Assets Control Regulation |
|
|
42 |
|
SECTION 3.23. Representations Regarding the Parent |
|
|
42 |
|
|
|
|
|
|
ARTICLE IV CONDITIONS |
|
|
43 |
|
|
|
|
|
|
SECTION 4.01. Effective Date |
|
|
43 |
|
SECTION 4.02. Each Credit Event |
|
|
44 |
|
|
|
|
|
|
ARTICLE V AFFIRMATIVE COVENANTS |
|
|
44 |
|
|
|
|
|
|
SECTION 5.01. Financial Statements; Ratings Change and Other Information |
|
|
44 |
|
SECTION 5.02. Notices of Material Events |
|
|
45 |
|
SECTION 5.03. Existence; Conduct of Business |
|
|
46 |
|
SECTION 5.04. Payment of Obligations |
|
|
46 |
|
SECTION 5.05. Maintenance of Properties; Insurance |
|
|
46 |
|
SECTION 5.06. Books and Records; Inspection Rights |
|
|
46 |
|
SECTION 5.07. Compliance with Laws |
|
|
46 |
|
SECTION 5.08. Use of Proceeds and Letters of Credit |
|
|
46 |
|
SECTION 5.09. Compliance with ERISA |
|
|
47 |
|
SECTION 5.10. Intentionally Deleted |
|
|
47 |
|
SECTION 5.11. Compliance with Environmental Laws; Environmental Reports |
|
|
47 |
|
SECTION 5.12. Further Assurances |
|
|
47 |
|
SECTION 5.13. Tax Shelter Regulations |
|
|
47 |
|
SECTION 5.14. Leases; Material Contracts |
|
|
48 |
|
SECTION 5.15. Clean-Down Period |
|
|
48 |
|
SECTION 5.16. Guaranties |
|
|
48 |
|
|
|
|
|
|
ARTICLE VI NEGATIVE COVENANTS |
|
|
48 |
|
|
|
|
|
|
SECTION 6.01. Indebtedness |
|
|
48 |
|
SECTION 6.02. Liens |
|
|
49 |
|
SECTION 6.03. Fundamental Changes |
|
|
50 |
|
SECTION 6.04. Investments, Loans, Advances and Guarantees |
|
|
51 |
|
SECTION 6.05. Swap Agreements |
|
|
51 |
|
SECTION 6.06. Restricted Payments |
|
|
52 |
|
SECTION 6.07. Transactions with Affiliates |
|
|
52 |
|
SECTION 6.08. Sales of Assets |
|
|
52 |
|
SECTION 6.09. Constituent Documents |
|
|
52 |
|
SECTION 6.10. Regulation T, U and X Compliance |
|
|
53 |
|
SECTION 6.11. Sales and Leasebacks |
|
|
53 |
|
SECTION 6.12. Changes in Fiscal Year |
|
|
53 |
|
SECTION 6.13. Change in the Nature of Business |
|
|
53 |
|
SECTION 6.14. Limitation on Restrictions on Subsidiary Distributions |
|
|
53 |
|
SECTION 6.15. Changes to the Omnibus Agreement |
|
|
53 |
|
SECTION 6.16. Changes to the Note Purchase Agreements |
|
|
53 |
|
SECTION 6.17. Minimum Interest Coverage Ratio |
|
|
54 |
|
SECTION 6.18. Maximum Leverage Ratio |
|
|
54 |
|
SECTION 6.19. Permitted Acquisitions |
|
|
54 |
|
ii
|
|
|
|
|
|
|
Page |
ARTICLE VII EVENTS OF DEFAULT |
|
|
54 |
|
|
|
|
|
|
ARTICLE VIII THE ADMINISTRATIVE AGENT |
|
|
57 |
|
|
|
|
|
|
ARTICLE IX MISCELLANEOUS |
|
|
58 |
|
|
|
|
|
|
SECTION 9.01. Notices |
|
|
58 |
|
SECTION 9.02. Waivers; Amendments |
|
|
60 |
|
SECTION 9.03. Expenses; Indemnity; Damage Waiver |
|
|
61 |
|
SECTION 9.04. Successors and Assigns |
|
|
62 |
|
SECTION 9.05. Survival |
|
|
65 |
|
SECTION 9.06. Counterparts; Integration; Effectiveness |
|
|
65 |
|
SECTION 9.07. Severability |
|
|
65 |
|
SECTION 9.08. Right of Setoff |
|
|
65 |
|
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process |
|
|
65 |
|
SECTION 9.10. WAIVER OF JURY TRIAL |
|
|
66 |
|
SECTION 9.11. Headings |
|
|
66 |
|
SECTION 9.12. Confidentiality |
|
|
66 |
|
SECTION 9.13. Interest Rate Limitation |
|
|
67 |
|
SECTION 9.14. USA PATRIOT Act |
|
|
67 |
|
SECTION 9.15. Separateness |
|
|
67 |
|
SECTION 9.16. No Personal Liability of Directors, Officers, Employees and Unitholders |
|
|
67 |
|
SECTION 9.17. Release of Guaranty Agreements |
|
|
67 |
|
SECTION 9.18. Renewal and Extension |
|
|
68 |
|
SCHEDULES:
Schedule 2.01 — Commitments
Schedule 3.03 — Disclosed Matters
Schedule 3.14 — Subsidiaries
Schedule 6.01 — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.08 — Permitted Asset Sales
Schedule 6.14 — Existing Restrictions
EXHIBITS:
Exhibit A — Form of Assignment and Assumption
Exhibit B — Form of Commitment Increase Notice
Exhibit C — Form of New Lender Agreement
Exhibit D — Form of Guaranty Agreement (Subsidiary)
Exhibit E — Form of Borrowing Request
Exhibit F — Form of Compliance Certificate
Exhibit G — Form of Extension Request
iii
AMENDED AND RESTATED
CREDIT AGREEMENT (this “
Agreement”) dated as of March 28, 2007,
among NRP (OPERATING) LLC, the LENDERS party hereto, and CITIBANK, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.
“Acquisition” shall have the meaning set forth in Section 6.18.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means Citibank, N.A., in its capacity as administrative agent
for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agent Parties” shall have the meaning set forth in Section 9.01(c).
“Agreement” shall have the meaning set forth in the introductory paragraph hereof.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
“Anniversary Date” has the meaning assigned to such term in Section
2.09(d)(i).
“Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
“Applicable Rate” means, for any day during any period between two successive
Financial Statement Delivery Dates commencing on the first Financial Statement Delivery Date in
such period and ending on the day before the following Financial Statement Delivery Date, with
respect to any ABR Loan, Eurodollar Revolving Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable margin per annum set forth in the appropriate column
below under the caption “ABR Spread,” “Eurodollar Spread” or “Commitment Fee Rate,” as the case may
be, for the Leverage Ratio for the fiscal period for which such financial statements were delivered
as of the Financial Statement Delivery Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitment |
|
|
Eurodollar |
|
ABR |
|
Fee |
Leverage Ratio: |
|
Spread |
|
Spread |
|
Rate |
Less than 1:0:1.0 |
|
|
0.4500 |
% |
|
|
0.00 |
% |
|
|
0.100 |
% |
Greater than or equal to 1.0:1.0 but less than 1.5:1.0 |
|
|
0.6000 |
% |
|
|
0.00 |
% |
|
|
0.125 |
% |
Greater than or equal to 1.5:1.0 but less than 2.0:1.0 |
|
|
0.7000 |
% |
|
|
0.00 |
% |
|
|
0.150 |
% |
Greater than or equal to 2.0:1.0 but less than 2.5:1.0 |
|
|
0.8750 |
% |
|
|
0.00 |
% |
|
|
0.175 |
% |
Greater than or equal to 2.5:1.0 but less than 3.75:1.0 |
|
|
1.125 |
% |
|
|
0.125 |
% |
|
|
0.225 |
% |
Greater than 3.75:1.0 |
|
|
1.50 |
% |
|
|
0.50 |
% |
|
|
0.300 |
% |
Notwithstanding the foregoing, in the event Borrower achieves a public debt rating from S&P or
Xxxxx’x, the following pricing grid shall apply to the determination of the “ABR Spread,”
“Eurodollar Spread” or “Commitment Fee Rate;” provided, however, if for any reason Xxxxx’x and S&P
shall not have in effect a rating or if the rating system of both Xxxxx’x and S&P shall change,
then the pricing grid based on the Leverage Ratio shall apply. If the ratings established or
deemed to have been established by Xxxxx’x and S&P shall fall within different Categories, the
Applicable Rate shall be based on the higher of the two ratings (unless one of the ratings is two
or more Categories lower than the other, in which case the Applicable Rate shall be determined by
reference to the Category next below that of the higher of the two ratings). If the ratings
established or deemed to have been established by Xxxxx’x and S&P shall be changed (other than as a
result of a change in the rating system of Xxxxx’x or S&P), such change shall be effective as of
the date on which it is first announced by the applicable rating agency, irrespective of when
notice of such change shall have been furnished by the Borrower to the Administrative Agent and the
Lenders. Each change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the effective date of
the next such change.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eurodollar |
|
ABR |
|
Commitment |
Debt Rating |
|
Spread |
|
Spread |
|
Fee Rate |
BBB+/Baa1 |
|
|
0.4000 |
% |
|
|
0.00 |
% |
|
|
0.080 |
% |
BBB/Baa2 |
|
|
0.5000 |
% |
|
|
0.00 |
% |
|
|
0.100 |
% |
BBB-/Baa3 |
|
|
0.6250 |
% |
|
|
0.00 |
% |
|
|
0.125 |
% |
BB+/Ba1 |
|
|
0.8750 |
% |
|
|
0.00 |
% |
|
|
0.175 |
% |
BB/Ba2 |
|
|
1.125 |
% |
|
|
0.125 |
% |
|
|
0.225 |
% |
Less than BB/Ba2 |
|
|
1.50 |
% |
|
|
0.50 |
% |
|
|
0.300 |
% |
For purposes of the foregoing, (a) if sufficient information does not exist to calculate the
Applicable Rate, or the Borrower has not delivered such information to the Administrative Agent in
a timely manner, Eurodollar Borrowings shall not be available to the Borrower and the Applicable
Rate for ABR Loans shall be 0.50% per annum and for the commitment fee shall be .30% per annum; and
(b) if the Leverage Ratio shall change upon delivery of any financial statements required under
Section 5.01,
2
such change in the Applicable Rate shall be effective as of the date on which any such
financial statement is delivered, irrespective of whether it is in the middle of an Interest Period
or when notice of such change shall have been furnished by the Borrower to the Administrative Agent
and the Lenders pursuant to Section 5.01 hereof or otherwise. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change.
“Approved Fund” has the meaning assigned to such term in Section 9.04.
“Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as “well capitalized” and within
supervisory subgroup “B” (or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the offices of such member in the
United States; provided that if, as a result of any change in any law, rule or regulation,
it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate
shall be such annual rate as shall be determined by the Administrative Agent to be representative
of the cost of such insurance to the Lenders.
“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.
“Available Cash” has the meaning set forth in the Second Amended and Restated
Agreement of Limited Partnership of the Parent dated as of January 4, 2007, without regard to any
further amendments, modifications and/or restatements of such Agreement of Limited Partnership.
“Base CD Rate” means the sum of (a) the Three Month Secondary CD Rate multiplied by
the Statutory Reserve Rate plus (b) the Assessment Rate.
“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.
“Borrower” means NRP (Operating) LLC, a Delaware limited liability company.
“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect and (b) Swingline Loans.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03 and made in a form substantially similar to the form attached hereto as
Exhibit E attached hereto and incorporated herein by reference.
“
Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in
New York City are authorized or required by Law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “
Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
3
“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Change in Control” means the occurrence of any of the following events: (a) Xxxxxx
X. Xxxxxxxxx, Xx., WPP Group and/or one or more of their direct or indirect, wholly-owned
subsidiaries cease to own and control more than 50% of the general partnership interests of the
General Partner or otherwise cease to Control the General Partner; (b) the General Partner shall
cease to own and control, of record and beneficially, directly, 100% of the general partner
interests in the Parent; (c) the Parent shall cease to own and control, of record and beneficially,
100% of the membership interests of the Borrower; or (d) any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) under the Exchange Act), other than Xxxxxx X.
Xxxxxxxxx, Xx., WPP Group and/or one or more of their direct or indirect, wholly-owned
subsidiaries, shall become, or obtain rights (whether by means or warrants, options or otherwise)
to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act)
directly or indirectly, of, in the aggregate, more than 20% of the total number of Outstanding
Units our Outstanding Partnership Securities (as defined in the Partnership Agreement).
“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
“Class”, when used in reference to any Loan or Borrowing, refers to such Loan, or the
Loans comprising such Borrowing, as Revolving Loans.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section
2.09, (b) increased from time to time pursuant to Section 2.20, and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or
in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment,
as applicable. The initial aggregate amount of the Lenders’ Commitments is $300,000,000.
“Commitment Increase Agreement” has the meaning assigned to such term in Section
2.20.
“Commitment Increase Notice” has the meaning assigned to such term in Section
2.20.
“Communications” has the meaning assigned to such term in Section 9.01(c).
“Consolidated EBITDDA” means, with respect to the Parent, the Borrower and its
Subsidiaries (or, following a Parent Event, the Borrower and its Subsidiaries) for any period,
4
Consolidated Net Income for such period plus, without duplication and to the extent reflected
as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) interest expense, amortization or write-off of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with Indebtedness (including
the Indebtedness hereunder), (c) depletion expense, (d) depreciation and amortization expense, (e)
amortization of intangibles and organization costs, (f) any extraordinary non-cash expenses or
losses and (g) any extraordinary, unusual or non-recurring cash income or gains to the extent not
included in Consolidated Net Income, and minus, (i) to the extent included in the statement
of such Consolidated Net Income for such period, any extraordinary, unusual or non-recurring
non-cash income or gains (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (ii) any cash payments made during such period in respect of
non-cash expenses or losses and subsequent to the fiscal quarter in which the relevant non-cash
expenses or losses were reflected as a charge in the statement of Consolidated Net Income, all as
determined on a consolidated basis. For purposes of calculating Consolidated EBITDDA of the Parent
(or if a Parent Event has occurred, the Borrower) and its Subsidiaries for any period for the
purposes of Section 6.17 and Section 6.18 of this Agreement, (i) the earnings
before interest, taxes, depletion, depreciation and amortization calculated as set forth above of
any Person or 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
Administrative Agent pursuant to Section 5.01 hereof, and (ii) the earnings before
interest, taxes, depletion, depreciation and amortization calculated as set forth above of any
Person or assets Disposed of by the Borrower or its Subsidiaries during such period shall be
excluded, on a pro forma basis for such period as if such Disposition, and the payment 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 Administrative Agent pursuant to
Section 5.01 hereof.
“Consolidated Indebtedness” means the consolidated Indebtedness of the Parent, the
Borrower and its Subsidiaries (or, following a Parent Event, the Borrower and its Subsidiaries).
“Consolidated Interest Expense” means, for any period, the sum of aggregate interest
expense and capitalized interest (including the interest portion of any Capital Lease Obligations)
of the Parent, the Borrower and its Subsidiaries (or, following a Parent Event, the Borrower and
its Subsidiaries) determined on a consolidated basis for such period.
“Consolidated Lease Expense” means, for the relevant period, with respect to the
Parent, the Borrower, and its Subsidiaries (or, following a Parent Event, the Borrower and its
Subsidiaries) on a consolidated basis, the sum of all rentals in respect of all leases whereunder
the Parent, the Borrower or any Subsidiary (or, following a Parent Event, the Borrower or any
Subsidiary) is lessee, excluding Capital Lease Obligations to the extent such are included in
Consolidated Interest Expense.
“Consolidated Net Income” means for any period, the consolidated net income (or loss)
of the Parent, the Borrower and its Subsidiaries (or, following a Parent Event, the Borrower and
its Subsidiaries), as applicable, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to
the date it becomes a Subsidiary of the Borrower, or is merged into or consolidated with the
Borrower or any of its Subsidiaries, as applicable, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower, as applicable) in which the Borrower or any of its
Subsidiaries, as applicable, has an ownership interest, except to the extent that any such income
is actually received by the Borrower or any of its Subsidiaries, as applicable, in the form of
dividends or similar distributions, and (c) the undistributed
5
earnings of any Subsidiary of the Borrower, to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of
any Contractual Obligation or by any Law applicable to such Subsidiary.
“Contractual Obligation” means as to any Person, any provision of any security issued
by such Person or of any material agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound.
“Control” means 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 ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.
“Declining Lender” has the meaning assigned to such term in Section
2.09(d)(i).
“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.03, or previously disclosed in the Parent’s filings with
the SEC or otherwise disclosed in writing to the Administrative Agent and Lenders.
“Dispose” means with respect to any property, to sell, lease, engage in a sale and
leaseback with respect thereto, assign, convey, transfer or otherwise dispose thereof. The term
“Disposition” shall have a correlative meaning.
“Distribution Loan” means any portion of any Borrowing used by the Borrower to fund
Restricted Payments permitted pursuant to Section 6.06.
“dollars” or “$” refers to lawful money of the United States of America.
“XXXXX” means the Electronic Data Gathering, Analysis, and Retrieval computer system
for the receipt, acceptance, review and dissemination of documents submitted to the SEC in
electronic format.
“Effective Date” means the date on which the conditions specified in Section
4.01 are satisfied (or waived in accordance with Section 9.02).
“Environmental Laws” means all applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, or legally enforceable directives issued, promulgated or
entered into by any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management or release of any Hazardous Material or to health
(with respect to exposure to Hazardous Materials) and safety matters.
“Environmental Liability” means any liability (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) the exposure to any Hazardous Materials, (d) the release of any Hazardous
Materials into the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.
6
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
“Event of Default” has the meaning assigned to such term in Article VII.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Lender’s failure to comply with Section
2.17(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive additional amounts
from the Borrower with respect to such withholding tax pursuant to Section 2.17(a).
7
“Existing Letters of Credit” means the letters of credit listed on Schedule
1.01.
“Extending Lender” has the meaning assigned to such term in Section
2.09(d)(i).
“Extension Request” has the meaning assigned to such term in Section
2.09(d)(i).
“
Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fee Letter” means, collectively, the letter agreement dated March 9, 2007, between
the Borrower, Citigroup Global Markets, Inc., and Citibank, N.A., and the letter agreement dated
March 12 2007, between the Borrower, Wachovia Capital Markets, LLC and Wachovia Bank, National
Association, each such letter pertaining to certain fees and expenses payable by Borrower to such
parties as set forth therein.
“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Parent or the Borrower as applicable.
“Financial Statement Delivery Date” means the earlier of the date on which the
financial statements of the Parent (or, if a Parent Event has occurred, the Borrower) are delivered
or are required to be delivered to the Administrative Agent and the Lenders pursuant to Section
5.01(a) or Section 5.01(b), as the case may be.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
“GAAP” means generally accepted accounting principles in the United States of America,
as in effect from time to time.
“General Partner” means NRP (GP) LP, a Delaware limited partnership and the sole
general partner of the Parent.
“Governmental Approval” means (i) any authorization, consent, approval, license,
waiver, ruling, permit, tariff, rate, certification, exemption, filing, variance, claim, order,
judgment, decree, sanction or publication of, by or with; (ii) any notice to; (iii) any declaration
of or with; or (iv) any registration by or with, or any other action by or on behalf of, any
Governmental Authority.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness
8
or other obligation of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of business.
“Guarantor” means each Subsidiary of the Borrower in existence on the Effective Date
and each Person who becomes a Subsidiary of the Borrower after the Effective Date.
“Guaranty Agreement” means any guaranty agreement executed by a Guarantor in favor of
the Administrative Agent and the Lenders and in the form attached hereto as Exhibit D, together
with all extensions, renewals, amendments, substitutions and replacements thereof or thereto.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas and
all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right to be secured by)
any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all
Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of guaranty and (i) all
obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Information Memorandum” means the Confidential Information Memorandum dated March,
2007 relating to the Borrower and the Transactions.
“Interest Coverage Ratio” means, at any date, the ratio of (i) Consolidated EBITDDA to
(ii) (a) Consolidated Interest Expense, plus (b) Consolidated Lease Expense, in each case for the
period of four consecutive fiscal quarters most recently ended on or prior to such date for which
financial information is available.
“Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.08.
9
“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period.
“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three, six or, if available by all Lenders, nine months
thereafter, as the Borrower may elect; provided that (i) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar Borrowing that
commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Issuing Bank” means (a) any of the Lenders selected by the Borrower, and agreed to by
such Lender in its discretion, in its capacity as the issuer of Letters of Credit hereunder, and
its successors in such capacity as provided in Section 2.06(i), and (b) Citibank, N.A., in
its capacity as issuer of each Existing Letter of Credit. The Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which
case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit
issued by such Affiliate.
“Joint Lead Arrangers and Joint Bookrunners” means Citigroup Global Markets, Inc. and
Wachovia Capital Markets, LLC, in their capacity as Joint Lead Arrangers and Joint Bookrunners
hereunder.
“Law” means all laws, statutes, treaties, ordinances, codes, acts, rules, regulations,
Government Approvals and orders of all Governmental Authorities, whether now or hereafter in
effect.
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower or converted into a Revolving
Loan pursuant to Section 2.06(e) at such time. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.
“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.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
10
“Letter of Credit” means any letter of credit issued pursuant to this Agreement and
shall include the Existing Letters of Credit, in each case as they may be extended or otherwise
modified by the Issuing Bank from time to time.
“Letter of Credit Collateral Account” shall have the meaning set forth in Section
2.06.
“Leverage Ratio” means, at any date, the ratio of (i) Consolidated Indebtedness at
such date to (ii) Consolidated EBITDDA for the four consecutive fiscal quarters most recently ended
on or prior to such date for which financial information is available.
“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Xxxxx Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
“Loan Documents” means this Agreement, the Guaranty Agreements, any promissory notes
executed in connection herewith, the Letters of Credit (and any applications therefor and
reimbursement agreements relating thereto), the Fee Letter and any other agreements and documents
executed and delivered in connection with this Agreement.
“Loan Party” and “Loan Parties” means, singularly and collectively, the
Borrower and each Guarantor.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or condition, financial or otherwise, of the Parent, the Borrower and its Subsidiaries
(or, if a Parent Event has occurred, the Borrower and its Subsidiaries) taken as a whole, (b) the
ability of the Borrower to perform any of its obligations under this Agreement or (c) the rights of
or benefits available to the Lenders under this Agreement.
“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 twenty percent (20%) or more of the gross revenues of the Borrower and its
Subsidiaries
11
for the previous fiscal year, or (ii) is projected to account for twenty percent (20%) or more
of the gross revenues of the Borrower and its Subsidiaries for the current fiscal year.
“Material Indebtedness” means (i) Indebtedness (other than the Loans and Letters of
Credit), and (ii) obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $25,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.
“Maturity Date” means March 27, 2012.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“New Lender” has the meaning assigned to such term in Section 2.20.
“New Lender Agreement” has the meaning assigned to such term in Section 2.20.
“Note Purchase Agreements” means those certain Note Purchase Agreements dated as of
June 19, 2003 among the Borrower and the Purchasers listed therein, as amended by that certain
First Amendment to Note Purchase Agreements dated July 18, 2005, as supplemented by that certain
First Supplement to Note Purchase Agreements dated July 19, 2005, as supplemented by that certain
Second Supplement to Note Purchase Agreement dated March 28, 2007, as further amended by that
certain Second Amendment to Note Purchase Agreement dated March 28, 2007.
“Omnibus Agreement” means that certain Omnibus Agreement, dated October 17, 2002, by
and among the General Partner, the Parent, the Borrower, GP Natural Resource Partners LLC, WPP
Group, Arch Coal Inc., Ark Land Company, and Xxxxxxxxx Coal Management LLC, which provides, among
other things, certain non-competition provisions and indemnities for environmental and tax
liabilities.
“
Original Credit Agreement” means that certain
Credit Agreement by and among Borrower,
the several lenders from time to time party thereto, Citibank, N.A., as Administrative Agent,
Citigroup Global Markets, Inc. and Wachovia Capital Markets, LLC, as Joint Lead Arrangers and Joint
Bookrunners, Wachovia Bank, National Association, and the other agents party thereto, dated October
29, 2004, as amended.
“Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.
“Outstanding Units” has the meaning set forth in the Partnership Agreement.
“Parent” means Natural Resource Partners L.P.
“Parent Event” means the occurrence of any of the following events: (i) the Parent
has any subsidiary, joint venture or other investment other than the Borrower, (ii) the Borrower is
not wholly
12
owned by the Parent, (iii) the Parent’s financials are no longer filed with the SEC, or (iv)
the Parent has any Indebtedness to, or Guarantees any Indebtedness of, any Person other than the
Borrower.
“Participant” has the meaning set forth in Section 9.04.
“Partnership Agreement” means the Second Amended and Restated Agreement of Limited
Partnership of the Parent dated as of January 4, 2007, as amended, amended and restated or
otherwise modified from time to time.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Permitted Encumbrances” means:
(a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or any of its
Subsidiaries;
(g) Liens securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements entered into in
the ordinary course of business of the Borrower and its Subsidiaries;
(h) licenses of patents, trademarks and other intellectual property rights granted by
the Borrower or any of its Subsidiaries in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of the business of the
Borrower and its Subsidiaries;
(i) the lien reserved in leases for rent and for compliance with the terms of the lease
in the case of leasehold estates;
(j) any Lien in favor of any Governmental Authority to secure partial, progress,
advance or other payments pursuant to any contract or statute, or any Lien securing
industrial development, pollution control or similar revenue bonds;
13
(k) any easements, exceptions or reservations in any property or assets granted or
reserved for the purpose of pipelines, roads, the removal of oil, gas, coal, timber or other
minerals, and other like purposes, or for the joint or common use of real property,
facilities and equipment which are incidental to, and do not materially interfere with, the
ordinary conduct of the Borrower’s and its Subsidiaries’ business; and
(l) Liens 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 the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness except as otherwise permitted above.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper, asset-backed securities, auction rate securities
or similar instruments maturing within 270 days from the date of acquisition thereof and
having, at such date of acquisition, a credit rating of at least A-2 from S&P or P-2 from
Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of not less than
$250,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000,000,000;
(f) securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank satisfying
the requirements of clause (b) of this definition; and
(g) shares of money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition, except that with
respect to the maturities of the assets included in such funds the requirements of clauses
(a) through (f) shall not be applied to the individual assets included in such funds but to
the weighted-average maturity of all assets included in such funds.
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
14
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Platform” shall have the meaning set forth in Section 9.01(c).
“
Prime Rate” means the rate of interest per annum publicly announced from time to time
by Citibank, N.A. as its prime rate in effect at its principal office in
New York City; each change
in the Prime Rate shall be effective from and including the date such change is publicly announced
as being effective.
“
Prior Credit Documents” means the Original
Credit Agreement, together with the
promissory notes made by Borrower thereunder and any and all other documents and instruments
executed in connection therewith.
“Prior Indebtedness” means all Indebtedness outstanding under the Prior Credit
Documents on the date hereof.
“Quarterly Distributions” means the distributions by the Parent of Available Cash.
“Re-Allocation Date” has the meaning assigned to such term in Section 2.20.
“Register” has the meaning set forth in Section 9.04.
“Regulation D” means Regulation D of the Board, as the same is from time to time in
effect, and all official rulings and interpretations thereunder or thereof.
“Regulation T” means Regulation T of the Board, as the same is from time to time in
effect, and all official rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the Board, as the same is from time to time in
effect, and all official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Board, as the same is from time to time in
effect, and all official rulings and interpretations thereunder or thereof.
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures
representing more than 50% of the sum of the total Revolving Credit Exposures or, if at such time
no Lenders have Revolving Credit Exposure, Lenders having unused Commitments representing more than
50% of the unused Commitments at such time.
“Response” means (a) ”response” as such term is defined in CERCLA, 42 U.S.C.
§9601(25), and (b) all other actions required by any Governmental Authority or voluntarily
undertaken to: (i) clean up, remove, treat, xxxxx, or in any other way address any Hazardous
Material in the environment; (ii) prevent the release of any Hazardous Material; or (iii) perform
studies and investigations in connection with clause (i) or (ii) above.
15
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Borrower or any option, warrant or
other right to acquire any such Equity Interests in the Borrower.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans, its LC Exposure and Swingline
Exposure at such time.
“Revolving Loan” means a Loan made pursuant to Section 2.03.
“S&P” means Standard & Poor’s.
“SEC” means the Securities and Exchange Commission (or successors thereto or an
analogous Governmental Authority).
“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 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, taking into account the possibility of refinancing such debt
or selling such assets, 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. 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.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject (a)
with respect to the Base CD Rate, for new negotiable non-personal time deposits in dollars of over
$100,000 with maturities approximately equal to three months and (b) with respect to the Adjusted
LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
“subsidiary(ies)” means, singularly and collectively, with respect to any Person (the
“parent”) at any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the parent in the
parent’s consolidated financial statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of
16
which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of the Borrower.
“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom stock or
similar plan providing for payments only on account of services provided by current or former
directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap
Agreement.
“Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.
“Swingline Lender” means Citibank, N.A., in its capacity as lender of Swingline Loans
hereunder.
“Swingline Loan” means a Loan made pursuant to Section 2.21.
“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
“
Three Month Secondary CD Rate” means, for any day, the secondary market rate for
three month certificates of deposit reported as being in effect on such day (or, if such day is not
a Business Day, the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of
New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three month certificates of
deposit of major money center banks in
New York City received at approximately 10:00 a.m.,
New York
City time, on such day (or, if such day is not a Business Day, on the next preceding Business Day)
by the Administrative Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
“Total Commitment” means an amount equal to the sum of the Lenders’ Commitments.
“Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder.
“Type” when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
17
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
“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.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a
“Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar
Revolving Borrowing”).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to
have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a)
any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided that,
if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in a manner satisfactory to the Borrower and
the Required Lenders.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving
Loans to the Borrower from time to time during the Availability Period in an aggregate principal
amount that will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s
Commitment or (b) the sum of the total Revolving Credit Exposures
18
exceeding the total Commitments.
Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and re-borrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans
made by the Lenders ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $1,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is
an integral multiple of $1,000 and not less than $100,000. Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time be more than a total of
fifteen (15) Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.03.
Requests for Revolving Borrowings. To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New
York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of
an ABR Borrowing, not later than 11:00 a.m.,
New York City time, on the date of the proposed
Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by
Section 2.06(e) may be given not
later than 10:00 a.m.,
New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify the following
information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
19
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the
term “Interest Period”; and
(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. Intentionally Deleted.
SECTION 2.05. Intentionally Deleted.
SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Borrower
may request the issuance of Letters of Credit for its own account or for the account of any
Subsidiary, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. Further, all Existing Letters of Credit shall be deemed to have been
issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by
the terms and conditions hereof.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. A Letter
of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension the sum of the total
Revolving Credit Exposures shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity Date; provided,
however, that any Letter of Credit with a one year term may provide for the renewal thereof for
additional one year periods which shall in no event extend beyond the date that is five Business
Days prior to the Maturity Date unless cash collateral, as set forth in Section 2.06(k)
below shall have been granted to the Issuing Bank as security for the Indebtedness under the Loan
Documents no later than five Business Days prior to the Maturity Date, in which case such cash
collateralized Letter of Credit shall not have an expiration date later than one year after the
Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative
20
Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Promptly following receipt of a notice from Borrower requesting the issuance of a
Letter of Credit in accordance with Section 2.06(b), the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender’s participation in such Letter
of Credit.
(e)
Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon,
New York City time, on the
date that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 12:00 noon, New York
City time, on (i) the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such notice is not
received prior to such time on the day of receipt;
provided that the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with
Section 2.03
that such payment be financed with an ABR Revolving Borrowing in an equivalent amount and, to the
extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then
due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as provided in
Section
2.07 with respect to Loans made by such Lender (and
Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt
by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR
Revolving Loans as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the
21
Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
Law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the
Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then
Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the
account of the Issuing Bank, except that interest accrued on and after the date of payment by any
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
22
Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, the Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in clause (h), (i) or (j)
of Article VII. Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Funds held in such account shall be invested in money market funds
of the Administrative Agent or in another investment if mutually agreed upon by the Borrower and
the Administrative Agent, but the Administrative Agent shall have no other obligation to make any
other investment of the funds therein. The Administrative Agent shall exercise reasonable care in
the custody and preservation of any funds held in such account and shall be deemed to have
exercised such care if such funds are accorded treatment substantially equivalent to that which the
Administrative Agent accords its own property, it being understood that the Administrative Agent
shall not have any responsibility for taking any necessary steps to preserve rights against any
parties with respect to any such funds. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of the Lenders with LC Exposure representing greater than 50% of the
total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement.
If the Borrower is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default have been cured or
waived.
(k) In the event any Letters of Credit shall be outstanding according to their terms after the
Maturity Date, the Borrower shall pay to the Administrative Agent, no later than the date that is
five Business Days prior to the Maturity Date, an amount equal to the undrawn amount of such
Letters of Credit to be held in a special interest bearing cash collateral account pledged to the
Administrative Agent (the “Letter of Credit Collateral Account”). The Borrower and the
Administrative Agent shall establish the Letter of Credit Collateral Account and the Borrower shall
execute all documents and agreements, including the Administrative Agent’s standard form of
assignment of deposit accounts, that the Administrative Agent reasonably requests in connection
therewith to establish the Letter of Credit Collateral Account and grant the Administrative Agent,
for the benefit of the Lenders, a first priority security interest in such account and the funds
therein. The Borrower hereby pledges to the Administrative Agent and grants the Administrative
Agent a security interest in the Letter of Credit Collateral Account, whenever established, in all
funds held in the Letter of Credit Collateral Account from time to time, and in all proceeds
thereof as security for the payment of all Indebtedness existing under the Loan Documents. Funds
held in the Letter of Credit Collateral Account shall be held as cash collateral for obligations
described in this Section 2.06 and all other Indebtedness under the Loan Documents and
promptly applied by the Administrative Agent at the request of the Issuing Bank to any
reimbursement or other obligations under Letters of Credit that exist or occur in the future during
such
23
time as the Borrower has any outstanding obligations to the Issuing Bank. To the extent that
any surplus funds are held in the Letters of Credit Collateral Account above the undrawn amount of
any outstanding Letters of Credit, during the existence of an Event of Default the Administrative
Agent may (A) hold such surplus funds in the Letter of Credit Collateral Account as cash collateral
or (B) apply such surplus funds to satisfy any outstanding Indebtedness under the Loan Documents.
If no Default exists, the Administrative Agent shall release to the Borrower at the Borrower’s
written request any funds held in the Letter of Credit Collateral Account above the amount required
by this Section. Funds held in the Letter of Credit Collateral Account shall be invested in money
market funds of the Administrative Agent or in another investment if mutually agreed upon by the
Borrower and the Administrative Agent, but the Administrative Agent shall have no other obligation
to make any other investment of the funds therein. The Administrative Agent shall exercise
reasonable care in the custody and preservation of any funds held in the Letter of Credit
Collateral Account and shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent accords its own property,
it being understood that the Administrative Agent shall not have any responsibility for taking any
necessary steps to preserve rights against any parties with respect to any such funds.
(l) Existing Letters of Credit. On the Effective Date without further action by any
party hereto, (x) the Issuing Bank for each Existing Letter of Credit shall be deemed to have
granted to each Lender, and each Lender shall be deemed to have acquired from the Issuing Bank, a
participation in each of the Existing Letters of Credit equal to such Lender’s Percentage of (A)
the aggregate amount available to be drawn under such Existing Letters of Credit and (B) the
aggregate amount of any outstanding reimbursement obligations in respect thereof. With respect to
each of the Existing Letters of Credit (i) if the Issuing Bank has heretofore sold a participation
therein to a Lender, the Issuing Bank and such Lender agree that such participation shall be
automatically canceled on the Effective Date and (ii) if the Issuing Bank has heretofore sold a
participation therein to any bank or financial institution that is not a Lender, then the Issuing
Bank shall procure the termination of such participation on or prior to the Effective Date. On and
after the Effective Date, each of the Existing Letters of Credit shall be a Letter of Credit issued
hereunder.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the
account of the Administrative Agent most recently designated by it for such purpose by notice to
the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such
24
Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a form approved by
the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period
to be applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”. If any such
Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so
25
notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an integral
multiple of $1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent and such Commitments
shall not be reinstated. Each reduction of the Commitments shall be made ratably among the Lenders
in accordance with their respective Commitments.
(d) Borrower shall have the right to request extensions of the Maturity Date as follows:
(i) Provided that no Default or Event of Default shall have occurred and be
continuing, Borrower shall have separate options to request one-year extensions of
the then-current Maturity Date, in each case by giving notice to the Administrative
Agent (an “Extension Request”) substantially in the form of Exhibit G
attached hereto no earlier than ninety (90) days before each anniversary of the
Effective Date and no later than forty-five (45) days before each anniversary of the
Effective Date, with respect to each Extension Request. If Borrower fails to timely
deliver an Extension Request, then Borrower shall have no further right to deliver
such Extension Request(s) and shall have no right to extend the Maturity Date in
connection with the applicable Extension Request that was not timely delivered by
Borrower. The Administrative Agent shall promptly transmit the contents of each
Extension Request to each of the Lenders. Each Lender may, in its sole and absolute
discretion, indicate whether it consents to such Extension Request by acknowledging
such Extension Request and indicating in its acknowledgment whether or not it
consents to the extension of the then current Maturity Date and returning such
acknowledgment to the Administrative Agent within twenty-five (25) days. Failure to
acknowledge such Extension Request within such twenty-five (25) day period shall be
deemed to be a rejection of the applicable Extension Request by such Lender (any
Lender that rejects, or is deemed to have rejected, an Extension Request is
hereinafter referred to as a “Declining Lender” and any Lender that accepts
such Extension Request is hereinafter referred to as an “Extending Lender”).
Notwithstanding any other term or provision hereof, no Lender shall have any
obligation to consent to any extension of the Maturity Date. Provided that the
Required Lenders have agreed to an
26
Extension Request, the then current Maturity Date
shall be automatically extended for one year in connection with such Extension
Request with respect to, and only with respect to, the Commitments of each Extending
Lender. Notwithstanding anything contained herein to the contrary, Borrower shall
have the right to withdraw any Extension Request by delivering written notice to
Administrative Agent at any time prior to the earlier to occur of (A) the applicable
anniversary of the Effective Date (each such date, an “Anniversary Date”),
and (B) the date that Borrower enters into any Commitment Increase Agreement or New
Lender Agreement in connection with the delivery of such Extension Request. In the
event Borrower timely withdraws any Extension Request as set forth in the
immediately preceding sentence, the Maturity Date shall be the date that the
Maturity Date would have occurred had Borrower not delivered such Extension Request.
(ii) With respect to the Commitments of the Declining Lenders, Borrower may, in
its sole discretion, but with the consent of the Administrative Agent as to any
Person that is not at such time a Lender (which consent shall not be unreasonably
withheld or delayed), offer to any existing Lender or to one or more additional
banks or financial institutions the opportunity to participate in the Commitments of
the Declining Lenders by notifying the Administrative Agent; provided that,
notwithstanding anything in this Agreement to the contrary, in no event shall less
than the full amount of any specific Declining Lender’s Commitment be allocated to
such existing Lenders and/or additional banks or financial institutions. Promptly
and in any event within five (5) Business Days after receipt of notice from the
Borrower of its desire to offer all or a portion of the Commitments of the Declining
Lenders to certain existing Lenders or such additional banks or financial
institutions identified by the Borrower and approved by the Administrative Agent,
the Administrative Agent shall notify such proposed lenders of the opportunity to
participate in the Commitments of the Declining Lenders. The Commitments of any
Declining Lenders that are allocated to existing Lenders and/or such additional
banks or financial institutions in accordance with this Section 2.09(d) shall
terminate on the applicable Anniversary Date with respect to each Extension Request.
In the event the full amount of the Declining Lenders’ Commitments are not
allocated as set forth above, Borrower shall have the right to determine, in its sole and
absolute discretion, which Declining Lender’s(s’) Commitments will be allocated to
existing Lenders and/or additional banks or financial institutions as set forth
above and Borrower shall notify the Administrative Agent thereof at least ten (10)
days prior to each Anniversary Date, as applicable.
(iii) Any Lender that accepts an offer to it by the Borrower to increase its
Commitment by participating in all or a portion of the Commitments of the Declining
Lenders shall, in each case, execute a Commitment Increase Agreement (as defined in
Section 2.20 below), with the Borrower and the Administrative Agent,
whereupon such Lender shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of its Commitment as so increased, and
this Agreement shall be deemed to be amended to reflect such increase; provided that
no Lender shall have any obligation whatsoever to agree to increase its Commitment.
Any such Commitment Increase Agreement shall be effective on the applicable
Anniversary Date. Any additional bank or financial institution offered Commitments
of the Declining Lenders by Borrower in accordance with the terms of this Agreement
shall execute and deliver to the Administrative Agent a New Lender Agreement (as
defined in Section 2.20 below), setting forth its Commitment, and upon the
effectiveness of such New Lender Agreement, such New Lender (as defined in
Section 2.20 below) shall become a Lender
27
for all purposes and to the same
extent as if originally a party hereto and shall be bound by and entitled to the
benefits of this Agreement, and the signature pages hereof shall be deemed to be
amended to add the name of such New Lender, provided that the Commitment of any New
Lender shall be an amount not less than $5,000,000. Each New Lender Agreement shall
be irrevocable and shall be effective as of the applicable Anniversary Date.
(iv) The effectiveness of any New Lender Agreement or Commitment Increase
Agreement shall be contingent upon receipt by the Administrative Agent of such
corporate resolutions of the Borrower, legal opinions of counsel to the Borrower and
other reasonably requested documents as the Administrative Agent shall reasonably
request with respect thereto, in each case in form and substance reasonably
satisfactory to the Administrative Agent. Once a New Lender Agreement becomes
effective, the Administrative Agent shall reflect such agreements by appropriate
entries in the Register.
(v) If any bank or financial institution becomes a New Lender pursuant to a New
Lender Agreement or any Lender’s Commitment is increased pursuant to a Commitment
Increase Agreement, additional Loans made on or after the Re-Allocation Date (as
defined in Section 2.20 below) shall be made pro rata based on their
respective Commitments in effect on or after such Re Allocation Date (except to the
extent that any such pro rata borrowings would result in any Lender making an
aggregate principal amount of Loans in excess of its Commitment, in which case such
excess amount will be allocated to, and made by, such New Lender and/or Lenders with
such increased Commitments to the extent of, and pro rata based on, their respective
Commitments), and continuations of Loans outstanding on such Re Allocation Date
shall be effected by repayment of such Loans on the Re Allocation Date, and the
making of new Loans of the same Type pro rata based on the respective Commitments in
effect on and after such Re Allocation Date. Notwithstanding anything contained
herein to the contrary, any portion of the cumulative Commitments of the Declining
Lenders not allocated pursuant to Commitment Increase Agreement(s) and/or New Lender
Agreement(s) as set forth above shall be terminated on the Maturity Date that would
have occurred had the applicable Extension Request not been made and Borrower shall be required to make a
mandatory prepayment so that the Revolving Credit Exposures do no exceed the total
Commitments. Additionally, Borrower and the Lenders hereby authorize the
Administrative Agent to make Revolving Loans on behalf of the Borrower which are
necessary to eliminate the Revolving Credit Exposure of any Declining Lender as of
the date such Declining Lender’s Commitment terminates.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity
Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Termination Date and not more than thirty (30) days after such Swingline Loan is
made; provided that on each date that a Borrowing of a Revolving Loan is made, the Borrower shall
repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
28
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder and Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder, and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the
order of the payee named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing (including any Borrowing under a Swingline Loan) in whole or in part, subject to prior
notice in accordance with paragraph (b) of this Section; provided that each such prepayment shall
be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000.
(b) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving
Borrowing, not later than 11:00 a.m., New York City time, two Business Days before the date of
prepayment, or (ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.09, then such notice
of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial
prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender
a commitment fee, which shall accrue at the Applicable Rate on the average daily unused amount of
the Commitment of such Lender during the period from and including the date of this Agreement to
but excluding the date on which such Commitment terminates; provided that, if such Lender continues
to have any Revolving Credit Exposure after its Commitment terminates, then such commitment fee
shall continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued commitment fees shall be
29
payable in arrears on the last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur after the date hereof;
provided that any commitment fees accruing after the date on which the Commitments terminate shall
be payable on demand. All commitment fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to un-reimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate of one eighth of one percent (0.125%) per annum, on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to un-reimbursed LC
Disbursements) during the period from and including the Effective Date to but excluding the later
of the date of termination of the Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank’s standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation
fees and fronting fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Commitments terminate and any such fees accruing
after the date on which the Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) The Borrower agrees to pay to the Joint Bookrunners and Joint Lead Arrangers, for their
own account, fees payable in the amounts and at the times separately agreed upon between the
Borrower and the Joint Lead Arrangers and Joint Bookrunners.
(e) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders or to the Joint
Lead Arrangers and Joint Bookrunners, as applicable. Fees paid shall not be refundable under any
circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise
30
applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Commitments; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the
end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of
any Eurodollar Revolving Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.
(f) The Loans comprising Swingline Loans shall bear interest at the LIBO Rate plus the
Eurodollar Margin.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in
such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only
one Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate) or the Issuing Bank; or
31
(ii) impose on any Lender or the Issuing Bank or the London interbank market
any other condition affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such
Loan) or to increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as
the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or the
Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing
Bank’s holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing
Bank’s holding company with respect to capital adequacy), then from time to time the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or
the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an Event of Default),
(b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on
the date specified in any notice delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.11(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable
to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount
32
determined by such Lender to be the excess, if any, of (i) the amount
of interest which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period therefor (or, in
the case of a failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would bid were it to bid,
at the commencement of such period, for dollar deposits of a comparable amount and period from
other banks in the eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable Law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable Law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority, except to the extent such sums are determined by a
court of competent jurisdiction by final and non-appealable judgment to have resulted from the
gross negligence or willful misconduct of the Administrative Agent, the Issuing Bank or such
Lender, as applicable. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error. Neither the
Administrative Agent, the Issuing Bank nor any Lender shall be entitled to receive any payment with
respect to Indemnified Taxes that are incurred or accrued more than 180 days prior to the date such
party gives notice and demand with respect thereto to the Borrower.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower
33
(with a copy to the Administrative Agent), at the time or times prescribed by applicable
Law, such properly completed and executed documentation prescribed by applicable Law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate of withholding.
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section
2.17, it shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of the Administrative Agent or such Lender and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon
the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems confidential)
to the Borrower or any other Person.
(g) Each Lender and the Issuing Bank shall use its commercially reasonable efforts (consistent
with its internal policies and legal and regulatory restrictions) to select a jurisdiction for its
applicable lending office or change the jurisdiction of its applicable lending office, as the case
may be, so as to avoid the imposition of any Indemnified Taxes or Other Taxes or to eliminate or
reduce the payment of any additional sums under this Section 2.17; provided that no such
selection or change of the jurisdiction for its applicable lending office shall be made if, in the
sole judgment of such Lender or the Issuing Bank, as applicable, such selection or change would be
materially disadvantageous to such Lender or the Issuing Bank, as applicable.
(h) If the Administrative Agent or any Lender or Issuing Bank becomes entitled to receive
payment of Indemnified Taxes, Other Taxes or additional sums pursuant to this Section 2.17, it
shall give notice and demand thereof to the Borrower, and the Borrower (unless the Administrative
Agent, Lender or Issuing Bank shall withdraw such notice and demand or the Borrower is not
obligated to pay such amounts) shall pay such Indemnified Taxes, Other Taxes or additional sums
within 10 days after the Borrower’s receipt of such notice and demand.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.15, Section 2.16 or Section 2.17, or otherwise) prior to 12:00
noon, New York City time, on the date when due, in immediately available funds, without set off or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 0 Xxxxx Xxx, 0xx Xxxxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx
Xxxxxx, except payments to be made directly to the Issuing Bank as expressly provided herein and
except that payments pursuant to Section 2.15, Section 2.16, Section 2.17
and Section 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment
34
accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
dollars.
(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, un-reimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and un-reimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and un-reimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and participations in LC
Disbursements; provided that (i) if any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and (ii) the provisions
of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.06(e), Section 2.07(b), Section 2.18(d) or Section
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
35
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any un-reimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations
under this Agreement to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall
have received the prior written consent of the Administrative Agent (and if a Commitment is being
assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.15 or payments required to
be made pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.20. Increase of Commitments. (a) If, prior to and after giving effect to any increase in the Commitments pursuant to
this Section 2.20, no Default, Event of Default or Material Adverse Effect shall have occurred and
be continuing, the Borrower may at any time and from time to time, but in no event more than two
(2) times in any fiscal year, request an increase of the aggregate Commitments by notice to the
Administrative Agent in writing of the amount of such proposed increase (such notice, a
“Commitment Increase Notice”); provided, however, that (i) each such
increase shall be at least $25,000,000, (ii) the cumulative increase in Commitments pursuant to
this Section 2.20 shall not exceed $150,000,000, (iii) the Commitment of any Lender may not
be increased without such Lender’s consent, and (iv) the aggregate amount of the Lenders’
Commitments shall not exceed $450,000,000 without the approval of the Required Lenders. The
Administrative Agent shall, within five (5) Business Days after receipt of the Commitment Increase
Notice, notify each Lender of such request. Each Lender desiring to increase its Commitment shall
so notify the Administrative Agent in writing no later than twenty (20) days after receipt by the
Lender of such request. Any Lender that accepts an offer to it by the Borrower to increase its
Commitment pursuant to this Section 2.20 shall, in each case, execute an agreement (a
“Commitment Increase Agreement”), in substantially the form attached hereto as Exhibit B,
with the Borrower and the Administrative Agent, whereupon such Lender shall be bound by and
entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so
increased, and the definition of Commitment in Section 1.01 and Schedule 2.01
hereof shall be deemed to be amended to reflect such increase. Any Lender that does not notify the
Administrative Agent within such period that it will increase its Commitment shall be deemed to
have rejected such offer to increase its Commitment. No Lender shall have any obligation
whatsoever to agree to increase its Commitment. Any agreement to
36
increase a Lender’s pro rata
share of the increased Commitment shall be irrevocable and shall be effective upon notice thereof
by the Administrative Agent at the same time as that of all other increasing Lenders.
(b) If any portion of the increased Commitments is not subscribed for by such Lenders, the
Borrower may, in its sole discretion, but with the consent of the Administrative Agent as to any
Person that is not at such time a Lender (which consent shall not be unreasonably withheld or
delayed), offer to any existing Lender or to one or more additional banks or financial institutions
the opportunity to participate in all or a portion of such unsubscribed portion of the increased
Commitments pursuant to paragraph (c) below by notifying the Administrative Agent. Promptly and in
any event within five (5) Business Days after receipt of notice from the Borrower of its desire to
offer such unsubscribed commitments to certain existing Lenders, to the additional banks or to
financial institutions identified therein or such additional banks or financial institutions
identified by the Administrative Agent and approved by the Borrower, the Administrative Agent shall
notify such proposed lenders of the opportunity to participate in all or a portion of such
unsubscribed portion of the increased Commitments.
(c) Any additional bank or financial institution that the Borrower selects to offer
participation in the increased Commitments shall execute and deliver to the Administrative Agent a
New Lender Agreement (a “New Lender Agreement”), in substantially the form attached hereto
as Exhibit C, setting forth its Commitment, and upon the effectiveness of such New Lender
Agreement such bank or financial institution (a “New Lender”) shall become a Lender for all
purposes and to the same extent as if originally a party hereto and shall be bound by and entitled
to the benefits of this Agreement, and the signature pages hereof shall be deemed to be amended to
add the name of such New Lender and the definition of Commitment in Section 1.01 and
Schedule 2.01 hereof shall be deemed amended to increase the aggregate Commitments of the
Lenders by the Commitment of such New Lender, provided that the Commitment of any New
Lender shall be an amount not less than $5,000,000. Each New Lender Agreement shall be irrevocable
and shall be effective upon notice thereof by the Administrative Agent at the same time as that of
all other New Lenders.
(d) The effectiveness of any New Lender Agreement or Commitment Increase Agreement shall be
contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrower
and legal opinions of counsel to the Borrower as the Administrative Agent shall reasonably request
with respect thereto, in each case in form and substance reasonably satisfactory to the
Administrative Agent. Once a New Lender Agreement or Commitment Increase Agreement becomes
effective, the Administrative Agent shall reflect the increases in the Commitments effected by such
agreements by appropriate entries in the Register.
(e) If any bank or financial institution becomes a New Lender pursuant to Section
2.20(c) or any Lender’s Commitment is increased pursuant to Section 2.20(a), additional
Revolving Loans made on or after the effectiveness thereof (the “Re-Allocation Date”) shall
be made pro rata based on their respective Commitments in effect on or after such Re-Allocation
Date (except to the extent that any such pro rata borrowings would result in any Lender making an
aggregate principal amount of Revolving Loans in excess of its Commitment, in which case such
excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased
Commitments to the extent of, and pro rata based on, their respective Commitments), and
continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of
such Loans on the last day of the Interest Period applicable thereto or, in the case of ABR Loan,
on the date of such increase, and the making of new Loans of the same Type pro rata based on the
respective Commitments in effect on and after such Re-Allocation Date.
(f) If on any Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such
Eurodollar Loans shall remain outstanding with the respective holders thereof until the
37
expiration
of their respective Interest Periods (unless the Borrower elects to prepay any thereof in
accordance with the applicable provisions of this Agreement), and interest on and repayments of
such Eurodollar Loans will be paid thereon to the respective Lenders holding such Eurodollar Loans
pro rata based on the respective principal amounts thereof outstanding.
SECTION 2.21. Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to the Borrower on any Business Day during the period from the Effective Date
up to, but excluding, the Termination Date, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $25,000,000 or (ii) the sum of the total Revolving Credit Exposure exceeding the
Total Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan
to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 2:00 p.m. (Houston time), on the day
of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of a drawing under a Letter of Credit as
provided in Section 2.06(e), by remittance to the Issuing Bank) by 2:00 p.m. (Houston time) on the
requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 9:00 a.m. (Houston time) on any Business Day require the Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lender will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to each Bank, specifying
in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.07 with respect to Loans made
by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of
the proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the
38
Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
Borrower of any default in the payment thereof.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each Loan Party and each general partner or managing member of each Loan Party is (i) duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to carry on its business as now conducted,
and
(iii) is qualified to do business in, and is in good standing in, every jurisdiction where
such qualification is required, except in each case where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan Party’s corporate, partnership or limited liability
company powers and have been duly authorized by all necessary corporate, partnership or limited
liability company action. This Agreement and each Loan Document have been duly executed and
delivered by the Loan Parties thereto and constitute legal, valid and binding obligations of such
Loan Parties thereto, enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. No Undisclosed Liabilities. The Loan Parties have no material liabilities or obligations of any nature except for (i)
liabilities or obligations reflected or reserved against in the financial statements described in
Section 3.05 below or in the financial statements most recently delivered by the Parent
(or, if a Parent Event has occurred, the Borrower) pursuant to Section 5.01, as applicable,
(ii) current liabilities incurred in the ordinary course of business since the date of such
financial statements, (iii) liabilities or obligations that are not required to be included in
financial statements prepared in accordance with GAAP, and (iv) those set forth in Schedule
3.03 attached to this Agreement or previously disclosed in the Parent’s filings with the SEC or
otherwise disclosed in writing to the Administrative Agent and the Lenders.
SECTION 3.04. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have been obtained or made
and are in full force and effect, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of any Loan Party or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding upon any Loan Party or its assets, or give rise to a right thereunder
to require any payment to be made by any Loan Party, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any Loan Party.
SECTION 3.05. Financial Condition; No Material Adverse Change. (a) The Borrower has heretofore furnished to the Lenders the Parent’s consolidated balance
sheet and statements of income and cash flows (i) as of and for the fiscal year ended 2006,
reported on by Ernst & Young L.L.P., independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended December 31, 2006, certified by its chief
financial officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of
39
the Parent and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year end
audit adjustments and the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since December 31, 2006, no event has occurred that could reasonably expected to have a
Material Adverse Effect.
SECTION 3.06. Properties. (a) Each Loan Party has good title to, or valid leasehold interests in, all its real and
personal property material to its business, except for such defects in title that would not
reasonably be expected to have a Material Adverse Effect.
(b) Each Loan Party owns, or is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its business, and the use thereof by such Loan
Party does not infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.07. Litigation and Environmental Matters. (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened against or affecting any
Loan Party (i) as to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, would reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement
or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, no Loan Party (i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
SECTION 3.08. Compliance with Laws and Agreements. Each Loan Party is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.09. Investment Company Status. No Loan Party is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.
SECTION 3.10. Taxes. Each Loan Party has timely filed or caused to be filed all Tax returns and reports required
to have been filed and has paid or caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by appropriate proceedings and for which
such Loan Party has set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably
40
expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of the assets of such
Plan by an amount that would reasonably be expected to have a Material Adverse Effect, and the
present value of all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans by an amount that would reasonably be expected to
have a Material Adverse Effect.
SECTION 3.12. Disclosure. The Borrower has disclosed to the Lenders all agreements, instruments and corporate or
other restrictions to which any Loan Party is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect. Neither the Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that, with respect
to projected financial information, the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.13. Labor Matters. There are no strikes, lockouts or slowdowns against any Loan Party pending or, to the
knowledge of the Borrower, threatened that could reasonably be expected to have a Material Adverse
Effect. The hours worked by and payments made to employees of the Borrower and its Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other Law dealing with such
matters to the extent that such violation could reasonably be expected to have a Material Adverse
Effect.
SECTION 3.14. Subsidiaries. Schedule 3.14 lists, for each Subsidiary of the Borrower as of the date hereof, its
full legal name, its jurisdiction of organization, the number of shares of capital stock or other
Equity Interests outstanding and the owner(s) of such shares or Equity Interests. As of the date
hereof, Parent is the sole member of the Borrower and the Borrower is the sole Subsidiary of the
Parent.
SECTION 3.15. Margin Stock. No Loan Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation T, U or X of the Board), and no part of the proceeds of any Loan will be used
to purchase or carry any margin stock in violation of said Regulation T, U or X or to extend credit
to others for the purpose of purchasing or carrying margin stock in violation of said Regulation T,
U or X.
SECTION 3.16. Licenses and Permits. Each Loan Party possesses all licenses, permits, authorizations, registrations, approvals
and similar rights necessary under Law for such Person to conduct its operations as now being
conducted, each of such licenses, permits, authorizations, registrations, approvals and similar
rights is valid and subsisting, in full force and effect and enforceable by such Person, and such
Person is in compliance with all terms, conditions or other provisions of such permits,
authorizations, registrations, approvals and similar rights except where, in each case, such
failure to possess, such invalidity, or such noncompliance would not reasonably be expected to have
a Material Adverse Effect.
41
SECTION 3.17. Reportable Transaction. The Borrower does not intend to treat the Loans as being a “reportable transaction” (within
the meaning of Treasury Regulation Section 1.6011-4). In the event the Borrower determines to take
any action inconsistent with such intention, it will promptly notify the Administrative Agent
thereof. Furthermore, the Borrower acknowledges that one or more of the Lenders may treat its
Loans as part of a transaction that is subject to Treasury Regulation Section 1.6011-4 or Section
301.6112-1, and the Administrative Agent and such Lender or Lenders, as applicable, may file such
IRS forms or maintain such lists and other records as they may determine are required by such
Treasury Regulations.
SECTION 3.18. Intentionally Deleted.
SECTION 3.19. Senior Debt Status. As of the Effective Date, all Indebtedness outstanding under the Loan Documents constitutes
senior Indebtedness of the Borrower and ranks at least pari passu in priority of payment with all
other Indebtedness owed by the Borrower, except Indebtedness of the Borrower which may be secured
by Permitted Encumbrances permitted pursuant to Section 6.02.
SECTION 3.20. Leases. Each Lease to which any Loan Party is a party 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
have a Material Adverse Effect. Each lessee under the Leases is paying royalties currently due
under its respective Lease directly to Borrower or its Subsidiaries and, with the exception of
payment of the minimum royalties required thereunder, lessee has not prepaid any sums payable by
any lessee under any of the Leases, except to the extent such non-payment or prepayment could not
reasonably be expected to have a Material Adverse Effect. There is no consent or approval required
under any Lease with respect to this Agreement or the consummation of the Transactions which has
not been obtained.
SECTION 3.21. Solvency. After giving effect to the Loans and the terms of this Agreement, the Borrower is, and will
be, individually and together with (i) its Subsidiaries, and (ii) prior to the occurrence of a
Parent Event, the Parent, Solvent.
SECTION 3.22. Foreign Assets Control Regulation. Borrower’s use of the proceeds of the Loans will not violate the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
SECTION 3.23. Representations Regarding the Parent. Prior to the occurrence of a Parent Event (i) the Parent has not amended its charter or
by-laws or other constituent documents in any manner that would materially and adversely affect the
rights of the Lenders under this Agreement or their ability to enforce the same; (ii) the Parent
has not changed the end of its fiscal year to a date other than December 31; (iii) the Parent has
not engaged in any business that a master limited partnership would not be entitled to engage in
pursuant to applicable Law; (iv) the Parent has not made any changes to the Omnibus Agreement that
the Borrower and its Subsidiaries would be prohibited from making pursuant to Section 6.15
of this Agreement; and (v) the Parent has kept proper books of record and account in which full,
true and correct entries have been made of all dealings and transactions in relation to its
business and activities.
42
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement, a Guaranty Agreement executed by each of the Guarantors
and all other documents required by Lender in connection with this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement and all other documents required by Lender in connection with this
Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Xxxxxx Xxxxxx, LLP, counsel
for the Borrower, relating to the Parent, the Borrower and its Subsidiaries, this Agreement or the
Transactions and any other matters as the Required Lenders shall reasonably request. The Borrower
hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of the general counsel of the
Borrower, relating to the Parent, the Borrower and its Subsidiaries, this Agreement or the
Transactions and any other matters as the Required Lenders shall reasonably request.
(d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower, Parent and the General Partner, the authorization of the
Transactions and any other legal matters relating to the Borrower, Parent and the General Partner,
this Agreement or the Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(f) The Administrative Agent and the Joint Lead Arrangers and Joint Bookrunners shall have
received all fees and other amounts due and payable on or prior to the Effective Date, including,
to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(g) The Lenders shall have received (i) satisfactory audited consolidated financial statements
of the Parent and its Subsidiaries for the period ended December 31, 2006 and (ii) satisfactory
unaudited interim consolidated financial statements of the Borrower for each quarterly period ended
subsequent to the date of the latest financial statements delivered pursuant to clause (i)
immediately above as to which such financial statements are available.
(h) Each of the Guarantors shall have executed and delivered to the Administrative Agent for
the benefit of the Lenders a Guaranty Agreement substantially in the form of Exhibit “D”
attached hereto.
43
(i) No event shall have occurred since December 31, 2006 with respect to the Parent, the
Borrower and its Subsidiaries, taken as a whole, which has had, or could reasonably be expected to
have, a Material Adverse Effect.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02)
at or prior to 3:00 p.m., New York City time, on March 28, 2007 (and, in the event such conditions
are not so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth in this Agreement shall be
true and correct on and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, except to the extent any such
representation or warranty is stated to relate to an earlier date in which case such representation
and warranty will be true and correct on and as of such earlier date.
(b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements; Ratings Change and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Parent (or, if a Parent Event has
occurred, the Borrower), on XXXXX (or (i) upon the request of any Lender, the Borrower shall
provide a copy of such statement or report described below to any Lender that does not have access
to XXXXX, or (ii) if a Parent Event has occurred or such statement or report is no longer available
on XXXXX for any reason, a copy of such statement or report described below to each Lender and the
Administrative Agent), the Parent’s (or, if a Parent Event has occurred, the Borrower’s) audited
consolidated balance sheet and related statements of operations, partners’ capital and cash flows
as of the end of and for such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by Ernst & Young L.L.P. or other independent public
accountants of recognized national standing (without a “going concern” or like qualification or
exception and without any
44
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Parent, the Borrower and its consolidated Subsidiaries
(or, if a Parent Event has occurred, the Borrower and its consolidated Subsidiaries) on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal
year of the Parent on XXXXX (or (i) upon the request of any Lender, the Borrower shall provide a
copy of such statement or report described below to any Lender that does not have access to XXXXX,
or (ii) if a Parent Event has occurred or such statement or report is no longer available on XXXXX
for any reason, a copy of such statement or report described below to each Lender and the
Administrative Agent), the Parent’s (or, if a Parent Event has occurred, the Borrower’s)
consolidated balance sheet and related statements of operations and cash flows as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one of the Parent’s
(or, if a Parent Event has occurred, the Borrower’s) Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the Parent, the Borrower and
its consolidated Subsidiaries (or, if a Parent Event has occurred, the Borrower and its
consolidated Subsidiaries) on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.17 and Section 6.18, and (iii) stating
whether any change in GAAP or in the application thereof has occurred since the date of the last
audited financial statements delivered pursuant to Section 5.01(a) above and, if any such
change has occurred, specifying the effect of such change on the financial statements accompanying
such certificate;
(d) promptly after the same become publicly available, on XXXXX (or (i) upon the request of
any Lender, the Borrower shall provide a copy of such statement or report described below to any
Lender that does not have access to XXXXX, or (ii) if a Parent Event has occurred or such statement
or report is no longer available on XXXXX for any reason, a copy of such statement or report
described below to each Lender and the Administrative Agent) copies of all periodic and other
reports, proxy statements and other materials filed by the Parent, the Borrower or any Subsidiary
with the SEC, or with any national securities exchange, as the case may be; and
(e) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Parent, the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default of which Borrower has, or could reasonably be expected to
have, knowledge;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Parent, the Borrower or any Subsidiary thereof
that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
45
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in liability of the Parent, the Borrower and
its Subsidiaries in an aggregate amount that could reasonably be expected to have a Material
Adverse Effect; and
(d) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business except where the failure to do so in each case
could not reasonably be expected to have a Material Adverse Effect; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will cause each of its
Subsidiaries to, pay its obligations before the same shall become delinquent or in default,
including Tax liabilities, that, if not paid, could result in a Material Adverse Effect, except
where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP, and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition in accordance with industry practice, ordinary wear
and tear excepted, and (b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily maintained by companies engaged
in the same or similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice
and subject to applicable safety rules and regulations, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable times and as often
as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08.
Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only (i) to refinance amounts outstanding under the Original
Credit Agreement; (ii) to pay
the fees, expenses and other transaction costs of the Transactions contemplated hereby, (iii) to
fund
46
working capital needs, (iv) to fund acquisitions permitted hereunder and engage in other
transactions permitted hereby, and (v) for general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the regulations of the Board, including
Regulations T, U and X. Letters of Credit will be issued only to support the working capital needs
and general corporate obligations of the Borrower and its Subsidiaries relating to their respective
lines of business.
SECTION 5.09. Compliance with ERISA. In addition to and without limiting the
generality of Section 5.07, the Borrower shall, and shall cause its Subsidiaries to, (a) comply in
all material respects with all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all employee benefit plans (as defined in ERISA), (b)
not take any action or fail to take action the result of which could be (i) a liability to the PBGC
or (ii) a past due liability to any Multiemployer Plan, (c) not participate in any prohibited
transaction that could result in any civil penalty under ERISA or any tax under the Code, and (d)
operate each employee benefit plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as defined in Section 4980B
of the Code
except to the extent, in each case, where the failure to do so would not reasonably be
expected to result in a Material Adverse Effect. The Borrower shall, and shall cause its
Subsidiaries to, furnish to the Administrative Agent upon the Administrative Agent’s request such
additional information about any employee benefit plan sponsored, maintained or contributed to by
any of said Persons and/or the Parent, as may be reasonably requested by the Administrative Agent.
SECTION 5.10. Intentionally Deleted
SECTION 5.11. Compliance with Environmental Laws; Environmental Reports. (i) In
addition to and without limiting the generality of Section 5.07, the Borrower shall, and shall
cause its Subsidiaries to, (i) comply in all material respects with all Environmental Laws
applicable to its operations and real property except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (ii) obtain
and renew all material Governmental Approvals required under Environmental Laws applicable to its
operations and real property except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect; and (iii) conduct any Response
legally required by Borrower or any of its Subsidiaries in accordance with applicable Environmental
Laws except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.12. Further Assurances. The Borrower will, and will cause its Subsidiaries
to, at its own cost and expense, to promptly (i) correct any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof
and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and other instruments
the Administrative Agent may reasonably require from time to time in order to carry out more
effectively the purposes of the Loan Documents.
SECTION 5.13. Tax Shelter Regulations. If the Borrower determines to take any action
inconsistent with Section 3.17, the Borrower will promptly notify the Administrative Agent thereof
and will promptly deliver to the Administrative Agent a duly completed copy of IRS Form 8886 (or
any successor form). The Borrower acknowledges that, upon any such notification, any Lender may
treat its Loans hereunder as part of a transaction that is subject to Treasury Regulation Section
301.6112-1, and such Lender will maintain the lists and other records required by such Treasury
Regulation.
47
SECTION 5.14. Leases; Material Contracts. 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 have a Material Adverse Effect. The Borrower will promptly notify the Administrative
Agent in writing of the receipt by the Borrower or any Subsidiary of any notice from any third
party to the Borrower or any Subsidiary 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 or any Subsidiary from any third party to be
delivered to the Administrative Agent.
SECTION 5.15. 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.
SECTION 5.16. Guaranties. Immediately upon the formation or acquisition of any entity
which meets the definition of a Guarantor, such Guarantor shall execute and deliver to the
Administrative Agent for the benefit of the Lenders a Guaranty Agreement substantially in the form
of Exhibit “D” attached hereto; provided, however, that the following entities shall have
until June 1, 2007 to execute and deliver to the Administrative Agent the Guaranty Agreements:
Little River Transport, LLC, a Delaware limited liability company, and Xxxxxxxxxx Transport, LLC, a
Delaware limited liability company, provided however that upon satisfaction by the Borrower of the
conditions set forth in Section 9.17 hereof, the provisions of this Section 5.16
shall no longer be applicable.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) unsecured Indebtedness of the Borrower so long as the incurrence or maintenance of such
Indebtedness does not cause a Default or an Event of Default under any other provision of this
Agreement;
(c) Indebtedness existing on the date hereof and set forth in Schedule 6.01, and any
extensions, refinancing, renewals or replacements of any such Indebtedness; provided that such
Indebtedness is not increased in connection therewith except for increases in an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such extension, renewal, refinancing, or replacement and in an amount equal to any
existing commitments unutilized thereunder, and is not secured by any additional assets;
(d) purchase money Indebtedness (including Capital Lease Obligations) of the Borrower or any
of its Subsidiaries representing the portion of the purchase price of any office equipment, data
processing equipment (including, without limitation, computer and computer peripheral equipment),
trucks, tractors, trailers and other transportation equipment which may be secured by Liens
permitted
48
under Section 6.02; provided that the aggregate principal amount of
Indebtedness permitted by this clause (d) shall not exceed $25,000,000 at any time outstanding;
(e) any Indebtedness incurred or assumed in connection with any transaction or acquisition
permitted by Section 6.19 hereof;
(f) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or
any other Subsidiary;
(g) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary;
(h) Indebtedness consisting of surety bonds that the Borrower or any Subsidiary is required to
obtain in order to comply with applicable Law or the requirements of any Governmental Authority.
SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date
hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not apply
to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and any extensions, renewals and
replacements thereof;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be, and any extensions, renewals and replacements
thereof;
(d) Liens securing the Indebtedness permitted by clause (d) of Section 6.01 and placed
on the property described therein contemporaneously with the purchase thereof or within 90 days
thereafter, by the Borrower or any of its Subsidiaries to secure all or a portion of the purchase
price thereof; provided that such Lien shall not extend to any other property or assets of the
Borrower or its Subsidiaries;
(e) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) such security interests and the Indebtedness secured thereby
are incurred prior to or within 180 days after such acquisition or the completion of such
construction or improvement, (ii) the Indebtedness secured thereby does not exceed 100% of the cost
of acquiring, constructing or improving such fixed or capital assets and (iii) such security
interests shall not apply to any other property or assets of the Borrower or any Subsidiary;
49
(f) any interest or title of a lessor under any lease entered into by the Borrower or any of
its Subsidiaries in the ordinary course of its business and covering only the assets so leased, and
any interest of a landowner in the case of easements entered into by the Borrower or any of its
Subsidiaries in the ordinary course of its business and covering only the property subject to the
easement;
(g) Liens not otherwise permitted by this Section so long as the aggregate outstanding
principal amount of the obligations secured thereby does not exceed (as to the Borrower and all its
Subsidiaries) $25,000,000 at any one time;
(h) any Lien created or assumed by the Borrower or any Subsidiary in connection with the
issuance of Indebtedness, the interest on which is excludable from gross income of the holder of
such Indebtedness pursuant to the Code, for the purpose of financing, in whole or in part, the
acquisition or construction of property or assets to be used by the Borrower or its Subsidiaries;
(i) Liens on any additions, improvements, replacements, repairs, fixtures, appurtenances or
component parts thereof attaching to or required to be attached to property or assets pursuant to
the terms of any mortgage, pledge agreement, security agreement or other similar instrument,
creating a Lien upon such property or asset otherwise permitted under this Section;
(j) any Liens arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by any of the foregoing clauses of this Section,
provided that such Indebtedness is not increased except for increases in an amount equal to
a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such extension, renewal, refinancing, or replacement and in an amount equal to any
existing commitments unutilized thereunder, and is not secured by any additional assets; and
(k) Liens securing Indebtedness permitted by Section 6.01(e); provided that the
Indebtedness secured thereby does not exceed 100% of the fair market value of the assets or Equity
Interests acquired in such transaction or acquisition.
(l) Liens on deposit accounts and the cash therein not exceeding $30,000,000 in the aggregate
granted pursuant to (i) that certain Deposit Account Control Agreement among Adena Minerals, LLC, a
limited liability company organized under the laws of the State of Delaware, Little River
Transport, LLC (formerly known as Xxxxxxx Transport, LLC), a limited liability company organized
under the laws of the State of Delaware and Zions First National Bank to be entered into in
connection with the termination of the Tenancy-in-Common Agreement for Little River Transport, LLC,
(ii) that certain Deposit Account Control Agreement among Adena Minerals, LLC, a limited liability
company organized under the laws of the State of Delaware, Xxxxxxxxxx Transport, LLC, a limited
liability company organized under the laws of the State of Delaware, Xxxxxxxxxx Energy, LLC, a
limited liability company organized under the laws of the State of Delaware and Zions First
National Bank to be entered into in connection with the termination of the Tenancy-in-Common
Agreement for Xxxxxxxxxx Transport, LLC, and (iii) other similar deposit account control agreements
to be entered into in connection with the termination of Tenancy-in-Common Agreements for a party
to any such deposit account control agreement.
SECTION 6.03. Fundamental Changes. Neither the Borrower nor any Subsidiary will merge
or consolidate with or into any other Person nor shall any Subsidiary liquidate or dissolve, except
that if before and after giving effect to such merger or consolidation, there exists no Default or
Event of Default (A) the Borrower or any Subsidiary may merge or consolidate with any Person so
long as the Borrower or such Subsidiary is the surviving Person; (B) a Subsidiary may merge into
the Borrower in a transaction in which the Borrower is the surviving Person; (C) a Subsidiary may
merge into any other
50
Subsidiary; and (D) any Subsidiary may liquidate or dissolve if such
liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders.
SECTION 6.04. Investments, Loans, Advances and Guarantees. The Borrower will not, and
will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly-owned Subsidiary prior to such merger) any capital
stock, evidences of indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or Guarantee
any Indebtedness of, or make or permit to exist any investment or any other interest in, any other
Person, except that, so long as no Default or Event of Default shall have occurred and be
continuing or will result therefrom, the Borrower and its Subsidiaries may make:
(a) Permitted Investments;
(b) investments by the Borrower in the Equity Interests of its Subsidiaries and investments by
any Subsidiary in the Borrower or any other Subsidiary;
(c) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) investments consisting of non-cash consideration with respect to any sale of assets by the
Borrower or any Subsidiary;
(f) Swap Agreements to the extent permitted under Section 6.05;
(g) any purchases or other acquisitions of all or substantially all of the Equity Interests in
any Person permitted by Section 6.19; provided that, immediately upon consummation thereof,
such Person will be a Guarantor if required by Section 5.16 (including, without limitation,
as a result of a merger or consolidation otherwise permitted under this Agreement);
(h) investments consisting of extensions of credit, including without limitation, in the
nature of accounts receivable arising from the grant of trade credit or prepayments or similar
transactions entered into in the ordinary course of business and investments by the Borrower or any
Subsidiary in satisfaction or partial satisfaction thereof from financially troubled account
debtors to prevent or limit financial loss;
(i) to the extent not prohibited by Law, loans and advances to the officers, directors and
employees of the Borrower and its Subsidiaries made from time to time in the ordinary course of
business; provided that the aggregate amount of investments permitted by this clause (l) shall not
exceed $500,000 at anytime outstanding; and
(j) investments not otherwise permitted by this Section 6.04 in an aggregate amount
not to exceed $25,000,000 at anytime outstanding.
SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating
51
rate to
another floating rate, from floating to fixed rates or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary.
SECTION 6.06. Restricted Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payments, except that so long as no Default or Event of Default shall have occurred and
be continuing and provided that no Default or Event of Default would result from the making of such
Restricted Payment:
(i) any Subsidiary may make Restricted Payments to the Borrower or any
Subsidiary; and
(ii) the Borrower may declare, make or incur a liability to make distributions
to the Parent to fund Quarterly Distributions; provided that (A) such
Quarterly Distributions are made in accordance with the provisions of the
Partnership Agreement, 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.
SECTION 6.07. Transactions with Affiliates. Except as otherwise permitted hereunder,
the Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets
from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) as
permitted by the Partnership Agreement, and (b) transactions between or among the Borrower and its
Subsidiaries not involving any other Affiliate.
SECTION 6.08. Sales of Assets. Neither the Borrower nor any Subsidiary shall enter
into any arrangement, direct or indirect, with any Person other than a Loan Party 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 and the granting of any option or other right to
purchase or otherwise acquire property 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) shall not exceed, (A) from the
date hereof during any period of twelve (12) consecutive months more than $25,000,000 and (B)
during the term hereof more than $100,000,000, (iii) sales of wetlands credits, (iv) sales,
transfers or dispositions of property that are no longer commercially viable to maintain or
obsolete, surplus or worn-out property, whether now owned or hereafter acquired, (v) sales,
transfers or dispositions of equipment or real property to the extent that (A) such equipment or
real property is exchanged for credit against the purchase price of similar replacement equipment
or real property, or (B) the proceeds of such sales, transfers or dispositions are reasonably
promptly, but in any event within 360 days, applied to the purchase price of such replacement
equipment or real property, (vi) the sale, transfer or disposition of certain timber properties
more specifically described on Schedule 6.08, (vii) dispositions resulting from the bona
fide exercise by a Governmental Authority of its actual power of eminent domain or other
dispositions otherwise required by applicable law, and (viii) dispositions of property subject to a
Permitted Encumbrance that are transferred to a lienholder or its designee in satisfaction or
settlement of the lienholder’s claim or a realization upon a security interest permitted under this
Agreement..
SECTION 6.09. Constituent Documents. The Borrower will not, and will not permit any Subsidiary to, amend its charter or by-laws
or other constituent documents in any manner that would materially and adversely affect the rights
of the Lenders under this Agreement or their ability to enforce the same.
52
SECTION 6.10. Regulation T, U and X Compliance. The Borrower shall not and shall not
permit any Subsidiary to use the proceeds of the Loans to purchase or carry Margin Stock (as
defined in Regulation U), or otherwise act so as to cause any Lender, in extending credit
hereunder, to be in contravention of Regulations T, U or X.
SECTION 6.11. Sales and Leasebacks. Except to the extent such leases in the aggregate
would not require total payments of more than $10,000,000 per annum, the Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease of any property (whether real,
personal or mixed), whether now owned or hereafter acquired that (i) the Borrower or any of its
Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than the
Borrower or any of its Subsidiaries) or (ii) the Borrower or any of its Subsidiaries intends to use
for substantially the same purpose as any other property that has been or is to be sold or
transferred by the Borrower or any of its Subsidiaries to any Person (other than the Borrower or
any of its Subsidiaries) in connection with such lease.
SECTION 6.12. Changes in Fiscal Year. The Borrower shall not change the end of its
fiscal year to a date other than December 31.
SECTION 6.13. Change in the Nature of Business. The Borrower shall not engage
directly or indirectly in any business activity that would cause less than 90% of the gross income
of the Borrower to constitute “qualifying income” within the meaning of Section 7704(d) of the
Code.
SECTION 6.14. Limitation on Restrictions on Subsidiary Distributions. The Borrower
shall not, and shall not permit any of its Subsidiaries to enter into or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any Subsidiary to make
Restricted Payments in respect of any Equity Interests of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary; provided that (i) the foregoing
shall not apply to restrictions and conditions imposed by applicable Law or by this Agreement, (ii)
the foregoing shall not apply to restrictions and conditions existing on the date hereof (but shall
apply to any extension or renewal of, or any amendment or modification expanding the scope of, any
such restriction or condition) to the extent such restrictions are listed on Schedule 6.14
attached hereto, (iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, and (iv) the foregoing shall not apply to restrictions and conditions
contained in the documentation evidencing any Indebtedness permitted hereunder; provided
that in no event shall such restrictions and conditions contained in such documentation evidencing
such permitted Indebtedness be more restrictive than the restrictions and conditions set forth in
Section 6.06 of this Agreement and this Section 6.14.
SECTION 6.15. Changes to the Omnibus Agreement. Without the prior written consent of
the Administrative Agent, which consent shall not be unreasonably withheld or delayed, neither the
Borrower nor any of its Subsidiaries shall (i) make any material change to the terms of the 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, except in each case, where such change, release or failure could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.16. Changes to the Note Purchase Agreements. The Borrower will not agree
to, and will not permit any amendment to the Note Purchase Agreements which would (i) make the
covenants in Section 10 of the Note Purchase Agreements more restrictive on the Borrower than the
corresponding financial covenants in Section 6.17 and Section 6.18 hereof or (ii)
make the events of
53
default in Section 11 of the Note Purchase Agreements more restrictive on the
Borrower than the Events of Default hereunder, in each case, without the consent of the Required
Lenders; provided, however, that in no event shall the covenants set forth in Section 10 of the
Note Purchase Agreements and the events of default set forth in the Note Purchase Agreements as in
effect on the date hereof be deemed to be more restrictive than the corresponding covenants set
forth in Section 6.17 and Section 6.18 and the Events of Default hereunder. If
there is in existence a Default or Event of Default, the Borrower will not make any voluntary
prepayments of principal or interest on the notes outstanding under the Note Purchase Agreements.
SECTION 6.17. Minimum Interest Coverage Ratio. The Borrower shall not permit the
Interest Coverage Ratio as of the last day of any fiscal quarter to be less than 4.0 to 1.0.
SECTION 6.18. Maximum Leverage Ratio. The Borrower shall not permit the Leverage
Ratio as of the last day of any fiscal quarter to exceed 3.75 to 1.0; provided,
however, that, if during any one of the four fiscal quarters with respect to which the
Leverage Ratio is being determined, the Borrower or any Subsidiary has purchased or otherwise
acquired the Equity Interests of any Person or all or substantially all of the assets of any Person
in a transaction otherwise permitted by the terms of this Agreement (an “Acquisition”),
then the Leverage Ratio shall not exceed 4.0 to 1.0 with respect to (i) the fiscal quarter in which
the Acquisition occurred and (ii)(A) if such Acquisition occurs during the first half of such
fiscal quarter, the two fiscal quarters immediately following the fiscal quarter in which such
Acquisition occurred, or (B) if such Acquisition occurs during the second half of such fiscal
quarter, the three fiscal quarters immediately following the fiscal quarter in which such
Acquisition occurred.
SECTION 6.19. Permitted 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 Equity Interests in, any obligations or stock of, or any other interest
in, or all or substantially all of the assets of, any Person whatsoever unless (i) permitted by
Section 6.03 above, or (ii) (a) immediately prior to and after giving effect to any such purchase
or acquisition, no Default or Event of Default shall have occurred or be continuing or will result
therefrom, (b) such purchase or acquisition is consummated in accordance with applicable Law, and
(c) immediately after giving effect to such purchase or acquisition of a company or business
pursuant to this Section 6.19, the Borrower shall be in pro forma compliance with the covenants
set forth in Section 6.17 and Section 6.18 above, as evidenced by a certificate of the chief
financial officer of the Borrower delivered to the Administrative Agent on the earlier of (i) the
date that Borrower submits a Borrowing Request if Borrower is making a Borrowing in connection
therewith, or (ii) the date that Borrower consummates the transaction requiring the delivery of
such certificate.
ARTICLE VII
Events of Default
If any of the following events (“Events of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation
in respect of any LC Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of three Business Days;
54
(c) any representation or warranty made or deemed made by or on behalf of any Loan Party in or
in connection with this Agreement or any amendment or modification hereof or waiver hereunder, or
in any report, certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver hereunder, shall
prove to have been incorrect when made or deemed made;
(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to existence) or 5.08 or in
Article VI;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article)
or in any other Loan Document, and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower (which notice will be given at
the request of any Lender);
(f) any Loan Party shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and as the same shall become
due and payable or within any applicable grace period;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of any Loan Party or its debts,
or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator,
conservator or similar official for any Loan Party or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be entered;
(i) any Loan Party shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any Loan Party or for a substantial
part of its assets, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) any Loan Party shall become unable, admit in writing its inability or fail generally to
pay its debts as they become due;
(k) one or more final non-appealable judgments for the payment of money in an aggregate amount
in excess of $25,000,000 (net of insurance coverage which is reasonably expected to be paid by the
insurer thereunder as confirmed by such insurer) shall be rendered against any Loan Party or
55
any
combination thereof and the same shall remain undischarged for a period of 60 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of any Loan Party to enforce any such judgment
and is not released, vacated or fully bonded within 60 days after its attachment or levy;
(l) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability of the Parent, the Borrower
and its Subsidiaries in an aggregate amount that could reasonably be expected to have a Material
Adverse Effect;
(m) a Change in Control shall occur;
(n) this Agreement 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 or under the other Loan Documents to which it is a party;
(o) prior to the occurrence of a Parent Event, the Parent fails to keep in full force and
effect its legal existence and the rights, licenses, permits, privileges and franchises material to
the conduct of its business except where the failure to do so in each case could not reasonably be
expected to have a Material Adverse Effect; or
(p) prior to the occurrence of a Parent Event, any of the following events occur and continue
unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to
the Borrower (which notice will be given at the request of any Lender) (i) the Parent fails to pay
its obligations before the same shall become delinquent or in default, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect, except where (A) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (B) the Parent has set
aside on its books adequate reserves with respect thereto in accordance with GAAP, and (C) the
failure to make payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect; (ii) the Parent fails to permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable
prior notice and subject to applicable safety rules and regulations, to visit and inspect its
properties, to examine and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at such reasonable times
and as often as reasonably requested; (iii) the Parent fails to comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect; or (iv) (A) the Parent fails to comply in all material respects with
all applicable provisions of ERISA and the regulations and published interpretations thereunder
with respect to all employee benefit plans (as defined in ERISA), (B) the Parent takes any action,
or fails to take action, the result of which could be a liability to the PBGC or a past due
liability to any Multiemployer Plan, (C) the Parent participates in any prohibited transaction that
could result in any civil penalty under ERISA or any tax under the Code, or (D) the Parent does not
operate each employee benefit plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as defined in Section 4980B
of the Code except to the extent, in each case, where the failure to do so would not reasonably be
expected to result in a Material Adverse Effect;
then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and
56
thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or
exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02), and (c) except as expressly set forth
herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that
is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)
or in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.
57
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the consent of the Borrower (which consent shall not be unreasonably withheld,
conditioned or delayed), to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall
be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03 shall continue
in effect for the benefit of such retiring Administrative Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight
58
courier service, mailed by certified or registered mail or sent by telecopy (or sent by
email as set forth in Section 9.01(c) below), as follows:
(i) if to the Borrower, to it at 000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention of Xxxxxx X. Xxxxxx (Telecopy No. (000) 000-0000; Email address:
xxxxxxx@xxxxxxxxxxxxxxxx.xxx);
(ii) if to the Administrative Agent, to it at 0 Xxxxx Xxx, 0xx Xxxxx, Xxx
Xxxxxx, Xxxxxxxx 00000, Attention of Xxxxxxx Xxxxxx (Telecopy No. (000) 000-0000);
and
(iii) if to any other Lender, to it at its address (or telecopy number or email
address) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.
(c) The Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to a request for a new, or a conversion of an
existing, borrowing or other extension of credit (including any election of an interest rate or
interest period relating thereto), (ii) relates to the payment of any principal or other amount due
under the
Credit Agreement prior to the scheduled date therefor, (iii) provides notice of any
default or event of default under the
Credit Agreement, or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of the
Credit Agreement
and/or any borrowing or other extension of credit thereunder (all such non-excluded
communications being referred to herein collectively as “
Communications”), by transmitting
the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent
to “
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx”. In addition, the Borrower agrees to continue to
provide the Communications to the Agent in the manner specified in the Loan Documents but only to
the extent requested by the Administrative Agent.
The Borrower further agrees that the Administrative Agent may make the Communications
available to the Lenders by posting the Communications on Intralinks or a substantially similar
electronic transmission systems (the “Platform”). The Borrower acknowledges that the
distribution of material through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution.
The Platform is provided “as is” and “as available”. The Agent Parties (as defined below) do
not warrant the accuracy or completeness of the Communications, or the adequacy of the Platform and
expressly disclaim liability for errors or omissions in the Communications. No warranty of any
kind, express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the agent parties in connection with the
Communications or the Platform. In no event shall the Administrative Agent or any of its
affiliates or any of their respective officers, directors, employees, agents, advisors or
representatives (collectively, “Agent Parties”) have any liability to the
59
Borrower, any
Lender or any other person or entity for damages of any kind, including, without limitation, direct
or indirect, special, incidental or consequential damages, losses or expenses (whether in tort,
contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of
Communications through the internet, except to the extent the liability of any agent party is found
in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily
from such Agent Party’s gross negligence or willful misconduct.
The Administrative Agent agrees that the receipt of the Communications by the Agent at its
e-mail address set forth above shall constitute effective delivery of the Communications to the
Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the
next sentence) specifying that the Communications have been posted to the Platform shall constitute
effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each
Lender agrees to notify the Administrative Agent in writing (including by electronic communication)
from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by
electronic transmission, and (ii) that the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant to any Credit Document in any other manner specified in such
Credit Document.
(d) Any party hereto may change its address, telecopy number or email address for notices and
other communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice
or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v) release any Guarantor,
or (vi) change any of the provisions of this Section or the definition of “Required Lenders” or any
other provision hereof specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any
60
consent hereunder, without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing
Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank,
as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of one counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments, modifications or waivers of the
provisions hereof (whether or not the Transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Administrative
Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel
for the Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all
such out-of pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Joint Lead Arrangers and Joint
Bookrunners, the Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery
of this Agreement or any agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of the Transactions or
any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and non-appealable judgment
to have resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Issuing Bank under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent or the Issuing Bank, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable un-reimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the un-reimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Issuing Bank in its capacity as
such.
(d) Each Loan Party shall defend and indemnify the Administrative 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
61
or incurred by the Administrative Agent or any Lender which arise, result from or in any
way relate to a breach or violation by any Loan Party of any applicable Environmental Laws, either
prior to or subsequent to the date hereof, including the assertion or imposition of any Lien on any
Loan Party’s assets, or which relate to or arise out of any Environmental Liability. Each Loan
Party’s obligations hereunder shall survive the termination of this Agreement and the repayment of
the Loans.
(e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(f) All amounts due under this Section shall be payable not later than ten (10) days after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the
Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
or, if an Event of Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund; and
(C) the Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000, and in increments of $1,000,000
62
in excess
thereof, unless each of the Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if an Event
of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term “Approved Fund” has the
following meaning:
“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the Loans
and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, and
the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
63
(v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning
Lender or the assignee shall have failed to make any payment required to be made by
it pursuant to Section 2.06(d), Section 2.06(e), Section
2.07(b), Section 2.18(d) or Section 9.03(c), the Administrative
Agent shall have no obligation to accept such Assignment and Assumption and record
the information therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No assignment shall
be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent or the
Issuing Bank, sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification
or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section 9.02(b)
that affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Section 2.15, Section
2.16 and Section 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were
a Lender.
(i) A Participant shall not be entitled to receive any greater payment under
Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that (i) no
such pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto and (ii)
such Lender delivers to Borrower and Administrative Agent written notice thereof.
64
SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16,
2.17 and 9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the Transactions contemplated hereby, the repayment of the Loans,
the expiration or termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an executed counterpart of
a signature page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement,
65
or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and
the Lenders 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 the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent, the Issuing Bank or
any Lender on a non-confidential
66
basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the Administrative Agent, the
Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
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.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.
SECTION 9.15. Separateness. The Lenders acknowledge that (i) the Lenders have
advanced funds to the Borrower in reliance upon the separateness of the Parent and the Borrower
from each other and from any other Persons, and (ii) the Borrower has assets and liabilities that
are separate from those of other Persons, including the Parent.
SECTION 9.16. No Personal Liability of Directors, Officers, Employees and Unitholders.
No director, officer, partner, employee, member or manager of the General Partner will have any
liability for any obligations of the Borrower, or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Lender waives and releases all such liability.
This waiver and release are part of the consideration for the making of the Loans and the issuance
of Letters of Credit.
SECTION 9.17. Release of Guaranty Agreements. Upon satisfaction of the following conditions precedent, the Lenders will execute, at
Borrower’s expense, a release of all Guaranty Agreements: (a) Borrower achieves a public debt
rating of at least BBB- from S&P or Baa3 from Xxxxx’x; (b) at Borrower’s expense, this Agreement
and the other Loan Documents are amended in form and substance reasonably satisfactory to the
Required Lenders to provide for a limit equal to 10% of Borrower’s consolidated net tangible assets
on the sum of (i) consolidated secured Indebtedness of Borrower and its Subsidiaries and (ii)
unsecured Indebtedness of the Subsidiaries; and (c) no Default or Event of Default has occurred and
is continuing or would result under this Agreement or the other Loan Documents, as so amended.
67
SECTION 9.18. Renewal and Extension. The Indebtedness arising under this Agreement is
a renewal, extension and restatement on revised terms of (but not an extinguishment or novation of)
the Prior Indebtedness and, from and after the date hereof, the terms and provisions of the Prior
Credit Documents shall be superseded by the terms and provisions of this Agreement. Borrower
hereby agrees that (i) the Prior Indebtedness, all accrued and unpaid interest thereon, and all
accrued and unpaid fees under the Prior Credit Documents shall be deemed to be Indebtedness of
Borrower outstanding under and governed by this Agreement and (ii) all Liens, if any, securing the
Prior Indebtedness shall continue in full force and effect to secure the Indebtedness. On the
Effective Date, (i) the Administrative Agent shall and is hereby authorized and directed to
reallocate among the Lenders all Borrowings in accordance with the Lenders’ respective revised
Commitments hereunder (if any), and (ii) the Borrower shall make all necessary prepayments of
Borrowings necessary to effect such reallocation.
[END OF TEXT]
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
|
|
|
|
|
|
|
BORROWER: |
|
|
|
|
|
|
|
NRP (OPERATING) LLC, |
|
|
a Delaware limited liability company |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxxxx X. Xxxxxx |
|
|
|
|
|
|
|
|
|
Xxxxxx X. Xxxxxx, |
|
|
|
|
Chief Financial Officer |
|
|
|
|
|
|
|
CITIBANK, N.A., |
|
|
a national banking association |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxxx X. XxXxxxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxxx X. XxXxxxxx |
|
|
Title:
|
|
Vice President |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
WACHOVIA BANK, NATIONAL ASSOCIATION |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxxxxxx X. Xxxxxxxxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxxxxxx X. Xxxxxxxxxx |
|
|
Title:
|
|
Vice President |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
BANK OF MONTREAL |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxx XxxXxxx Xxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxx XxxXxxx Xxxx |
|
|
Title:
|
|
Director |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
BNP PARIBAS |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxx X. Xxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxx X. Xxx |
|
|
Title:
|
|
Managing Director |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxx Xxxxxxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxx Xxxxxxxx |
|
|
Title:
|
|
Vice President |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
BRANCH BANKING AND TRUST COMPANY |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxxxxx X. Xxxxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxxxxx X. Xxxxxx |
|
|
Title:
|
|
Senior Vice President |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
THE HUNTINGTON NATIONAL BANK |
|
|
|
|
|
|
|
By:
|
|
/s/ L. Xxxxx XxXxx |
|
|
|
|
|
|
|
Name:
|
|
L. Xxxxx XxXxx |
|
|
Title:
|
|
Vice President |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
COMERICA BANK |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxx Xxxxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxx Xxxxxx |
|
|
Title:
|
|
Corporate Banking Officer |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
COMPASS BANK |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxxxxx Xxxxxxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxxxxxx Xxxxxxxx |
|
|
Title:
|
|
Senior Vice President |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
ROYAL BANK OF CANADA |
|
|
|
|
|
|
|
By:
|
|
/s/ Xxx X. XxXxxxxxxxx |
|
|
|
|
|
|
|
Name:
|
|
Xxx X. XxXxxxxxxxx |
|
|
Title:
|
|
Authorized Signatory |
[Signature Page to Credit Agreement]
|
|
|
|
|
|
|
AMEGY BANK NATIONAL ASSOCIATION |
|
|
|
|
|
|
|
By:
|
|
/s/ W. Xxxxx Xxxxxxx |
|
|
|
|
|
|
|
Name:
|
|
W. Xxxxx Xxxxxxx |
|
|
Title:
|
|
Senior Vice President |
[Signature Page to Credit Agreement]
The undersigned (the “Credit Support Parties”) executed those certain Guaranty
Agreements, dated as of October 29, 2004 or those certain Guaranty Agreements dated as of February
27, 2007. The Credit Support Parties hereby acknowledge that they have reviewed the terms and
provisions of the Original Credit Agreement, the notes executed in connection herewith, the other
Loan Documents and this Agreement and consent to the amendment of the Original Credit Agreement
effected pursuant to this Agreement. The Credit Support Parties are executing this Agreement to
evidence their agreement that their obligations and agreements under said Guaranty Agreements are
hereby ratified, reaffirmed, brought forward, renewed and extended until the Obligations (as
defined in the Guaranty Agreements) shall have been fully paid and discharged.
The Credit Support Parties specifically reaffirm and extend their obligations under the
Guaranty Agreements to cover all Obligations as same have been created, amended and/or restated by
or in connection with this Agreement. The Guaranty Agreements and all the terms thereof shall
remain in full force and effect and the Credit Support Parties hereby acknowledge and agree that
same are valid and existing and that each of the Credit Support Parties’ obligations thereunder
shall not be impaired or limited by the execution or effectiveness of this Agreement. Each Credit
Support Party hereby represents and warrants that all representations and warranties contained in
this Agreement and the other Loan Documents to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the date of this Agreement, except to
the extent such representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of such earlier date.
Lender hereby preserves all its rights against the Credit Support Parties under the Guaranty
Agreements.
Each Credit Support Party acknowledges and agrees that (i) notwithstanding the conditions to
the effectiveness set forth in this Agreement, such Credit Support Party is not required by the
terms of the Original Credit Agreement, this Agreement or any other Loan Document to consent to the
amendments of the Original Credit Agreement effected pursuant to this Amendment and (ii) nothing in
the Original Credit Agreement, this Agreement or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments to this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
1
|
|
|
|
|
|
|
|
|
Credit Support
Parties:
|
|
|
WBRD LLC, |
|
|
a Delaware limited liability company; |
|
|
WPP LLC,
a Delaware limited liability company; |
|
|
ACIN LLC, |
|
|
a Delaware limited liability company; |
|
|
HOD LLC, |
|
|
a Delaware limited liability company; |
|
|
XXXXXXX MINERAL, LLC, |
|
|
a Delaware limited liability company; |
|
|
INDEPENDENCE LAND COMPANY LLC, |
|
|
a Delaware limited liability company; |
|
|
XXXXXXX XXXXX COAL COMPANY LLC, |
|
|
a Delaware limited liability company |
|
|
|
|
|
|
|
|
|
By: |
|
NRP (Operating) LLC, as sole Member of each |
|
|
|
|
of the above named entities |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Xxxxxx X. Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxxx X. Xxxxxx, |
|
|
|
|
|
|
Chief Financial Officer |
2
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit and
guarantees included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”). Such sale and assignment is
without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
|
|
|
|
|
1.
|
|
Assignor:
|
|
|
|
|
|
|
|
2.
|
|
Assignee:
|
|
|
|
|
|
|
[and is an Affiliate/Approved Fund of [identify Lender]1] |
|
|
|
|
|
3.
|
|
Borrower(s):
|
|
|
|
|
|
|
|
4.
|
|
Administrative Agent:
|
|
, as the administrative agent under the |
|
|
|
|
Credit Agreement |
|
|
|
|
|
5.
|
|
Credit Agreement:
|
|
[The [amount] Amended and Restated Credit Agreement dated as of |
|
|
|
|
among [name of Borrower(s)], the Lenders parties thereto, |
|
|
|
|
[name of Administrative Agent], as Administrative Agent, and the |
|
|
|
|
other agents parties thereto] |
Exhibit A -
Page 1
6. Assigned Interest:
|
|
|
|
|
|
|
|
|
Aggregate Amount of |
|
Amount of |
|
Percentage Assigned of |
Commitment/Loans |
|
Commitment/Loans |
|
Commitment/Loans2 |
for all Lenders |
|
Assigned |
|
|
|
|
$ |
|
$ |
|
|
|
|
% |
|
$ |
|
$ |
|
|
|
|
% |
|
$ |
|
$ |
|
|
|
|
% |
|
Effective
Date:
,
20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
|
|
|
|
|
ASSIGNOR |
|
|
|
|
|
|
|
[NAME OF ASSIGNOR] |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
ASSIGNEE |
|
|
|
|
|
|
|
[NAME OF ASSIGNEE] |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
2 |
|
Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder. |
Exhibit A -
Page 2
|
|
|
|
|
[Consented to and]3 Accepted: |
|
|
|
|
|
|
|
[NAME OF ADMINISTRATIVE AGENT], as |
|
|
Administrative Agent |
|
|
|
|
|
|
|
By |
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
[Consented to:]4 |
|
|
|
|
|
|
|
[NAME OF RELEVANT PARTY] |
|
|
|
|
|
|
|
By |
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
3 |
|
To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement. |
|
4 |
|
To be added only if the consent of the
Borrower and/or other parties (e.g. Issuing Bank) is required by the terms of
the Credit Agreement. |
Exhibit A -
Page 3
Annex 1 to Assignment and Assumption
[__________________]5
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment
|
|
|
5 |
|
Describe Credit Agreement at option of
Administrative Agent. |
Exhibit A -
Page 4
and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.
Exhibit A -
Page 5
EXHIBIT B
FORM OF COMMITMENT INCREASE AGREEMENT
This Commitment Increase Agreement dated as of [ ] (this “Agreement”) is among
(i) NRP (Operating) LLC (the “Borrower”), (ii) Citibank, N.A., in its capacity as administrative
agent (the “Administrative Agent”) under the Amended and Restated Credit Agreement dated as of
, 2007 (as the same may be amended or otherwise modified from time to time, the “Credit
Agreement”, capitalized terms that are defined in the Credit Agreement and not defined herein are
used herein as therein defined) among the Borrower, the Lenders party thereto, Citigroup Global
Markets, Inc. and Wachovia Bank, National Association, as Joint Lead Arrangers and Joint
Bookrunners, the Administrative Agent, and (iii) (the “Increasing Lender”).
Preliminary Statements
(A) Pursuant to Section 2.20 of the Credit Agreement, the Borrower has the right,
subject to the terms and conditions thereof, to effectuate from time to time an increase in
the total Commitments under the Credit Agreement by agreeing with a Lender to increase that
Lender’s Commitment.
(B) The Borrower has given notice to the Administrative Agent of its intention to
increase the total Commitments pursuant to such Section 2.20 by increasing the Commitment of
the Increasing Lender from $ to $ , and the Administrative Agent is willing
to consent thereto.
Accordingly, the parties hereto agree as follows:
SECTION 1. Increase of Commitment. Pursuant to Section 2.20 of the Credit Agreement, the
Commitment of the Increasing Lender is hereby increased from $ to
.
SECTION 2. Consent. The Administrative Agent hereby consents to the increase in the
Commitment of the Increasing Bank effectuated hereby.
SECTION 3. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the Laws of the State of New York.
SECTION 4. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.
SECTION 5. Increasing Lender Credit Decision. The Increasing Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any other Lender and based
on the financial statements referred to in Section 3.05 of the Credit Agreement or the most recent
financial statements delivered pursuant to Section 5.01 thereof and such other documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and to agree to the various matters set forth herein. The Increasing Lender also
acknowledges that it will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such
Exhibit B - Page 1
documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement.
SECTION 6. Representation and Warranties of the Borrower. The Borrower represents and
warrants as follows:
|
(a) |
|
The execution, delivery and performance by the Borrower of this Agreement are
within the Borrower’s corporate powers, have been duly authorized by all necessary
corporation action and do not contravene (i) the Borrower’s certificate of
incorporation or by-laws or (ii) any indenture, loan agreement or other similar
agreement or instrument binding on the Borrower. |
|
|
(b) |
|
No authorization, consent or approval any governmental body or agency is
required for the valid execution, delivery and performance by the Borrower of this
Agreement. |
|
|
(c) |
|
This Agreement constitutes a valid and binding agreement of the Borrower
enforceable against the Borrower in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
equitable principles of general applicability. |
|
|
(d) |
|
The aggregate amount of the Commitments under the Credit Agreement, including
any increases pursuant to Section 2.20 thereof, does not exceed $450,000,000. |
|
|
(e) |
|
No Default or Event of Default has occurred and is continuing. |
SECTION 7. Expenses. The Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent within ten Business Days after notice thereof in connection with the
preparation, negotiation, execution and delivery of this Agreement, including, without limitation,
the reasonable fees and out-of-pocket expenses of one counsel for the Administrative Agent with
respect thereto.
SECTION 8. Effectiveness. When, and only when, the Administrative Agent shall have received
counterparts of, or telecopied signature pages of, this Agreement executed by the Borrower, the
Administrative Agent and the Increasing Lender, this Agreement shall become effective as of the
date first written above.
Exhibit B - Page 2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunder duly authorized, as of the date first above written.
|
|
|
|
|
|
|
|
|
BORROWER: |
|
|
|
|
|
|
|
|
|
|
|
|
|
NRP (OPERATING) LLC, |
|
|
a Delaware limited liability company |
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ADMINISTRATIVE AGENT: |
|
|
|
|
|
|
|
|
|
CITIBANK, N.A., |
|
|
a national banking association |
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCREASING LENDER: |
|
|
|
|
|
|
|
|
|
[NAME OF INCREASING LENDER] |
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
Exhibit B - Page 3
EXHIBIT C
FORM OF NEW LENDER AGREEMENT
This
New Lender Agreement (this “Agreement”) dated as of [ ] is among
NRP (Operating) LLC (the “Borrower”), Citibank, N.A., in its capacity as administrative
agent (the “Administrative Agent”) under the Credit Agreement described below, and
[ ] (“New Lender”). Capitalized terms used herein without definition have the
meanings assigned to such terms in the Credit Agreement.
PRELIMINARY STATEMENTS
A. Pursuant to Section 2.20 of the Amended and Restated Credit Agreement dated as of
, 2007 (as the same may be amended or otherwise modified from time to time, the
“Credit Agreement”) among the Borrower, the Lenders from time to time party thereto, the
Administrative Agent and Citigroup Global Markets, Inc. and Wachovia Capital Markets, LLC, as Joint
Lead Arrangers and Joint Bookrunners, the Borrower has the right, subject to the terms and
conditions thereof, to effectuate from time to time an increase in the total Commitments under the
Credit Agreement by offering to Lenders and other bank and financial institutions the opportunity
to participate in all or a portion of the increased Commitments.
B. The Borrower has given notice to the Administrative Agent of its intention to increase the
total Commitments pursuant to such Section 2.20 by
$[ ]1, the Administrative
Agent is willing to consent thereto, and the existing Lenders have failed to subscribe to all of
such increased Commitment.
C. The New Lender desires to become a Lender under the Credit Agreement and extend Revolving
Loans to the Borrower in accordance with the terms thereof.
Accordingly, the parties hereto agree as follows:
SECTION 1. Loan Documents. The New Lender hereby acknowledges receipt of copies of
the Credit Agreement and the other Loan Documents.
SECTION 2. Joinder to Credit Agreement. By executing and delivering this Agreement,
the New Lender hereby agrees (i) to become a party to the Credit Agreement as a Lender as defined
therein and (ii) to be bound by all the terms, conditions, representations, and warranties of the
Credit Agreement and the other Loan Documents applicable to Lenders, and all references to the
Lenders in the Loan Documents shall be deemed to include the New Lender. Without limiting the
generality of the foregoing, the New Lender hereby agrees to make Revolving Loans to the Borrower
from time to time during the Availability Period in an aggregate principal amount that will not
result in the New Lender’s Revolving Credit Exposure exceeding its Commitment. The Commitment of
the New Lender shall be
$[ ]2.
SECTION 3. Consent. The Administrative Agent hereby consents to the participation of
the New Lender in the increased Commitment.
|
|
|
1 |
|
Must be at least $5,000,000. |
|
2 |
|
Must be at least $5,000,000. |
Exhibit C - Page 1
SECTION 4. Representation and Warranties of the Borrower. The Borrower represents and
warrants as follows:
(a) The execution, delivery and performance by the Borrower of this Agreement are
within the Borrower’s corporate powers, have been duly authorized by all necessary corporate
action on the part of the Borrower and do not contravene (i) the Borrower’s articles of
incorporation or by-laws or (ii) any indenture, loan agreement or other similar agreement or
instrument binding on the Borrower.
(b) No authorization, consent or approval of any Governmental Authority is required for
the valid execution, delivery and performance by the Borrower of this Agreement.
(c) This Agreement constitutes a valid and binding agreement of the Borrower
enforceable against the Borrower in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and equitable
principles of general applicability.
(d) The aggregate amount of the Commitments under the Credit Agreement, including any
increases pursuant to Section 2.20 thereof, does not exceed $450,000,000.
(e) No Default, Event of Default or Material Adverse Effect has occurred and is
continuing.
SECTION 5. Effectiveness. This Agreement shall become effective upon the receipt by
the Administrative Agent of the following:
(a) Counterparts of, or telecopied signature pages of, this Agreement executed by the
Borrower, the Administrative Agent and the New Lender;
(b) An Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the New Lender;
(c) If the New Lender is a Foreign Lender, any documentation required to be delivered
by the New Lender pursuant to Section 2.17 of the Credit Agreement, duly completed and
executed by the New Lender;
(d) If requested by the Administrative Agent, a certified copy of the resolutions of
the Board of Directors of the Borrower approving the increase in the Commitment and this
Agreement in a form reasonably acceptable to the Administrative Agent; and
(e) If requested by the Administrative Agent, a legal opinion from counsel to the
Borrower in a form reasonably acceptable to the Administrative Agent.
SECTION 6. New Lender Credit Decision. The New Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other Lender and based on
the financial statements referred to in Section 3.04 of the Credit Agreement or the most recent
financial statements delivered pursuant to Section 5.01 thereof and such other documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and to agree to the various matters set forth herein. The New Lender also
acknowledges that it will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and
Exhibit C - Page 2
information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement.
SECTION 7. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York without regard to any choice of law provision that
would require the application of the law of another jurisdiction.
SECTION 8. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts and may be delivered in
original or facsimile form, each of which when so executed and delivered shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
SECTION 9. Expenses. The Borrower shall pay all reasonable costs and expenses of the
Administrative Agent within ten Business Days notice thereof in connection with the preparation,
negotiation, execution and delivery of this Agreement, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto.
[Signatures on following page]
Exhibit C - Page 3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunder duly authorized, as of the date first above written.
|
|
|
|
|
|
|
|
|
BORROWER: |
|
|
|
|
|
|
|
|
|
|
|
|
|
NRP (OPERATING) LLC, |
|
|
a Delaware limited liability company |
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ADMINISTRATIVE AGENT: |
|
|
|
|
|
|
|
|
|
CITIBANK, N.A., |
|
|
a national banking association |
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCREASING LENDER: |
|
|
|
|
|
|
|
|
|
[NAME OF INCREASING LENDER] |
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
Exhibit C - Page 4
EXHIBIT D
FORM OF GUARANTY AGREEMENT
(Subsidiary)
THIS GUARANTY AGREEMENT (this Guaranty Agreement, together with the exhibits and schedules
hereto and all extensions, renewals, amendments, substitutions and replacements hereto and hereof,
is hereinafter referred to as the “Guaranty Agreement”) is dated as of the day of
, , by those undersigned parties named on the signature page hereof, each of
the foregoing being a guarantor herein (collectively, the “Guarantor”), to and for the benefit of
Citibank, N.A., in its capacity as Administrative Agent (in such capacity, together with its
successors and assigns, the “Administrative Agent”) for and on behalf of the Lenders party to the
Credit Agreement (as defined below).
WITNESSETH:
WHEREAS, the Lenders have agreed to make extensions of credit, including Revolving Loans and
Letters of Credit (collectively, the “Lender Indebtedness”), to NRP (Operating) LLC (the
“Borrower”) pursuant to that certain Amended and Restated Credit Agreement dated as of
, 2007, by and among the Borrower, the Lenders party thereto and the
Administrative Agent (the Credit Agreement. together with the exhibits and schedules thereto and
all extensions, renewals, waivers, consents, amendments, substitutions, and replacements thereto
and thereof, is hereinafter referred to as the “Credit Agreement”); and
WHEREAS, the Guarantor is a Subsidiary of the Borrower, and
WHEREAS, (i) the Letters of Credit may be issued under the Credit Agreement for the account of
the Guarantor and (ii) the proceeds of the Loans under the Credit Agreement may be used by the
Borrower to make loans or other advances to the Guarantor and for, inter alia, other general
corporate and partnership purposes of the Borrower and the Guarantor, all as permitted pursuant to
the Credit Agreement and all of which will directly and indirectly benefit the Borrower and the
Guarantor; and
WHEREAS, as a condition precedent to extending and maintaining credit to the Borrower pursuant
to the Credit Agreement, the Lenders have required, inter alia, the execution and delivery of this
Guaranty Agreement; and
WHEREAS, the Guarantor has determined, reasonably and in good faith, that (i) it has adequate
capital to conduct its business as presently conducted and as proposed to be conducted, (ii) it
will be able to meet its obligations hereunder and in respect of its existing and future
Indebtedness and liabilities (contingent or otherwise) as and when the same shall become due and
payable, including those under this Guaranty Agreement, (iii) it is otherwise Solvent and (iv) the
execution and delivery of this Guaranty Agreement and the consummation of the transactions
contemplated hereby will not render it insolvent; and
WHEREAS, the Guarantor has determined that the execution and delivery of this Guaranty
Agreement is in furtherance of its corporate purposes and in its best interest and that it will
derive substantial benefit, whether directly or indirectly, from the making of this Guaranty
Agreement, having regard for all relevant facts and circumstances; and
Exhibit D - Page 1
WHEREAS, the Guarantor has agreed to execute and deliver this Guaranty Agreement to the
Administrative Agent, for the benefit of the Lenders and the Administrative Agent.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration for the Administrative Agent and the Lenders making the
above-described extensions of credit to the Borrower and intending to be legally bound hereby, the
Guarantor hereby covenants and agrees as follows:
ARTICLE I
RECITALS; INCORPORATION BY REFERENCE;
DEFINITIONS AND OTHER CONVENTIONS
1.1 Recitals. The foregoing recitals are hereby incorporated into and made a material
part of this Guaranty Agreement.
1.2 Defined Terms. Capitalized terms used herein but not defined herein shall have the
meaning ascribed to them in the Credit Agreement.
1.3 Definitional Conventions.
(i) The words “hereof”, “herein”, “hereunder” and “hereto” and words of similar import when
used in this Guaranty Agreement shall refer to this Guaranty Agreement as a whole and not to any
particular provision of this Guaranty Agreement, and Article, Section, subsection, paragraph, item,
exhibit and schedule references are to this Guaranty Agreement unless otherwise specified.
(ii) All terms defined in this Guaranty Agreement in the singular shall have comparable
meanings when used in the plural, and vice versa, unless otherwise specified.
ARTICLE II
GUARANTY
2.1 Unconditional Guaranty. The Guarantor unconditionally, absolutely and irrevocably
guarantees to the Administrative Agent and each Lender and each Affiliate of each Lender, and
becomes surety, as though it was a primary obligor for, the full and punctual payment and
performance when due (whether on demand, at stated maturity, by acceleration, or otherwise and
including any amounts which would become due but for the operation of an automatic stay under the
federal bankruptcy code of the United States or any similar laws of any country or jurisdiction) of
all Lender Indebtedness, including, without limiting the generality of the foregoing, all
obligations, liabilities, and indebtedness from time to time of the Borrower or any other Guarantor
to the Administrative Agent or any of the Lenders or any Affiliate of any Lender under or in
connection with the Credit Agreement or any other Loan Document, whether for principal, interest,
fees, indemnities, expenses, or otherwise, and all refinancings or refundings thereof, whether such
obligations, liabilities, or indebtedness are direct or indirect, secured or unsecured, joint or
several, absolute or contingent, due or to become due, whether for payment or performance, now
existing or hereafter arising (and including obligations, liabilities, and indebtedness arising or
accruing after the commencement of any bankruptcy, insolvency, reorganization, or similar
proceeding with respect to the Borrower or any Guarantor or which would have arisen or accrued but
for the commencement of such proceeding, even if the claim for such obligation, liability, or
indebtedness is not enforceable or allowable in such proceeding, and including all Lender
Indebtedness, liabilities, and indebtedness arising from any extensions of credit under or in
connection with the Loan Documents from
Exhibit D - Page 2
time to time, regardless of whether any such extensions of credit are in excess of the amount
committed under or contemplated by the Loan Documents or are made in circumstances in which any
condition to any extension of credit is not satisfied) (all of the foregoing obligations,
liabilities and indebtedness, including but not limited to Lender Indebtedness, are referred to
herein collectively as the “Obligations” and each as an “Obligation”). Without limitation of the
foregoing, any of the Obligations shall be and remain Obligations entitled to the benefit of this
Guaranty Agreement if the Administrative Agent or any of the Lenders (or any one or more assignees
or transferees thereof) from time to time assign or otherwise transfer all or any portion of their
respective rights and obligations under the Loan Documents, or any other Obligations, to any other
Person.
2.2 Independent Obligations. The Guarantor’s Obligations hereunder are independent of
the obligations of the Borrower under the Credit Agreement or any other Loan Document. A separate
action or actions may be brought and prosecuted against the Guarantor, whether or not action is
brought against the Borrower or any other guarantor or whether or not the Borrower or any other
guarantor is joined in such action or actions.
2.3 Not a Collection Guaranty. This Guaranty Agreement is a guaranty of payment and
not a guaranty of collection. The Guarantor waives any right to require the Administrative Agent at
any time to (i) proceed against the Borrower or any other guarantor now or hereafter guaranteeing
any obligations under any of the Loan Documents, (ii) proceed against or exhaust any security for
the Lender Indebtedness or (iii) pursue any other remedy in the Administrative Agent’s or any
Lender’s power whatsoever.
2.4 Right to Deal With Lender Indebtedness and Security. The Guarantor authorizes the
Administrative Agent, without notice or demand and without affecting the Guarantor’s liability
hereunder, from time to time to (i) increase, enlarge, renew, compromise, extend, accelerate or
otherwise change the time for payment or the terms of the Lender Indebtedness or any part thereof,
including an increase or decrease of the rate of interest thereon, and including, without
limitation, increases, enlargements, renewals, compromises, extensions, accelerations and
modifications made after any revocation of this Guaranty Agreement, (ii) deal with the Lender
Indebtedness and any security therefor in any manner it may see fit, (iii) accept partial payments
on account of the Lender Indebtedness and (iv) demand or receive additional security for the Lender
Indebtedness. The Guarantor acknowledges that the Administrative Agent, for and on behalf of the
Lenders and the Administrative Agent, has now and may have in the future certain security for, and
other Guarantees of, all or any part of the Lender Indebtedness, but it is specifically understood
and agreed by the Guarantor that neither the execution and delivery of this Guaranty Agreement nor
the holding of any security or any other Guarantee shall at any time or in any respect operate to
prevent or hinder the Administrative Agent and/or the Lenders from resorting first to such other
security and/or other Guarantee, or first to this Guaranty Agreement, or first from time to time to
both. In addition, the Administrative Agent and/or the Lenders may, from time to time as they see
fit, resort to this Guaranty Agreement without resorting to any other security for and/or other
Guarantee of the Lender Indebtedness, or to all or any part of any security and/or any other
Guarantee securing the Lender Indebtedness, without resorting to this Guaranty Agreement, and such
action on the Administrative Agent’s and/or the Lenders’ part shall not in any respect be
considered as a waiver of any of the benefits or rights of the Administrative Agent or the Lenders
relating to this Guaranty Agreement or such other security and/or other Guarantees.
2.5 Default Under Credit Agreement. The Guarantor hereby acknowledges and agrees that
any violation by it of the terms, conditions, representations, warranties and covenants set forth
herein, or any contest by it of the validity or enforcement hereof or any denial of liability
hereunder shall constitute an Event of Default under the Credit Agreement.
Exhibit D - Page 3
2.6 Consent to Releases. The Guarantor consents, without notice and without affecting
the Guarantor’s liability hereunder, to the release of (i) all or any part of the security, if any,
for the Lender Indebtedness or the substitution of all or any part of such security, (ii) any party
liable for all or any part of the Lender Indebtedness and (iii) any other guarantor of the Lender
Indebtedness or portions thereof.
2.7 Bankruptcy of Borrower. Neither the Guarantor’s Obligations under this Guaranty
Agreement nor any remedy for the enforcement hereof shall be impaired, modified, changed, released
or limited in any manner whatsoever by the bankruptcy of the Borrower or by any impairment,
modification, change, release or limitation of (i) the liability of the Borrower under any of the
Loan Documents, any party assuming the obligations of the Borrower under any of the Loan Documents
or the Borrower’s estate in bankruptcy, or (ii) any remedy for the enforcement of the Credit
Agreement or any other Loan Document which results from the operation of any present or further
provision of any bankruptcy act, state or Federal law, common law or equitable cause or from the
decision of any court. The Guarantor agrees that to the extent that the Borrower or any other
Person liable for all or any part of the Lender Indebtedness makes a payment or payments to the
Lenders, which payment or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be paid to a trustee, receiver or any
other party under any bankruptcy act, state or Federal law, common law or equitable cause, then to
the extent of such payment the Guarantor’s Obligations or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had not been made
notwithstanding the termination of this Guaranty Agreement.
2.8 Continuing Nature of Guaranty. This Guaranty Agreement is a continuing obligation
of the Guarantor and shall remain in full force and effect notwithstanding that no Obligations may
be outstanding from time to time and notwithstanding any other event or circumstance. Upon
termination of all Commitments and the expiration of all Letters of Credit and indefeasible payment
in full of all Obligations, this Guaranty Agreement shall terminate; provided, however, that this
Guaranty Agreement shall continue to be effective or be reinstated, as the case may be, any time
any payment of any of the Obligations is rescinded, recouped, avoided, or must otherwise be
returned or released by any Lender or Administrative Agent upon or during the insolvency,
bankruptcy, or reorganization of, or any similar proceeding affecting, Borrower or for any other
reason whatsoever, all as though such payment had not been made and was due and owing.
2.9 Waiver of Guarantor’s Defenses. The Guarantor waives any defense arising by reason
of any disability or other defense whatsoever to the liability of the Borrower. Until all Lender
Indebtedness shall have been paid in full, even though such Lender Indebtedness may be in excess of
the Guarantor’s liability hereunder, the Guarantor waives (i) any right to enforce any remedy which
the Administrative Agent, for or on behalf of the Lenders and the Administrative Agent, now has or
may hereafter have against the Borrower, (ii) any benefit of, and any right to participate in, any
security now or hereafter held by the Administrative Agent, for and on behalf of the Lenders and
the Administrative Agent, (iii) any right the Guarantor might otherwise have to the marshalling of
the assets of the Borrower, (iv) any right to the filing of any claim against the Borrower or any
other Person in the event of any bankruptcy, insolvency, reorganization or similar proceeding, or
to the exercise against the Borrower or any other Person of any other right or remedy under or in
connection with any Loan Document or any of the Obligations or any direct or indirect security for
any of the Obligations, (v) any requirement to exhaust any remedies under or in connection with, or
to mitigate the damages resulting from default under, any Loan Document or any of the Obligations
or any direct or indirect security for any of the Obligations, (vi) any defense or other right
arising by reason of any law now or hereafter in effect in any jurisdiction pertaining to election
of remedies (including but not limited to anti-deficiency laws, “one action” laws or the like), or
by reason of any election of remedies or other action or inaction by the Administrative Agent or
the Lenders, or any of them (including but not limited to commencement or completion of any
judicial proceeding or non-judicial sale or other action in respect of collateral security for any
of the Obligations),
Exhibit D - Page 4
which results in denial or impairment of the right of the Administrative Agent or the Lenders,
or any of them, to seek a deficiency against the Borrower or any other Person or which otherwise
discharges or impairs any of the Obligations, and (vii) any and all defenses it may now or
hereafter have based on principles of suretyship, impairment of collateral, or the like. The
Guarantor also waives any notice required by any Law, all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor, any notice of the
incurrence of any Obligation, and notices of acceptance of this Guaranty Agreement. This Guaranty
Agreement shall remain in full force and effect irrespective of:
(i) the genuineness, legality, allowability (in a bankruptcy, insolvency, reorganization or
similar proceeding, or otherwise), avoidance, subordination, in whole or in part, validity or
enforceability of, the Credit Agreement, any application and agreement for any Letter of Credit,
any other Loan Document or any other instruments relating thereto or any of the terms of any
thereof, the continuance of any obligation on the part of the Borrower or any other Person under
the Credit Agreement, any application and agreement for any Letter of Credit, or any other Loan
Document or the power or authority or the lack of power or authority of the Borrower to execute and
deliver the Credit Agreement, any application and agreement for any Letter of Credit, and the other
Loan Documents to which it is a party or to perform any of its obligations thereunder, or the
existence or continuance of the Borrower or any other Person as a legal entity; or
(ii) any default, failure or delay, willful or otherwise, in the performance by the Borrower
or any other Person of any obligations of any kind or character whatsoever of the Borrower or any
other Person (including, without limitation, the obligations and undertakings of the Borrower or
any other Person under the Credit Agreement, any application and agreement for any Letter of
Credit, or the other Loan Documents); or
(iii) any increase, decrease, or change in the amount, nature, type or purpose of any of the
Obligations (whether or not contemplated by the Loan Documents as presently constituted); any
change in the time, manner, method, or place of payment or performance of, or in any other term of,
any of the Obligations; any execution or delivery of any additional Loan Documents; or any
amendment, modification or supplement to, or refinancing or refunding of, any Loan Document or any
of the Obligations; or
(iv) any failure to assert any breach of or default under any Loan Document or any of the
Obligations; any extensions of credit in excess of the amount committed under or contemplated by
the Loan Documents, or in circumstances in which any condition to such extensions of credit has not
been satisfied; any other exercise or non-exercise, or any other failure, omission, breach,
default, delay, or wrongful action in connection with any exercise or non-exercise, of any right or
remedy against the Borrower or any other Person under or in connection with any Loan Document or
any of the Obligations; any refusal of payment or performance of any of the Obligations, whether or
not with any reservation of rights against any Guarantor; or any application of collections
(including but not limited to collections resulting from realization upon any direct or indirect
security for the Obligations) to other obligations, if any, not entitled to the benefits of this
Guaranty Agreement, in preference to Obligations entitled to the benefits of this Guaranty
Agreement, or if any collections are applied to Obligations, any application to particular
Obligations; or
(v) any taking, exchange, amendment, modification, supplement, termination, subordination,
release, loss, or impairment of, or any failure to protect, perfect, or preserve the value of, or
any enforcement of, realization upon, or exercise of rights, or remedies under or in connection
with, or any failure, omission, breach, default, delay, or wrongful action by the Administrative
Agent or the Lenders, or any of them, or any other Person in connection with the enforcement of,
realization upon, or exercise
Exhibit D - Page 5
of rights or remedies under or in connection with, or, any other action or inaction by any of
the Administrative Agent or the Lenders, or any of them, or any other Person in respect of, any
direct or indirect security for any of the Obligations. As used in this Guaranty Agreement, “direct
or indirect security” for the Obligations, and similar phrases, includes any collateral security,
guaranty, suretyship, letter of credit, capital maintenance agreement, put option, subordination
agreement, or other right or arrangement of any nature providing direct or indirect assurance of
payment or performance of any of the Obligations, made by or on behalf of any Person; or
(vi) any defense, setoff, or counterclaim which may at any time be available to or be asserted
by the Borrower or any other person with respect to any Loan Document or any of the Obligations; or
any discharge by operation of law or release of the Borrower or any other Person from the
performance or observance of any Loan Document or any of the Obligations; or
(vii) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the
Borrower or any other Person or in respect of the property of the Borrower or any other Person or
any merger, consolidation, reorganization, dissolution, liquidation or winding up of the Borrower
or any other Person; or
(viii) impossibility or illegality of performance on the part of the Borrower or any other
Person of its obligations under the Credit Agreement, any application and agreement for any Letter
of Credit, or the other Loan Documents; or
(ix) in respect of the Borrower or any other Person, any change of circumstances, whether or
not foreseen or foreseeable, whether or not imputable to the Borrower or any other Person, or other
impossibility of performance through fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), act of terrorism, civil commotions, acts of
God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials,
action of any federal or state regulatory body or agency, change of law or any other causes
affecting performance, or any other force majeure, whether or not beyond the control of the
Borrower or any other person and whether or not of the kind specified herein; or
(x) any attachment, claim, demand, charge, lien, order, process, setoff, encumbrance or any
other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or
diminution at the source, by reason of any taxes, assessments, expenses, indebtedness, obligations
or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or
against any Person, or any claims, demands, charges or liens of any nature, foreseen or unforeseen,
incurred by any Person, or against any sums payable under this Guaranty Agreement, so that such
sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(xi) any order, judgment, decree, ruling or regulation (whether or not valid) of any
Governmental Authority or any other action, happening, event or reason whatsoever which shall
delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by any
party of its respective obligations under the Credit Agreement, any application and agreement for
any Letter of Credit, or any other Loan Document; or
(xii) the failure of the Guarantor to receive any benefit from or as a result of its
execution, delivery and performance of this Guaranty Agreement; or
(xiii) any failure or lack of diligence in collection or protection, failure in presentment or
demand or payment, protest, notice of protest, notice of default and of nonpayment, any failure to
give notice to the Guarantor or failure of the Borrower or any other Person to keep and perform any
obligation,
Exhibit D - Page 6
covenant or agreement under the terms of the Credit Agreement, any application and agreement
for any Letter of Credit, or any other Loan Document, or failure to resort for payment to the
Borrower or to any other Person or to any other Guarantee or to any property, security, liens or
other rights or remedies; or
(xiv) the acceptance of any additional security or other Guarantee, the advance of additional
money to the Borrower or any other Person, the renewal or extension of the Credit Agreement, any
application and agreement for any Letter of Credit, or any other Loan Document, or the sale,
release, substitution or exchange of any security for the Lender Indebtedness including without
limitation, the release of collateral under any Loan Document; or
(xv) any defense whatsoever that the Borrower or any other Person might have to the payment of
the Lender Indebtedness (principal, premium, if any, or interest), or to the performance or
observance of any of the provisions of the Credit Agreement, any application and agreement for any
Letter of Credit, or any other Loan Document, whether through the satisfaction or purported
satisfaction by the Borrower or any other Person of its debts due to any cause such as bankruptcy,
insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation,
winding-up or otherwise; or
(xvi) any act or failure to act with regard to the Credit Agreement, any application and
agreement for any Letter of Credit, or any other Loan Document, or anything which might vary the
risk of the Guarantor; or
(xvii) any other circumstance which might otherwise constitute a defense available to, or a
discharge of, the Guarantor in respect of the obligations of the Guarantor under this Guaranty
Agreement:
provided, however, that the specific enumerations of the above-mentioned acts,
failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though
not specifically mentioned above, it being the purpose and intent of this Guaranty Agreement that
the obligations of the Guarantor shall be absolute and unconditional and shall not be discharged,
impaired or varied except by the payment of the principal of and interest on the Lender
Indebtedness in accordance with their respective terms and any other Obligations whenever the same
shall become due and payable as provided in the Credit Agreement, at the place specified in and all
in the manner and with the effect specified in the Credit Agreement and the other Loan Documents.
Without limiting the foregoing, it is understood that repeated and successive demands may be made
and recoveries may be had hereunder as and when, from time to time, the Borrower shall default
under the terms of the Credit Agreement, any application and agreement for any Letter of Credit, or
any other Loan Document, and that notwithstanding recovery hereunder for or in respect of any given
default or defaults by the Borrower under the Credit Agreement, any application and agreement for
any Letter of Credit, or any other Loan Document to which it is a party, this Guaranty Agreement
shall remain in full force and effect and shall apply to each and every subsequent default.
2.10 Subordination of Borrower’s Indebtedness. Any Indebtedness of the Borrower now or
hereafter owed to or held by the Guarantor is hereby subordinated to the Lender Indebtedness. Any
Indebtedness of the Borrower due to the Guarantor, if the Required Lenders so request, shall be
collected, enforced and received by the Guarantor, as trustee for the Administrative Agent, on
behalf of the Lenders and the Administrative Agent, and be paid over to the Administrative Agent,
for and on behalf of the Lenders and the Administrative Agent, on account of the Lender
Indebtedness but without affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty Agreement.
2.11 Postponement of Subrogation and Contribution. Until the Lender Indebtedness is
irrevocably paid in full, Guarantor agrees not to exercise any claim or other right which it may
now or hereafter acquire against the Borrower that arises from the existence or performance of the
Guarantor’s Obligations under this Guaranty Agreement or any of the other Loan Documents to which
the Guarantor
Exhibit D - Page 7
is a party, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any claim or remedy of the
Lenders against the Borrower or any collateral which the Lenders hereafter acquire, whether or not
such claim, remedy or right arises in equity or under contract, statute or common law, by any
payment made hereunder or otherwise, including without limitation, the right to take or receive
from the Borrower, directly or indirectly, in cash or other property or by setoff or in any other
manner, payment or security on account of such claim or other right. Until the Lender Indebtedness
is irrevocably paid in full, the Guarantor agrees that it will not exercise any rights which it may
acquire by way of contribution under this Guaranty Agreement or any of the Loan Documents, by any
payment made hereunder or otherwise. If any amount shall be paid to the Guarantor in violation of
the preceding two sentences and the Guarantor’s Obligations shall not have been paid in full, such
amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for
the Administrative Agent for the benefit of the Lenders and shall forthwith be paid to the
Administrative Agent for the benefit of the Lenders to be credited and applied to the Lender
Indebtedness, whether matured or unmatured.
2.12 Setoff. If an Event of Default shall have occurred and be continuing, each Lender
and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Guarantor against any of and all the
obligations of the Guarantor now or hereafter existing under this Guaranty Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand under the Credit
Agreement or this Guaranty Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies (including other rights
of setoff) which such Lender may have.
2.13 Payments Under Guaranty. In the event that any amounts become due hereunder, the
Administrative Agent shall give notice to the Guarantor. The Guarantor promises to immediately pay
such amount herein guaranteed upon demand of the Administrative Agent, in immediately available
funds, to the Administrative Agent at the Administrative Agent’s office at 0 Xxxxx Xxx, 0xx Xxxxx,
Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxx, or at such other office as the
Administrative Agent may instruct the Guarantor in writing, and such payment shall be made without
setoff, counterclaim, withholding or other deduction of any nature.
2.14 Taxes. (a) Any and all payments by or on account of any obligation of the
Guarantor hereunder shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Guarantor shall be required to deduct any Indemnified Taxes or
Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been made, (ii) the
Guarantor shall make such deductions and (iii) the Guarantor shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable Law.
(b) In addition, the Guarantor shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Law.
(c) The Guarantor shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes in the same manner that the Borrower is required to indemnify such parties with respect to
such Indemnified Taxes and Other Taxes under the Credit Agreement.
Exhibit D - Page 8
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Guarantor to a Governmental Authority, the Guarantor shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Guarantor
or with respect to which the Guarantor has paid additional amounts pursuant to this Section 2.14,
it shall pay over such refund to the Guarantor (but only to the extent of indemnity payments made,
or additional amounts paid, by the Guarantor under this Section 2.14 with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the Guarantor, upon the request
of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Guarantor
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Guarantor or any other
Person.
2.15 No Conditions to Guaranty. The Guarantor agrees that the validity and
effectiveness of this Guaranty Agreement are not subject to the satisfaction of any condition of
any type, including but not limited to the execution by any other Person of a Guarantee of all or
any part of the Lender Indebtedness.
2.16 No Stay. Without limitation of any other provision of this Guaranty Agreement, if
any declaration of default or acceleration or other exercise or condition to exercise of rights or
remedies under or with respect to any Obligation shall at any time be stayed, enjoined, or
prevented for any reason (including but not limited to a stay or an injunction resulting from the
pendency against the Borrower or any other Person of a bankruptcy, insolvency, reorganization or
similar proceeding), the Guarantor agrees that, for the purposes of this Guaranty Agreement and its
obligations hereunder, the Obligations shall be deemed to have been declared in default or
accelerated, and such other exercise or conditions to exercise shall be deemed to have been taken
or met.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In addition to the representations and warranties set forth below, the Guarantor hereby makes,
on behalf of itself, all representations and warranties that Borrower is required to make on behalf
of the Guarantor as set forth in Article III of the Credit Agreement.
3.1 Bankruptcy Intent. The Guarantor has no intent (i) to file a voluntary petition
under any chapter of the Bankruptcy Code, Title 11 U.S.C. or in any manner seek relief, protection,
reorganization, liquidation, dissolution or similar relief for debtors under any other state,
local, federal or other insolvency laws, either at the present time or at any time hereafter, (ii)
directly or indirectly to cause any involuntary petition to be filed against the Guarantor or
directly or indirectly to cause the Guarantor to become the subject of any proceedings pursuant to
any state, federal or other insolvency law providing for the relief of debtors, either at the
present time or at any time hereafter, or (iii) directly or indirectly to cause any interest of the
Guarantor to become the property of any bankrupt estate or the subject of any
Exhibit D - Page 9
state, federal or other bankruptcy, dissolution, liquidation or insolvency proceedings, either
at the present time or at any time hereafter.
3.2 No Fraudulent Intent. Neither the execution and delivery of this Guaranty
Agreement nor the performance of any actions required hereunder or described herein is being
consummated by the Guarantor with or as a result of any actual intent by the Guarantor to hinder,
delay or defraud any entity to the Guarantor is now or will hereafter become indebted.
3.3 Fair Consideration. The repayment of the antecedent debts of the Guarantor
referenced in the recitals hereto, the provision of working capital to the Guarantor by the
Borrower pursuant to the Credit Agreement and the other benefits received by the Guarantor from the
execution of the Credit Agreement and the other Loan Documents and the consummation of the
transactions contemplated thereby are the fair equivalent of and constitute fair consideration for
the Obligations incurred by the Guarantor under this Guaranty Agreement.
3.4 Review of Documents. The Guarantor has, with the assistance of counsel, read and
reviewed such of the Loan Documents as the Guarantor or its counsel deems necessary or desirable to
read and review.
3.5 No Default. No Event of Default as defined in the Credit Agreement has occurred
and is continuing, and no such Event of Default will occur as a result of the execution and
delivery of this Guaranty Agreement.
ARTICLE IV
COVENANTS
In addition to the other covenants and agreements of the Guarantor set forth herein, the
Guarantor covenants and agrees that, so long as it remains obligated hereunder, it will perform, or
refrain from performing, as the case may be, each act, undertaking or condition that the Borrower
is required to cause the Guarantor to perform or refrain from performing, as the case may be, under
the Credit Agreement.
ARTICLE V
GENERAL PROVISIONS
5.1 No Implied Waiver; Cumulative Remedies. No delay on the part of or failure of the
Administrative Agent and/or the Lenders in the exercise of any power, right or remedy under this
Guaranty Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of
any power, right or remedy or any abandonment or discontinuance of steps to enforce such right,
power or remedy preclude other or further exercises thereof, or the exercise of any other power,
right or remedy. The rights and remedies in this Guaranty Agreement are cumulative and not
exclusive of any rights or remedies (including, without limitation, the right of specific
performance) which the Administrative Agent and/or the Lenders would otherwise have.
5.2 Severability; Modification to Conform to Law.
(i) It is the intention of the parties that this Guaranty Agreement be enforceable to the
fullest extent permissible under applicable law, but that the unenforceability (or modification to
conform to such law) of any provision or provisions hereof shall not render unenforceable, or
impair, the remainder hereof.
Exhibit D - Page 10
If any provision in this Guaranty Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, this Guaranty Agreement shall, as to such jurisdiction, be deemed
amended to modify or delete, as necessary, the offending provision or provisions and to alter the
bounds thereof in order to render it or them valid and enforceable to the maximum extent permitted
by applicable law, without in any matter affecting the validity or enforceability of such provision
or provisions in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
(ii) Without limitation of the preceding subsection (i), to the extent that applicable Law
(including applicable Laws pertaining to fraudulent conveyance or fraudulent or preferential
transfer) otherwise would render the full amount of the Guarantor’s obligations hereunder invalid,
voidable, or unenforceable on account of the amount of Guarantor’s aggregate liability under this
Guaranty Agreement, then, notwithstanding any other provision of this Guaranty Agreement to the
contrary, the aggregate amount of such liability shall, without any further action by the
Administrative Agent or any of the Lenders or Guarantor or any other Person, be automatically
limited and reduced to the highest amount which is valid and enforceable as determined in such
action or proceeding, which (without limiting the generality of the foregoing) may be an amount
which is equal to the greater of:
(a) the fair consideration actually received by Guarantor under the terms and as a
result of the Loan Documents and the value of the benefits described in this Section 5.2(ii)
hereof, including (and to the extent not inconsistent with applicable federal and state laws
affecting the enforceability of guaranties) distributions, commitments, and advances made to
or for the benefit of such Guarantor with the proceeds of any credit extended under the Loan
Documents, or
(b) the excess of (1) the amount of the fair value of the assets of Guarantor as of the
date of this Guaranty Agreement as determined in accordance with applicable federal and
state laws governing determinations of the insolvency of debtors as in effect on the date
hereof, over (2) the amount of all liabilities of Guarantor as of the date of this Guaranty
Agreement, also as determined on the basis of applicable federal and state laws governing
the insolvency of debtors as in effect on the date hereof.
(iii) Notwithstanding anything to the contrary in this Section 5.2 or elsewhere in this
Guaranty Agreement, this Guaranty Agreement shall be presumptively valid and enforceable to its
full extent in accordance with its terms, as if this Section 5.2 (and references elsewhere in this
Guaranty Agreement to enforceability to the fullest extent permitted by law) were not a part of
this Guaranty Agreement, and in any related litigation the burden of proof shall be on the party
asserting the invalidity or unenforceability of any provision hereof or asserting any limitation on
Guarantor’s obligations hereunder as to each element of such assertion.
5.3 Successors and Assigns. This Guaranty Agreement shall be binding upon the
Guarantor and its successors and assigns and shall inure to the benefit of and be enforceable by
the Administrative Agent and the Lenders or any of them and their respective successors and
assigns; provided, however, except as permitted by the Credit Agreement, that the
Guarantor may not assign its rights and obligations hereunder without the prior written consent of
the Lenders or the Administrative Agent acting on their behalf. Without limitation of the
foregoing, the Administrative Agent and the Lenders, or any of them (and any successive assignee or
transferee), from time to time may assign or otherwise transfer all or any portion of its rights or
obligations under the Loan Documents (including all or any portion of any commitment to extend
credit), or any other Obligations, to any other person and such Obligations (including any
Obligations resulting from extension of credit by such other Person under or in connection with the
Loan Documents) shall be and remain Obligations entitled to the benefit of this Guaranty Agreement,
and to the extent of its interest in such Obligations such other Person shall be vested with all
Exhibit D - Page 11
the benefits in respect thereof granted to the Administrative Agent and the Lenders in this
Guaranty Agreement or otherwise.
5.4 Applicable Law. (a) This Guaranty Agreement shall be construed in accordance with
and governed by the law of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Guaranty Agreement, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Guaranty Agreement shall affect
any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Guaranty Agreement against the Guarantor or its
properties in the courts of any jurisdiction.
(c) The Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
Each party to this Guaranty Agreement irrevocably consents to service of process in the manner
provided for notices in Section 5.8 of this Guaranty Agreement. Nothing in this Guaranty
Agreement will affect the right of any party to this Guaranty Agreement to serve process in any
other manner permitted by law.
5.5 Headings. The headings of the sections and subsections of this Guaranty Agreement
are inserted for convenience only and shall not be deemed to constitute a part hereof.
5.6 Entire Agreement. This Guaranty Agreement constitutes the entire agreement of the
Guarantor and supersedes all prior communications, oral or written, by and between the Guarantor on
the one hand and the Administrative Agent and/or the Lenders on the other hand.
5.7 Amendments and Waivers. Any provision of this Guaranty Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and is signed by the Guarantor and
the Administrative Agent and approved by the Lenders required to approve any such amendment or
waiver pursuant to Section 9.02(b) of the Credit Agreement.
5.8 Notices.
(A) Notices to Guarantor. Except as otherwise provided herein, all notices and other
communications required to be made or sent to the Guarantor shall be delivered to the addresses
below in the same manner, and shall be effective in the same manner, as notices delivered pursuant
to Section 9.01 of the Credit Agreement:
Exhibit D - Page 12
NRP (Operating) LLC
000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx
2300 First Tower City
0000 Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(B) Notices to Administrative Agent. Except as otherwise provided herein, all notices
and other communications required to be made or sent to the Administrative Agent shall be in
writing and shall be sent to the addresses set forth in Section 9.01 of the Credit Agreement in the
same manner that such notice are required to be sent pursuant to such Section of the Credit
Agreement.
All such notices shall be effective pursuant to the terms set forth in Section 9.01 of the Credit
Agreement. The Administrative Agent may change its address for service of notice upon it by a
notice in writing to the Administrative Agent.
5.9 Expenses. The Guarantor agrees to pay to the Administrative Agent and each Lender
on demand all reasonable out-of-pocket expenses, including reasonable attorneys’ fees and expenses,
incurred in enforcing the Administrative Agent’s and such Lender’s rights hereunder. Any such sums
not paid on demand shall bear interest at the sum of the Alternate Base Rate plus two percent (2%).
5.10 Counterparts. This Guaranty Agreement may be executed in as many counterparts as
shall be convenient and by the different parties on a separate different parties 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 Guaranty Agreement, it shall not be necessary to
produce or account for more than one such counterpart signed by the party against whom enforcement
is sought.
5.11 Indemnity. The Guarantor hereby agrees to indemnify the Administrative Agent, the
Joint Lead Arrangers and Joint Bookrunners, the Issuing Bank and each Lender, and each Related
Party of any of the foregoing Persons against, and hold each of them harmless from, any loss,
liabilities, damages, claims, costs and expenses (including reasonable attorneys’ fees and
disbursements) suffered or incurred by any of them arising out of, resulting from or in any manner
connected with, the execution, delivery and performance of each of the Loan Documents, this
Guaranty Agreement and any and all transactions related to or consummated in connection with the
Loans in the same manner that Borrower is required to indemnify such parties under the Credit
Agreement. The indemnity set forth in this Section 5.11 shall be in addition to any other
obligations or liabilities of the Guarantor to the Administrative Agent and/or any Lender, or at
common law or otherwise. The provisions of this Section 5.11 shall survive the payment of the
Guarantor’s Obligations and the termination of this Guaranty Agreement.
5.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
Exhibit D - Page 13
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS GUARANTY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[SIGNATURE PAGE FOLLOWS]
Exhibit D - Page 14
IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned Guarantor has
caused this Guaranty Agreement to be executed by its duly authorized officer as of the date first
written above.
|
|
|
|
|
[SIGNATURE BLOCKS OF GUARANTORS TO |
|
|
BE DETERMINED] |
This Guaranty Agreement is accepted by the Administrative Agent, for and on behalf of the
Lenders and the Administrative Agent, as of the date first written above.
|
|
|
|
|
|
|
CITIBANK, N.A., in its capacity as Administrative
Agent |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
Exhibit D - Page 15
EXHIBIT E
FORM OF BORROWING REQUEST
Citibank, N.A.
Attention:
Gentlemen:
Reference
is made to the Amended and Restated Credit Agreement dated as of , 2007 (as amended from time to time, the “Credit Agreement”) among NRP
(OPERATING) LLC (the “Borrower”), the LENDERS party thereto, and CITIBANK, N.A., as
Administrative Agent. Terms defined in the Credit Agreement and not otherwise defined herein are
used herein with the meanings specified in the Credit Agreement. The Borrower hereby requests a
Borrowing under the Credit Agreement, and in that connection sets forth below the information
relating to such Revolving Borrowing (the “Proposed Borrowing”) as required by Section
2.03 of the Credit Agreement:
(a) The date of the Proposed Borrowing is , 200___.
(b) The Type and amount of, and, in the case of a Eurodollar Borrowing, the Interest Period
applicable to, the Loans comprising the Proposed Borrowing are:
___ Eurodollar Borrowing in an aggregate amount of $ with
an Interest period of:
one (1) month due
two (2) months due
three (3) months due
six (6) months due
nine (9) months due (if available
by all Lenders)
___ ABR Borrowing in an aggregate amount of $ .
Location and number of Borrower’s account to which funds are to be disbursed:
The Borrower hereby certifies that after giving effect to the Proposed Borrowing, the
aggregate amount of the total Revolving Credit Exposures will not exceed the total Commitments.
The Borrower hereby further certifies that on the date hereof all applicable conditions to the
Proposed Borrowing set forth in Article IV of the Credit Agreement have been satisfied and
that the Proposed Borrowing complies with the terms of the Credit Agreement, and by acceptance of
the proceeds of the Proposed Borrowing, the Borrower will be deemed to have recertified the
foregoing on the date of the Proposed Borrowing.
Exhibit E - Page 1
|
|
|
|
|
|
|
Sincerely, |
|
|
|
|
|
|
|
NRP (OPERATING) LLC |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
Exhibit E - Page 2
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
NRP (OPERATING) LLC
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section 4.01(e) of the Amended and
Restated Credit Agreement entered into as of , 2007 (the “Credit
Agreement”), among NRP (OPERATING) LLC (the “Borrower”), a Delaware limited liability
company, as Borrower, CITIBANK, N.A., as Administrative Agent for the Lenders, and the Lenders from
time to time party thereto. Capitalized terms used in this Certificate and not otherwise defined
herein are used as defined in the Credit Agreement.
The undersigned hereby certifies that he is the Chief Financial Officer of the Borrower and
that as such he is authorized to execute and deliver this Compliance Certificate on behalf of the
Borrower, and he further certifies:
|
1. |
|
The representations and warranties contained in Article III of the Credit
Agreement are true and correct as of the date hereof, except to the extent any such
representation or warranty is stated to relate to an earlier date in which case such
representation and warranty is true and correct on and as of such earlier date. |
|
|
2. |
|
No Default or Event of Default has occurred and is continuing as of the date
hereof or after giving effect to the Loans to be made on the date hereof. |
[Remainder of page intentionally blank]
Exhibit F - Page 1
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of the date
set forth above.
|
|
|
|
|
|
NRP (OPERATING) LLC
|
|
|
By: |
|
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
Chief Financial Officer |
|
Exhibit F - Page 2
EXHIBIT G
FORM OF EXTENSION REQUEST
, 200____
Citibank, N.A.
0 Xxxxx Xxx, 0xx Xxxxx
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Gentlemen:
Reference is made to the $300,000,000 Amended and Restated Credit Agreement dated as of March
___, 2007 (as amended from time to time, the “Credit Agreement”) among NRP (OPERATING)
LLC (the “Borrower”), CITIBANK, N.A., as Administrative Agent and the Lenders from time to
time party thereto. Terms used, but not otherwise defined herein, shall have the same meanings
herein as in the Credit Agreement. The Borrower hereby gives notice as required by Section
2.09(d) of the Credit Agreement of its request to extend the Maturity Date for an additional
one-year period.
The Borrower hereby certifies that (i) this request complies with the terms of the Credit
Agreement and the provisions of Section 2.09(d) and (ii) no Default or Event of Default has
occurred and is continuing as of the date of this request.
|
|
|
|
|
|
|
Sincerely, |
|
|
|
|
|
|
|
NRP (OPERATING) LLC, |
|
|
a Delaware limited liability company |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
Exhibit G - Page 1
SCHEDULE 2.01
COMMITMENTS
|
|
|
|
|
|
|
|
|
|
|
Investor |
|
Title |
|
Allocation |
|
|
Percentage |
|
Citibank, N.A. |
|
Administrative Agent |
|
$ |
50,000,000.00 |
|
|
|
16.67 |
% |
Wachovia Bank,
National
Association |
|
Syndication Agent |
|
$ |
50,000,000.00 |
|
|
|
16.67 |
% |
Bank of Montreal |
|
Lender |
|
$ |
35,000,000.00 |
|
|
|
11.67 |
% |
BNP Paribas |
|
Lender |
|
$ |
35,000,000.00 |
|
|
|
11.67 |
% |
Branch Banking and
Trust Company |
|
Lender |
|
$ |
35,000,000.00 |
|
|
|
11.67 |
% |
The Huntington
National Bank |
|
Lender |
|
$ |
25,000,000.00 |
|
|
|
8.33 |
% |
Comerica Bank |
|
Lender |
|
$ |
17,500,000.00 |
|
|
|
5.83 |
% |
Compass Bank |
|
Lender |
|
$ |
17,500,000.00 |
|
|
|
5.83 |
% |
Royal Bank of Canada |
|
Lender |
|
$ |
17,500,000.00 |
|
|
|
5.83 |
% |
Amegy Bank National
Association |
|
Lender |
|
$ |
17,500,000.00 |
|
|
|
5.83 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
300,000,000.00 |
|
|
|
100.00 |
% |
Schedule 2.01
- Page 1
SCHEDULE 3.03
DISCLOSED MATTERS
None.
Schedule 3.03
- Page 1
SCHEDULE 3.14
Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
percentage of |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
total |
name of |
|
jurisdiction of |
|
|
|
|
|
class of llc |
|
membership |
subsidiary |
|
organization |
|
name of owner |
|
interest |
|
interests |
WPP LLC |
|
Delaware |
|
NRP (Operating) LLC |
|
Sole member |
|
|
100 |
% |
WBRD LLC |
|
Delaware |
|
NRP (Operating) LLC |
|
Sole member |
|
|
100 |
% |
ACIN LLC |
|
Delaware |
|
NRP (Operating) LLC |
|
Sole member |
|
|
100 |
% |
HOD LLC |
|
Delaware |
|
NRP (Operating) LLC |
|
Sole member |
|
|
100 |
% |
XXXXXXX XXXXX COAL
COMPANY LLC |
|
Delaware |
|
NRP (Operating) LLC |
|
Sole member |
|
|
100 |
% |
XXXXXXX MINERAL, LLC |
|
Delaware |
|
NRP (Operating) LLC |
|
Sole member |
|
|
100 |
% |
INDEPENDENCE LAND
COMPANY, LLC |
|
Delaware |
|
NRP (Operating) LLC |
|
Sole member |
|
|
100 |
% |
Schedule 3.14
- Page 1
SCHEDULE 6.01
EXISTING INDEBTEDNESS
1. |
|
The Series A, B, C, D and E notes issued pursuant to the Note Purchase Agreements. |
|
2. |
|
A 5.31% utility local improvement obligation (maturing in March 2021) on real property owned by
WPP LLC in the State of Washington. |
Schedule 6.01
- Page 1
SCHEDULE 6.02
EXISTING LIENS
1. |
|
A 5.31% utility local improvement obligation (maturing in March 2021) on real property owned by
WPP LLC in the State of Washington. |
Schedule 6.02
- Page 1
SCHEDULE 6.08
PERMITTED ASSET SALES
1. |
|
The timber properties located in the state of Virginia acquired from El Paso Corporation in
December 2002. |
|
2. |
|
The timber properties located in the State of West Virginia acquired from the Mellon
Foundation in December 2006 and from Xxxxxxx-Rum Properties in January 2007. |
Schedule 6.08
- Page 1
SCHEDULE 6.14
EXISTING RESTRICTIONS
1. |
|
Note Purchase Agreements |
Schedule 6.14
- Page 1