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EXHIBIT 10.1
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of August 16, 1999 among ALLIANCE RESOURCE
GP, LLC, a Delaware limited liability company (the "COMPANY"), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "INITIAL LENDERS"), the Swing Line Bank
(as hereinafter defined), THE CHASE MANHATTAN BANK ("CHASE"), as paying agent
(together with any successor paying agent appointed pursuant to Article VII, the
"PAYING AGENT"), Deutsche Bank AG, New York Branch, as documentation agent (the
"DOCUMENTATION AGENT"), and CITICORP USA, INC. ("CITICORP") and CHASE, as
co-administrative agents (together with any successor administrative agent
appointed pursuant to Article VII, the "CO-ADMINISTRATIVE Agents" and, together
with the Paying Agent, the "AGENTS") for the Lender Parties (as hereinafter
defined), with Chase Securities, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as joint
advisors, joint lead arrangers and joint book managers.
PRELIMINARY STATEMENTS:
(1) Alliance Resource Partners, L.P., a Delaware limited partnership
(the "MLP"), intends to complete an initial public offering (the "INITIAL PUBLIC
OFFERING") of common units (the "MLP UNITS"), representing at least a 40%
ownership interest in the MLP on a fully diluted basis and yielding net proceeds
of at least $110,000,000, and the remainder of which will be owned by the Equity
Investor (as hereinafter defined) or one or more of its affiliates.
(2) The Company intends to issue at least $180,000,000 of senior notes
as most recently amended (as defined in Section 1.02) (the "SENIOR NOTES") in a
private placement pursuant to the Note Purchase Agreement (as hereinafter
defined). Immediately upon the closings under the Note Purchase Agreement and
this Agreement, Alliance Resource Operating Partners, L.P., a Delaware limited
partnership ("AROP"), will assume the obligations of the Company under the Loan
Documents and under the Note Purchase Agreement and the Senior Notes. The
Initial Public Offering, the issuance and sale of the Senior Notes, the making
of the Advances (as hereinafter defined) under this Agreement and all related
transactions are hereinafter collectively referred to as the "TRANSACTION". As
used herein, the term "BORROWER" shall mean (i) prior to the time the Assumption
Agreement (as hereinafter defined) shall become effective, the Company, and (ii)
thereafter, AROP.
(3) The Borrower has requested the Lender Parties lend to the Borrower
up to $100,000,000 to purchase Qualifying Securities (as hereinafter defined)
that will be liquidated from time to time to finance certain capital
expenditures of AROP and its Subsidiaries (as hereinafter defined), to pay a
cash distribution to Alliance Resource Holdings, Inc. or one of its Affiliates
(as hereinafter defined) on the Effective Date (as hereinafter defined) in
connection with the Transaction, to pay cash distributions to the holders of the
MLP Units, to provide
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working capital for the Borrower and its Subsidiaries and for other general
business purposes of AROP and its Subsidiaries (including, without limitation,
acquisitions and capital expenditures). The Lender Parties have indicated their
willingness to agree to lend such amount on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACCEPTABLE BANK" means (a) any bank or trust company (i) which is
organized under the laws of the United States of America or any State
thereof, (ii) which has capital, surplus and undivided profits aggregating
at least $500,000,000, and (iii) (A) whose long-term unsecured debt
obligations (or the long-term unsecured debt obligations of the holding
company owning all of the capital stock of such bank or trust company)
shall have been given a rating of "AA-" or better by S&P, "Aa3" or better
by ▇▇▇▇▇'▇ or an equivalent rating by any other credit rating agency of
recognized national standing or (B) the commercial paper or other
short-term unsecured debt obligations of which (or the short-term unsecured
debt obligations of the holding company owning all of the capital stock of
such bank or trust company) shall have been given a rating of "Al " or
better by S&P or "Prime 1" or better by ▇▇▇▇▇'▇ or an equivalent rating by
any other credit rating agency of recognized national standing or (b) any
Lender Party.
"ACCEPTABLE BROKER-DEALER" means any Person other than a natural
person (a) which is registered as a broker or dealer pursuant to the
Exchange Act and (b) whose long-term unsecured debt obligations shall have
been given a rating of "AA-" or better by S&P, "Aa3" or better by ▇▇▇▇▇'▇
or an equivalent rating by any other credit rating agency of recognized
national standing.
"ADVANCE" means a Term Advance, a Working Capital Advance, a Revolving
Credit Advance or a Swing Line Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or
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officer of such Person. For purposes of this definition, the term "control"
(including the terms "controlling", "controlled by" and "under common
control with") of a Person means the possession, direct or indirect, of the
power to vote 10% or more of the Voting Stock of such Person or to direct
or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Borrower; provided,
however, the Borrower shall not be an Affiliate of any Restricted
Subsidiary and no Restricted Subsidiary shall be an Affiliate of the
Borrower or any Restricted Subsidiary.
"AGENTS" has the meaning specified in the recital of parties to this
Agreement.
"ALLIANCE RESOURCE GROUP" means the Wholly Owned Subsidiaries of
Alliance Resource Holdings, Inc., a Delaware corporation.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"APPLICABLE MARGIN" means (a) in the case of Secured Advances, (i)
during the period from the Effective Date to the one-year anniversary of
the Effective Date, in the case of Eurodollar Rate Advances, 0.75% per
annum and, in the case of Base Rate Advances, 0% per annum, (ii) during the
period from the one-year anniversary of the Effective Date to the two-year
anniversary of the Effective Date, in the case of Eurodollar Rate Advances,
1.25% per annum and, in the case of Base Rate Advances, 0.25% per annum,
and (iii) thereafter, a percentage per annum determined by reference to the
Consolidated Net Debt to Consolidated Cash Flow Ratio as set forth below
and (b) in the case of all other Advances, (i) during the period from the
Effective Date to the six-month anniversary of the Effective Date, in the
case of Eurodollar Rate Advances, 1.5% per annum, and in the case of Base
Rate Advances, 0.5% per annum, and (ii) thereafter, a percentage per annum
determined by reference to the Consolidated Net Debt to Consolidated Cash
Flow Ratio as set forth below:
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====================================================================================
Consolidated Net Debt to Base Rate Advances Eurodollar Rate Advances
Consolidated Cash Flow Ratio
====================================================================================
Level I
less than 1.75:1.0 0.00% 1.00%
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Level II
1.75:1.0 or greater,
but less than 2.50:1.0 0.25% 1.25%
------------------------------------------------------------------------------------
Level III
2.50:1.0 or greater,
but less than 3.50:1.0 0.50% 1.50%
------------------------------------------------------------------------------------
Level IV
3.50:1.0 or greater 0.75% 1.75%
====================================================================================
In the case of Advances for which the Applicable Margin is determined based
on the preceding table, the Applicable Margin for each Advance shall be
determined by reference to the Consolidated Net Debt to Consolidated Cash
Flow Ratio in effect from time to time which ratio shall be determined by
reference to the financial statements most recently delivered in accordance
with Section 5.03(b) or (c), as the case may be; provided, however, that
the Applicable Margin shall be at Level IV for so long as the Borrower has
not submitted to the Paying Agent the financial statements as and when
required under Section 5.03(b) or (c), as the case may be.
"APPLICABLE PERCENTAGE" means (a) during the period from the date
hereof to the six-month anniversary hereof, 0.50% per annum and (b)
thereafter, a percentage per annum determined by reference to the
Consolidated Net Debt to Consolidated Cash Flow Ratio as set forth below:
================================================================================
Consolidated Net Debt to Applicable Percentage
Consolidated Cash Flow Ratio
================================================================================
Level I
less than 1.75:1.0 0.375%
--------------------------------------------------------------------------------
Level II
1.75:1.0 or greater,
but less than 2.50:1.0 0.375%
--------------------------------------------------------------------------------
Level III
2.50:1.0 or greater,
but less than 3.50:1.0 0.500%
--------------------------------------------------------------------------------
Level IV
3.50:1.0 or greater 0.500%
================================================================================
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In the case of the Applicable Percentage specified in clause (b), the
Applicable Percentage shall be determined by reference to the Consolidated
Net Debt to Consolidated Cash Flow Ratio, in effect from time to time,
which ratio shall be determined by reference to the financial statements
most recently delivered in accordance with Section 5.03(b) or (c), as the
case may be; provided, however, that the Applicable Margin shall be at
Level IV for so long as the Borrower has not submitted to the Paying Agent
the financial statements as and when required under Section 5.03(b) or (c),
as the case may be.
"APPROPRIATE LENDER" means, at any time, with respect to (a) any of
the Term or Revolving Credit or Working Capital Facilities, a Lender that
has a Commitment with respect to such Facility at such time, or (b) the
Swing Line Facility, (i) the Swing Line Bank and (ii) if the Revolving
Credit Lenders have made Swing Line Advances pursuant to Section 2.02(b)
that are outstanding at such time, each such Revolving Credit Lender.
"AROP" has the meaning specified in Preliminary Statement (2).
"ASSET ACQUISITION" means (a) an Investment by the Borrower or any
Restricted Subsidiary in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged with or into the
Borrower or any Restricted Subsidiary, (b) the acquisition by the Borrower
or any Restricted Subsidiary of the assets of any Person (other than a
Restricted Subsidiary) which constitute all or substantially all of the
assets of such Person or (c) the acquisition by the Borrower or any
Restricted Subsidiary of any division or line of business of any Person
(other than a Restricted Subsidiary).
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the Paying
Agent, in accordance with Section 8.07 and in substantially the form of
Exhibit C hereto.
"ASSUMPTION AGREEMENT" has the meaning specified in Section
3.01(a)(x).
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by The Chase
Manhattan Bank in New York, New York, from time to time, as its prime
rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
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"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"BEACON INVESTORS" means collectively, The Beacon Group Energy
Investment Fund, L.P., a Delaware limited partnership, and MPC Partners,
L.P., a Delaware limited partnership.
"BEACON CONTROLLED AFFILIATE" means any Person which directly or
indirectly, is in control of, is controlled by, or is under common control
with The Beacon Group Energy Investment Fund, L.P. or the Equity Investor
or its Affiliates; for purposes of this definition, "control" (including
the terms "controlling", "controlled by" and "under common control with")
of a Person shall mean the power, direct or indirect, to direct or cause
the direction of the management and policies of such Person whether by
contract or otherwise, but shall not include any Person who is a director
or officer of any Beacon Investor or such Person.
"BORROWER" has the meaning specified in Preliminary Statement (2).
"BORROWER'S ACCOUNT" means the account of the Borrower maintained by
the Borrower with Chase at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Account No. 323138721, or such other account as the Borrower
shall specify in writing to the Paying Agent.
"BORROWING" means a Term Borrowing, a Working Capital Borrowing, a
Revolving Credit Borrowing or a Swing Line Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"BUSINESS PLAN" means a rolling five year business plan for the
Borrower which shall include, without limitation, forecasts prepared by
management of the Borrower, in form satisfactory to the Co-Administrative
Agents, of balance sheets, income statements and cash flow statements on an
annual basis for each of the next five Fiscal Years and which shall set
forth (without limitation) mine development plans, an analysis of business
outlook (including the ▇▇▇▇▇▇ County Project) for the term of the Facility
in form and scope satisfactory to the Co-Administrative Agents, capital
expenditures, coal reserve profiles, property acquisitions, production
levels and other similar items, which Business Plan may be revised by the
Borrower from time to time to reflect changes in operating and market
conditions.
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"CAPITAL EXPENDITURES" means, for any Person for any period, the sum
of, without duplication, all expenditures made, directly or indirectly, by
such Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be,
in accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person or have a useful
life of more than one year.
"CAPITAL LEASE" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset
and the incurrence of a liability in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee
under such Capital Lease which would, in accordance with GAAP, appear as a
liability on a balance sheet of such Person.
"CAPITAL STOCK" shall mean, with respect to any Person, any and all
shares, units representing interests, participations, rights in or other
equivalents (however designated) of such Person's capital stock, including,
(a) with respect to partnerships, partnership interests (whether general or
limited) and any other interest or participation that confers upon a Person
the right to receive a share of the profits and losses of, or distributions
of assets of, such partnership, (b) with respect to limited liability
companies, member interests, and (c) with respect to any Person, any rights
(other than debt securities convertible into capital stock), warrants or
options exchangeable for or convertible into such capital stock.
"CASH EQUIVALENTS" means any of the following, to the extent owned by
the Borrower or any of its Restricted Subsidiaries free and clear of all
Liens other than Liens created under the Pledge Agreement and, unless
otherwise specified below, having a maturity of not greater than two years
from the date of acquisition thereof:
(a) United States Governmental Securities maturing within one
year (or, in the case of Qualifying Securities, two years) from the
date of acquisition;
(b) certificates of deposit, banker's acceptances or other bank
instruments maturing within one year from the date of acquisition
thereof, issued by Acceptable Banks;
(c) Repurchase Agreements;
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(d) obligations of any state of the United States of America, or
any municipality of any such state, in each case rated "AA" or better
by S&P, "Aa2" or better by ▇▇▇▇▇'▇ or an equivalent rating by any
other credit rating agency of recognized national standing, provided
that such obligations mature within one year from the date of
acquisition thereof; and
(e) commercial paper maturing in 270 days or less from the date
of issuance which, at the time of acquisition by the Borrower or any
Restricted Subsidiary, is rated A-l or better by S&P or P1 or better
by ▇▇▇▇▇'▇ or an equivalent rating by any other credit rating agency
of recognized national standing.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CHANGE OF CONTROL" means the occurrence of either of the following:
(a) Beacon Investors and the Beacon Controlled Affiliates shall at any time
for any reason cease collectively to own, directly or indirectly, at least
51% of the managing ownership interest of the sole or managing general
partner, as the case may be, of the Borrower or (b) the managing general
partner of the Borrower shall at any time for any reason cease to be either
the sole or managing general partner of Alliance Resource Partners, L.P.
"CHASE" has the meaning specified in the recital of parties to this
Agreement.
"CITICORP" has the meaning specified in the recital of parties to this
Agreement.
"CO-ADMINISTRATIVE AGENTS" has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL" means all "Collateral" referred to in the Pledge
Agreement and all other property that is or is intended to be subject to
any Lien in favor of the Paying Agent for the benefit of the Secured
Parties.
"COMMITMENT" means a Term Commitment, a Working Capital Commitment, a
Revolving Credit Commitment or a Swing Line Commitment.
"COMPANY" has the meaning specified in the recital of parties to this
Agreement.
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"CONFIDENTIAL INFORMATION" means information that any Loan Party
furnishes to any Agent or any Lender Party as confidential; provided,
however, that such term does not include any such information that is or
becomes generally available to the public or that is or becomes available
to such Agent or such Lender Party from a source other than the Loan
Parties (it being understood that except as set forth in the proviso, all
information that any Loan Party submits to any Agent or any Lender Party is
confidential).
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED CASH FLOW" means, as of any date of determination for
any applicable period, the excess, if any, of (a) the sum of, without
duplication, the amounts for such period, taken as a single accounting
period, of (i) Consolidated Net Income for such period, plus (ii) to the
extent deducted in the determination of Consolidated Net Income for such
period, without duplication, (A) Consolidated Non-Cash Charges, (B)
Consolidated Interest Expense and (C) Consolidated Income Tax Expense, over
(b) any non-cash items increasing Consolidated Net Income for such period
to the extent that such items constitute reversals of Consolidated Non-Cash
Charges for a previous period and which were included in the computation of
Consolidated Cash Flow for such previous period pursuant to the provisions
of the preceding clause (a), provided that in calculating Consolidated Cash
Flow for any such period, (1) full effect shall be given to the proviso to
the definition of "Consolidated Interest Expense" set forth below and (2)
Consolidated Cash Flow shall be calculated after giving effect on a pro
forma basis for such period, in all respects in accordance with GAAP, to
any Transfer or Asset Acquisitions (including, without limitation any Asset
Acquisition by the Borrower or any Restricted Subsidiary giving rise to the
need to determine Consolidated Cash Flow as a result of the Borrower or one
of its Restricted Subsidiaries (including any Person that becomes a
Restricted Subsidiary as result of any such Asset Acquisition) incurring,
assuming or otherwise becoming liable for any Debt) occurring during the
period commencing on the first day of such period to and including the date
of the transaction, as if such Transfer or Asset Acquisition occurred on
the first day of such period.
"CONSOLIDATED INCOME TAX EXPENSE" means, with respect to any period,
all provisions for Federal, state, local and foreign income taxes of the
Borrower and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, as of the date of any
determination for any applicable period, the sum (without duplication) of
the following (in each case, eliminating all offsetting debits and credits
between the Borrower and its Restricted Subsidiaries and all other items
required to be eliminated in the course of the preparation
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of consolidated financial statements of the Borrower and its Restricted
Subsidiaries in accordance with GAAP): (a) all interest in respect of Debt
of the Borrower and its Restricted Subsidiaries whether paid or accrued
(including non-cash interest payments and imputed interest on Capital Lease
Obligations) deducted in determining Consolidated Net Income for such
period, and (b) all debt discount (but not expense) amortized or required
to be amortized in the determination of Consolidated Net Income for such
period, less (c) all interest earned or accrued with respect to Qualifying
Securities during such period. In computing Consolidated Interest Expense
for any period prior to the end of the first four fiscal quarters ending
after the Effective Date, Consolidated Interest Expense of the Borrower and
the Restricted Subsidiaries shall be determined with respect to the
principal amount of Debt actually outstanding from time to time but on the
basis of interest accruing at a rate equal to the weighted average interest
rate payable on the date of determination with respect to Debt outstanding
under the Senior Notes and this Agreement, rather than the rates of
interest actually applicable to the Debt refinanced thereby.
"CONSOLIDATED NET DEBT" means, as of any date of determination, the
aggregate outstanding principal amount of all Debt of the Borrower and its
Restricted Subsidiaries outstanding on such date, after eliminating all
offsetting debits and credits between the Borrower and its Restricted
Subsidiaries and all other items required to be eliminated in the course of
the preparation of consolidated financial statements of the Borrower and
its Restricted Subsidiaries in accordance with GAAP; less the principal
amount of all Qualifying Securities held by the Borrower and its Restricted
Subsidiaries.
"CONSOLIDATED NET DEBT TO CONSOLIDATED CASH FLOW RATIO" means, at any
date of determination, the ratio of Consolidated Net Debt of the Borrower
and its Restricted Subsidiaries as at the end of the most recently ended
fiscal quarter of the Borrower for which financial statements are required
to be delivered to the Lender Parties pursuant to Section 5.03(b) or (c),
as the case may be, to Consolidated Cash Flow of the Borrower and its
Restricted Subsidiaries for such fiscal quarter and the immediately
preceding three fiscal quarters; provided, however, that for purposes of
calculating the Consolidated Net Debt to Consolidated Cash Flow Ratio for
the periods commencing on October 1, 1999 and ending on the last day of the
fiscal quarters of the Borrower ending December 31, 1999, March 31, 2000
and June 30, 2000, Consolidated Cash Flow for purposes of this definition
shall be the actual Consolidated Cash Flow for such period multiplied by a
fraction the numerator of which is four and the denominator of which is the
actual number of fiscal quarters that have elapsed since October 1, 1999.
"CONSOLIDATED NET INCOME" means, with reference to any period, the net
income (or loss) of the Borrower and its Restricted Subsidiaries for such
period (taken as a
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cumulative whole), as determined in accordance with GAAP, provided that
there shall be excluded:
(a) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary or is merged into or consolidated with the
Borrower or a Subsidiary, and the income (or loss) of any Person,
substantially all of the assets of which have been acquired in any
manner, realized by such other Person prior to the date of
acquisition,
(b) the income (or loss) of any Person (other than a Restricted
Subsidiary) in which the Borrower or any Restricted Subsidiary has an
ownership interest, except to the extent that any such income has been
actually received by the Borrower or such Restricted Subsidiary in the
form of cash dividends or similar cash distributions,
(c) the undistributed earnings of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary is not at the time
permitted by the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary,
(d) any aggregate net gain or loss during such period arising
from the sale, conversion, exchange or other disposition of capital
assets (such term to include, without limitation, (i) all non-current
assets, and, without duplication, (ii) the following, whether or not
current: all fixed assets, whether tangible or intangible, all
inventory sold in conjunction with the disposition of fixed assets,
and all Securities), and
(e) any net income or gain or loss during such period from (i)
any change in accounting principles in accordance with GAAP, (ii) any
prior period adjustments resulting from any change in accounting
principles in accordance with GAAP, or (iii) any extraordinary or
unusual items.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to the Borrower
and its Restricted Subsidiaries for any period, the aggregate depreciation,
depletion and amortization (other than amortization of debt discount and
expense), the non-cash portion of advance royalties and any non-cash
employee compensation expenses for such period, in each case, reducing
Consolidated Net Income of the Borrower and its Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP.
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"CONSTITUTIVE DOCUMENTS" means, with respect to any Person, the
certificate of incorporation or registration or formation (including, if
applicable, certificate of change of name), articles of incorporation or
association, memorandum of association, charter, bylaws, partnership
agreement, trust agreement, joint venture agreement, limited liability
company operating or members agreement, joint venture agreement or one or
more similar agreements, instruments or documents constituting the
organization or formation of such Person.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement dated August
20, 1999 between the Company and AROP, as most recently amended in
accordance with this Agreement.
"CONTRIBUTION TRANSACTION" has the meaning specified in Section
3.01(m).
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.06(d), 2.08 or 2.09.
"CURRENT ASSETS" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets, after
deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.
"CURRENT LIABILITIES" of any Person means (a) all Debt of such Person
that by its terms is payable on demand or matures within one year after the
date of determination (excluding current maturities of long term Debt and
any Debt renewable or extendible, at the option of such Person, to a date
more than one year from such date or arising under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year from such date), and (b) all other
items (including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person.
"DEBT" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) its Capital Lease Obligations;
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(d) all liabilities secured by any Lien with respect to any
property owned by such Person (whether or not it has assumed or
otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks or other financial institutions (whether or not
representing obligations for borrowed money), other than any thereof
incurred in the ordinary course of business of such Person and which
are issued (i) to support such Person's obligations in respect of
workmen's compensation or unemployment insurance laws, the payment of
retirement benefits or performance guarantees relating to coal
deliveries or insurance deductibles and aggregating no more than
$10,000,000 at any time outstanding for all of the foregoing or (ii)
in respect of current trade payables of such Person;
(f) Swaps of such Person, to the extent required to be reflected
on a balance sheet of such Person prepared as of any date of
determination in accordance with GAAP;
(g) Preferred Stock of Restricted Subsidiaries owned by Persons
other than the Borrower, a Subsidiary Guarantor or a Wholly-Owned
Restricted Subsidiary; and
(h) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (g) hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (h) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
that has not been made by such Lender Party or by the Paying Agent for the
account of such Lender Party pursuant to Section 2.02(e) as of such time.
In the event that a portion of a Defaulted Advance shall be deemed made
pursuant to Section 2.14(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to be
made
Alliance Credit Agreement
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pursuant to Section 2.01 on the same date as the Defaulted Advance so
deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Swing Line Bank pursuant to Section 2.02(b) to purchase a portion
of a Swing Line Advance made by the Swing Line Bank, (b) the Paying Agent
pursuant to Section 2.02(e) to reimburse the Paying Agent for the amount of
any Advance made by the Paying Agent for the account of such Lender Party,
(c) any other Lender Party pursuant to Section 2.12 to purchase any
participation in Advances owing to such other Lender Party and (d) any
Agent pursuant to Section 7.05 to reimburse such Agent for such Lender
Party's ratable share of any amount required to be paid by the Lender
Parties to such Agent as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.14(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that, at such
time (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 6.01(f).
"DISCLOSED LITIGATION" has the meaning specified in Section 3.01(i).
"DOCUMENTATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Paying Agent.
"DOMESTIC SUBSIDIARY" means any Subsidiary other than a Foreign
Subsidiary.
"EFFECTIVE DATE" means the first date on which the conditions set
forth in Article III shall have satisfied.
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"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a Lender
that qualifies under clause (c), (d), (e), or (f) of this definition; (c) a
commercial bank organized under the laws of the United States, or any state
thereof, and having total assets in excess of $1,000,000,000; (d) a
commercial bank organized under the laws of any other country which is a
member of the OECD, or a political subdivision of any such country, and
having total assets in excess of $1,000,000,000; provided that such bank is
acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (e) the
central bank of any country which is a member of the OECD; and (f) any
other financial institution or Person approved by the Paying Agent and,
unless a Default has occurred and is continuing at the time any assignment
is effected pursuant to Section 8.07, the Borrower (which approvals shall
not be unreasonably withheld or delayed); provided, however, that neither
any Loan Party nor any Affiliate of a Loan Party, nor any competitor, or
Affiliate of a competitor, of the Borrower shall qualify as an Eligible
Assignee under this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"EQUITY INVESTOR" means The Beacon Group, LP, a Delaware limited
partnership.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
Alliance Credit Agreement
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"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Paying Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) (i) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M.
Alliance Credit Agreement
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(London time) two Business Days before the first day of such Interest
Period for a period equal to such Interest Period (provided that, if for
any reason such rate is not available, the term "Eurodollar Rate" shall
mean, for any Interest Period for all Eurodollar Rate Advances comprising
part of the same Borrowing, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates) by (ii) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period or (b) upon 3 Business Days' prior
written request by the Borrower to the Paying Agent, (i) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period (or, if such Reference Bank shall
not have such a Eurodollar Rate Advance, $1,000,000) and for a period equal
to such Interest Period by (ii) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. The Eurodollar
Rate for any Interest Period for each Eurodollar Rate Advance comprising
part of the same Borrowing shall be determined by the Paying Agent on the
basis of applicable rates furnished to and received by the Paying Agent
from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.06.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
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"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before giving effect to the consummation of the
Transaction.
"FACILITY" means the Term Facility, the Working Capital Facility, the
Revolving Credit Facility or the Swing Line Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Paying Agent from three Federal funds brokers of recognized standing
selected by it.
"FEE LETTER" means the fee letter dated July 6, 1999 between the
Borrower and the Agents, as amended.
"FISCAL YEAR" means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"FOREIGN SUBSIDIARY" means a Subsidiary organized under the laws of a
jurisdiction other than the United States or any State thereof or the
District of Columbia.
"GAAP" has the meaning specified in Section 1.03.
"GENERAL PARTNER" means Alliance Resource Management GP, LLC, a
Delaware limited liability company.
"▇▇▇▇▇▇ COUNTY PROJECT" means the mining development project on the
property of the Borrower located in ▇▇▇▇▇▇ County, Indiana.
"GREENFIELD PROJECT" means any mine development project involving the
expenditure of greater than $5,000,000 for the development of mine
infrastructure to access unmined reserves.
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"GUARANTY" and, with correlative meaning, "GUARANTEED" means, with
respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect guaranteeing any Debt
of any other Person in any manner, whether directly or indirectly,
including (without limitation) obligations incurred through an agreement,
contingent or otherwise, by such Person:
(a) to purchase such Debt or any property constituting security
therefor;
(b) to advance or supply funds (i) for the purchase or payment of
such Debt, or (ii) to maintain any working capital or other balance
sheet condition or any income statement condition of any other Person
or otherwise to advance or make available funds for the purchase or
payment of such Debt;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Debt of the
ability of any other Person to make payment of the Debt; or
(d) otherwise to assure the owner of such Debt against loss in
respect thereof.
In any computation of the Debt of the obligor under any Guaranty, the
Debt that is the subject of such Guaranty shall be assumed to be a direct
obligation of such obligor. The amount of any Guaranty shall be equal to
the outstanding amount of the Debt guaranteed, or such lesser amount to
which the maximum exposure of such Person shall have been specifically
limited.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.04(b).
"INFORMATION MEMORANDUM" means the information memorandum dated July
1999 used by the Joint Arrangers in connection with the syndication of the
Commitments.
"INITIAL EXTENSION OF CREDIT" means the initial Borrowing hereunder.
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"INITIAL LENDERS" has the meaning specified in the recital of parties
to this Agreement.
"INITIAL PUBLIC OFFERING" has the meaning specified in Preliminary
Statement (1).
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"INTERCREDITOR AGREEMENT" has the meaning specified in Section
3.01(a)(xviii).
"INTEREST COVERAGE RATIO" means, at any date of determination, the
ratio of (a) Consolidated Cash Flow to (b) Consolidated Interest Expense
during the four consecutive fiscal quarters most recently ended for which
financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be; provided, however,
that for purposes of calculating the Interest Coverage Ratio for the fiscal
quarters of the Borrower ending December 31, 1999, March 31, 2000 and June
30, 2000, each component of the Interest Coverage Ratio for purposes of
this definition shall be the actual amount of such component for the period
ending at the end of such fiscal quarter since October 1, 1999 multiplied
by a fraction the numerator of which is four and the denominator of which
is the number of fiscal quarters that have elapsed since October 1, 1999.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six or,
if available to each Appropriate Lender, nine or twelve months, as the
Borrower may, upon notice received by the Paying Agent not later than 12:00
noon (New York City time) on the third Business Day prior to the first day
of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance under a Facility that ends after any
principal repayment installment date for such Facility unless, after
giving effect to such selection, the aggregate principal amount of
Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date;
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(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVENTORY" means inventory held for sale or lease in the ordinary
course of business.
"INVESTMENT" means any investment, made in cash or by delivery of
property, by the Borrower or any of its Restricted Subsidiaries (a) in any
Person, whether by acquisition of stock, debt or other obligations or
Security, or by loan, guaranty of any debt, advance, capital contribution
or otherwise, or (b) in any property.
"JOINT ARRANGERS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Chase
Securities, Inc. and/or its Affiliates.
"LENDER PARTY" means any Lender or the Swing Line Bank.
"LENDERS" means the Initial Lenders and each Person that shall become
a Lender hereunder pursuant to Section 8.07 for so long as such Initial
Lender or Person, as the case may be, shall be a party to this Agreement.
"LIEN" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest, production payment or other encumbrance, or any
interest or title of any vendor, lessor, lender or other secured party to
or of such Person under any conditional sale or other title retention
agreement or Capital Lease, upon or with respect to any
Alliance Credit Agreement
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property or asset of such Person (including in the case of stock,
stockholder agreements, voting trust agreements and all similar
arrangements); provided, however, "Lien" shall not include any negative
pledge nor any royalty interest or overriding royalty interest under any
lease, sublease or other similar agreement entered into in the ordinary
course of business.
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c) the
Subsidiary Guaranty, (d) the Pledge Agreement, (e) the Fee Letter, (f) the
Intercreditor Agreement, and (g) the Assumption Agreement, in each case as
amended.
"LOAN PARTIES" means the Company, AROP and the Subsidiary Guarantors.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, operations, affairs, financial condition, assets or properties of
the Borrower and its Restricted Subsidiaries, taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of
the Borrower and its Restricted Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its payment obligations, its obligations
under Article V or any other material obligations under any Loan Document
to which it is a party, (c) the ability of any Subsidiary Guarantor to
perform its payment obligations or other material obligations under the
Subsidiary Guaranty, or (d) the validity or enforceability of any Loan
Document.
"MLP" has the meaning specified in Preliminary Statement (1).
"MLP AGREEMENT" means the First Amended and Restated Agreement of
Limited Partnership of Alliance Resource Partners, L.P., as amended, to the
extent permitted under the Loan Documents.
"MLP UNITS" has the meaning specified in Preliminary Statement (1).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
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"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, lease, transfer
or other disposition of any asset or the incurrence or issuance of any Debt
or the sale or issuance of any Capital Stock (including, without
limitation, any capital contribution) by any Person, the aggregate amount
of cash received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration) by or on behalf
of such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees, finder's fees and
other similar fees and commissions, and (b) the amount of taxes payable in
connection with or as a result of such transaction and (c) the amount of
any Debt secured by a Lien on such asset that, by the terms of the
agreement or instrument governing such Debt, is required to be repaid upon
such disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash, actually
paid to a Person that is not an Affiliate of such Person or any Loan Party
or any Affiliate of any Loan Party and are properly attributable to such
transaction or to the asset that is the subject thereof.
"NOTE" means a Term Note, a Working Capital Note or a Revolving Credit
Note.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement dated as
of August 16, 1999 among the Borrower and the purchasers of the Senior
Notes, pursuant to which the Senior Notes are issued, as amended, to the
extent permitted under the Loan Documents.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in Section
2.02(b).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, as used in the Pledge Agreement, the Notes, the
Solvency Certificates and the Subsidiary Guaranty, with respect to any Loan
Party, any payment, performance or other obligation of such Loan Party of
any kind under the Loan Documents, including, without limitation, any
liability of such Loan Party on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to
Alliance Credit Agreement
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judgment, liquidated, unliquidated, fixed, absolute or contingent, direct
or indirect, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f), including
without limitation, (a) the obligation to pay principal, interest, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any of
the foregoing that any Lender Party, in its sole discretion, may elect to
pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OPEN YEAR" has the meaning specified in Section 4.01(r)(iii).
"OTHER TAXES" has the meaning specified in Section 2.11(b).
"PARTNERSHIP AGREEMENT" means the partnership agreement of AROP, as
most recently amended in accordance with the terms of this Agreement.
"PAYING AGENT" has the meaning specified in the recital of parties to
this Agreement.
"PAYING AGENT'S ACCOUNT" means the account of the Paying Agent
maintained by the Paying Agent with Chase at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 323138721, or such other account as
the Paying Agent shall specify in writing to the Lender Parties.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED LIENS" means each of the following:
(a) Liens for property taxes, assessments or other
governmental charges which are not yet due and payable and
delinquent or the validity of which is being contested in good
faith in compliance with Section 5.01(b);
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens,
in each case, incurred in the ordinary course of business for
sums not yet due and payable or the amount, applicability or
validity thereof is being contested by the Borrower or such
Restricted Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Borrower or a Restricted
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Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Borrower or such
Restricted Subsidiary;
(c) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business (i) in
connection with workers' compensation, unemployment insurance
and other types of social security or retirement benefits, or
(ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety bonds,
appeal bonds, bids, leases (other than Capital Leases),
performance bonds, purchase, construction or sales contracts
and other similar obligations, in each case not incurred or
made in connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred purchase
price of property;
(d) any attachment or judgment Lien for the payment of
money in an aggregate amount not to exceed $10,000,000,
provided that the execution or other enforcement of such Liens
is effectively stayed and the claims secured thereby are
contested by the Borrower or such Restricted Subsidiary on a
timely basis in good faith and in appropriate proceedings, and
the Borrower or a Restricted Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books
of the Borrower or such Restricted Subsidiary; and
(e) leases or subleases granted to others, zoning
restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of
property or irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other
encumbrances incurred, created, assumed or permitted to exist
and arising by, through or under a landlord or owner of the
leased property, with or without consent of the lessee), and
not interfering with, the ordinary conduct of the business of
the Borrower or any of its Restricted Subsidiaries, provided
that such Liens do not, in the aggregate, materially detract
from the value of such property or impair the use of such
property.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
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"PLEDGE AGREEMENT" has the meaning specified in Section 3.01(a)(ii).
"PREFERRED STOCK" of any Person means any class of Capital Stock of
such Person that is preferred over any other class of Capital Stock of such
Person as to the payment of dividends or the payment of any amount upon
liquidation or dissolution of such Person.
"PREPAYMENT DATE" has the meaning specified in Section 2.05(b)(i).
"PRO RATA SHARE" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.04 or 6.01, such Lender's Revolving Credit Commitment
as in effect immediately prior to such termination) and the denominator of
which is the Revolving Credit Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.04 or 6.01, the Revolving
Credit Facility as in effect immediately prior to such termination).
"QUALIFYING SECURITIES" means readily marketable direct obligations of
the Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States to the extent owned by the
Borrower free and clear of all Liens (other than Liens created under the
Pledge Agreement) and having a remaining maturity not greater than 24
months and which have been pledged to, and are under the control of, the
Paying Agent pursuant to, and in accordance with the terms of, the Pledge
Agreement as Collateral for the Term Advances.
"REFERENCE BANKS" means Citicorp, Chase and Deutsche Bank AG, New York
Branch.
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Note Purchase Agreement, the Partnership
Agreement, the MLP Agreement, the Contribution Agreement and the Senior
Notes.
"REPURCHASE AGREEMENT" means any written agreement:
(a) that provides for (i) the transfer of one or more United
States Governmental Securities in an aggregate principal amount at
least equal to the
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amount of the Transfer Price (defined below) to the Borrower or any of
its Restricted Subsidiaries from an Acceptable Bank or an Acceptable
Broker-Dealer against a transfer of funds (the "TRANSFER PRICE") by
the Borrower or such Restricted Subsidiary to such Acceptable Bank or
Acceptable Broker-Dealer, and (ii) a simultaneous agreement by the
Borrower or such Restricted Subsidiary, in connection with such
transfer of funds, to transfer to such Acceptable Bank or Acceptable
Broker-Dealer the same or substantially similar United States
Governmental Securities for a price not less than the Transfer Price
plus a reasonable return thereon at a date certain not later than 365
days after such transfer of funds,
(b) in respect of which the Borrower or such Restricted
Subsidiary shall have the right, whether by contract or pursuant to
applicable law, to liquidate such agreement upon the occurrence of any
default thereunder, and
(c) in connection with the Borrower or such Restricted
Subsidiary, or an agent thereof, shall have taken all action required
by applicable law or regulations to perfect a Lien in such United
States Governmental Securities.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate Unused
Term Commitments at such time, (c) the aggregate Unused Working Capital
Commitments at such time and (d) the aggregate Unused Revolving Credit
Commitments at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender)
and outstanding at such time, (B) the Unused Term Commitment of such Lender
at such time, (C) Unused Working Capital Commitment of such Lender at such
time and (D) the Unused Revolving Credit Commitment of such Lender at such
time. For purposes of this definition, the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank shall be considered to be
owed to the Revolving Credit Lenders ratably in accordance with their
respective Revolving Credit Commitments.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or any of
its Subsidiaries.
"RESTRICTED PAYMENT" has the meaning set forth in Section 5.02(g).
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Borrower (a) of
which more than 50% (by number of votes) of each class of (i) Voting Stock,
and (ii) all other
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securities convertible into, exchangeable for or representing the right to
purchase, Voting Stock is beneficially owned, directly or indirectly, by
the Borrower, (b) which is organized under the laws of the United States or
any State thereof, (c) which maintains substantially all of its assets and
conducts substantially all of its business within the United States, and
(d) which is properly designated as such by the Borrower in the most recent
notice (or, prior to any such notice, on Schedule 4.01(b) hereto,
including, without limitation, Alliance Coal, LLC, a Delaware limited
liability company), with respect to such Subsidiary given by the Borrower
pursuant to and in accordance with the provisions of Section 5.02(r).
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(c).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving
Credit Lender, the amount set forth opposite such Lender's name on Schedule
I hereto under the caption "Revolving Credit Commitment", or, if such
Lender has entered into one or more Assignment and Acceptances, set forth
for such Lender in the Register maintained by the Paying Agent pursuant to
Section 8.07(d) as such Lender's "Revolving Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.04.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving Credit
Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially the
form of Exhibit A-3 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances and
Swing Line Advances made by such Lender, as amended.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SBHC" means Salomon Brothers Holding Company Inc.
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"SECURED ADVANCES" means Term Advances that are secured by Qualifying
Securities. For purposes of this definition, the amount of Term Advances
constituting Secured Advances on any day shall be equal to the aggregate
▇▇▇▇-to-market value of the Qualifying Securities held by the Paying Agent
as Collateral on such day which value shall be marked-to-market by the
Paying Agent from time to time but no less frequently than monthly.
"SECURED OBLIGATIONS" has the meaning specified in Section 2 of the
Pledge Agreement.
"SECURED PARTIES" means the Term Lenders.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SECURITY" has the meaning set forth in Section 2(a)(1) of the
Securities Act.
"SENIOR NOTE PERCENTAGE" means, at any time, an amount, expressed as a
percentage, equal to (a) the principal amount outstanding at such time
under the Senior Notes divided by (b) the sum of the principal amount
outstanding at such time under the Senior Notes plus the outstanding at
such time principal amount of the Term Advances.
"SENIOR NOTES" has the meaning specified in Preliminary Statement (2).
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"SOLVENCY CERTIFICATE" has the meaning set forth in Section
3.01(a)(xi).
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) 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, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) 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
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would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the 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.
"SPECIAL GENERAL PARTNER" means Alliance Resource GP, LLC, a Delaware
limited liability company, and its successors and permitted assigns as a
special general partner of AROP.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, joint venture, association, trust
or other entity of which (or in which) more than 50% of (a) the issued and
outstanding Capital Stock having ordinary voting power to elect a majority
of the board of directors of such corporation (irrespective of whether at
the time Capital Stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interests in the capital or profits of such partnership, limited
liability company, joint venture or association with ordinary voting power
to elect a majority of the board of directors (or Persons performing
similar functions) of such partnership, limited liability company, joint
venture or association, or (c) the beneficial interests in such trust or
other entity with ordinary voting power to elect a majority of the board of
trustees (or Persons performing similar functions) of such trust or other
entity, is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its Subsidiaries, or by one or
more of such Person's other Subsidiaries.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the Borrower listed
on Schedule II hereto and each other Restricted Subsidiary of the Borrower
that shall be required to execute and deliver a guaranty pursuant to
Section 5.01(j).
"SUBSIDIARY GUARANTY" has the meaning specified in Section
3.01(a)(iii).
"SURVIVING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after giving effect to the Transaction.
"SWAPS" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency or commodity swaps and hedging
obligations obligating such Person to make payments, whether periodically
or upon the happening of a contingency. For the purposes of this Agreement,
the amount of the obligation under any Swap shall be the amount determined
in respect thereof as of the end of the then most recently ended fiscal
quarter of such Person, based on the assumption that such Swap had
terminated at the end of such fiscal quarter, and in making such
determination, if any agreement relating to such Swap provides for the
netting of amounts payable by and to
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such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount so determined.
"SWING LINE ADVANCE" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.01(d) or (b) any Revolving Credit Lender pursuant to
Section 2.02(b).
"SWING LINE BANK" means Chase.
"SWING LINE BORROWING" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank pursuant to Section 2.01(d) or the
Revolving Credit Lenders pursuant to Section 2.02(b).
"SWING LINE COMMITMENT" means, with respect to the Swing Line Bank,
the amount of the Swing Line Facility set forth in Section 2.01(d), as such
amount may be reduced at or prior to such time pursuant to Section 2.04.
"SWING LINE FACILITY" has the meaning specified in Section 2.01(d).
"TAXES" has the meaning specified in Section 2.11(a).
"TERM ADVANCE" has the meaning specified in Section 2.01(a).
"TERM BORROWING" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"TERM COMMITMENT" means, with respect to any Term Lender at any time,
the amount set forth opposite such Lender's name on Schedule I hereto under
the caption "Term Commitment" or, if such Lender has entered into one or
more Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Paying Agent pursuant to Section 8.07(d) as such Lender's
"Term Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.04.
"TERM FACILITY" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"TERM LENDER" means any Lender that has a Term Commitment.
"TERM LOAN PERCENTAGE" means, at any time, a percentage equal to 100%
less the Senior Note Percentage at such time.
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"TERM NOTE" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
the Term Advance made by such Lender, as amended.
"TERMINATION DATE" means the earlier of August 16, 2004 and the date
of termination in whole of the Working Capital Commitments, the Revolving
Credit Commitments, the Swing Line Commitment and the Term Commitments
pursuant to Section 2.04 or 6.01.
"TRANSACTION" has the meaning specified in Preliminary Statement (2).
"TRANSACTION DOCUMENTS" means, collectively, the Loan Documents and
the Related Documents.
"TRANSFER" means, with respect to any Person, any transaction in which
such Person sells, conveys, abandons, transfers, leases (as lessor), or
otherwise disposes of any of its assets; provided, however, that "Transfer"
shall not include (a) the granting of any Liens permitted to be granted
pursuant to this Agreement, (b) any transfer of assets permitted pursuant
to Section 5.02(d), (c) the making of any Restricted Payment permitted
pursuant to Section 5.02(g) or (d) the making of any Investments permitted
pursuant to Section 5.02(f).
"TYPE" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UNITED STATES GOVERNMENTAL SECURITY" means any direct obligation of,
or obligation guaranteed by, the United States of America, or any agency
controlled or supervised by or acting as an instrumentality of the United
States of America pursuant to authority granted by the Congress of the
United States of America, so long as such obligation or guarantee shall
have the benefit of the full faith and credit of the United Sates of
America which shall have been pledged pursuant to authority granted by the
Congress of the United States of America.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary which is not a Restricted
Subsidiary.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time (a) such Lender's Revolving Credit
Commitment at such time minus (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Advances and Swing Line Advances made by
such Lender (in its capacity as a Lender and not as the
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Swing Line Bank) and outstanding at such time plus (ii) such Lender's Pro
Rata Share of the aggregate principal amount of all Swing Line Advances
made by the Swing Line Bank pursuant to Section 2.01(d) and outstanding at
such time.
"UNUSED TERM COMMITMENT" means with respect to any Term Lender at any
time, such Lender's unused Term Commitment at such time.
"UNUSED WORKING CAPITAL COMMITMENT" means, with respect to any Working
Capital Lender at any time (a) such Lender's Working Capital Commitment at
such time minus (b) the aggregate principal amount of all Working Capital
Advances made by such Lender (in its capacity as a Lender) and outstanding
at such time.
"VOTING STOCK" means, (i) Securities of any class of classes, the
holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the directors (or Persons performing similar
functions) or (ii) in the case of a partnership, limited liability company
or joint venture, interests in the profits or capital thereof entitling the
holders of such interests to approve major business actions.
"WHOLLY OWNED" means, at any time, with respect to any Subsidiary of
any Person, a Subsidiary of which at least ninety-eight percent (98%) of
all of the equity interests (except directors' qualifying shares) and
Voting Stock are owned by any one or more of such Person and such Person's
other Wholly Owned Subsidiaries at such time.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
"WORKING CAPITAL ADVANCE" has the meaning specified in Section
2.01(b).
"WORKING CAPITAL BORROWING" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the Working
Capital Lenders.
"WORKING CAPITAL COMMITMENT" means, with respect to any Working
Capital Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Working Capital Commitment",
or, if such Lender has entered into one or more Assignment and Acceptances,
set forth for such Lender in the Register maintained by the Paying Agent
pursuant to Section 8.07(d) as such Lender's "Working Capital Commitment",
as such amount may be reduced at or prior to such time pursuant to Section
2.04.
"WORKING CAPITAL FACILITY" means, at any time, the aggregate amount of
the Working Capital Lenders' Working Capital Commitments at such time.
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"WORKING CAPITAL LENDER" means any Lender that has a Working Capital
Commitment.
"WORKING CAPITAL NOTE" means a promissory note of the Borrower payable
to the order of any Working Capital Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower
to such Lender resulting from the Working Capital Advances made by such
Lender, as amended.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions . In this Agreement and the other Loan Documents in the computation
of periods of time from a specified date to a later specified date, the word
"FROM" means "from and including" and the words "TO" and "UNTIL" each mean "to
but excluding". References in the Loan Documents to any agreement or contract
"AS AMENDED" shall mean and be a reference to such agreement or contract as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms.
SECTION 1.03. Accounting Terms . All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles in effect from time to time ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances . (a) The Term Advances. Each Term Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
single advance (a "TERM ADVANCE") to the Borrower on the Effective Date in an
amount not to exceed such Lender's Term Commitment at such time. The Term
Borrowing shall consist of Term Advances made simultaneously by the Term Lenders
ratably according to their Term Commitments. Amounts borrowed under this Section
2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Working Capital Advances. Each Working Capital Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "WORKING CAPITAL ADVANCE") to the Borrower from time to time on
any Business Day during the period from the date hereof until the Termination
Date in an amount for each such Advance not to exceed such Lender's Unused
Working Capital Commitment at such time. Each Working Capital Borrowing shall be
in an aggregate amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof in the case of Base Rate Advances, and in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case
of Eurodollar Rate Advances and shall consist of Working Capital Advances made
simultaneously by the Working Capital Lenders
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ratably according to their Working Capital Commitments. Within the limits of
each Working Capital Lender's Unused Working Capital Commitment in effect from
time to time, the Borrower may borrow under this Section 2.01(b), prepay
pursuant to Section 2.05(a) and reborrow under this Section 2.01(b).
(c) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the Borrower from time to time
on any Business Day during the period from the date hereof until the Termination
Date in an amount for each such Advance not to exceed such Lender's Unused
Revolving Credit Commitment at such time. Each Revolving Credit Borrowing shall
be in an aggregate amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof in the case of Base Rate Advances and in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case
of Eurodollar Rate Advances (other than, in each case, a Borrowing the proceeds
of which shall be used solely to repay or prepay in full outstanding Swing Line
Advances) and shall consist of Revolving Credit Advances made simultaneously by
the Revolving Credit Lenders ratably according to their Revolving Credit
Commitments. Within the limits of each Revolving Credit Lender's Unused
Revolving Credit Commitment in effect from time to time, the Borrower may borrow
under this Section 2.01(c), prepay pursuant to Section 2.05(a) and reborrow
under this Section 2.01(c).
(d) The Swing Line Advances. The Borrower may request the Swing Line
Bank to make, and the Swing Line Bank agrees to make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the Borrower from time
to time on any Business Day during the period from the date hereof until the
Termination Date (i) in an aggregate outstanding amount not to exceed at any
time $10,000,000 (the "SWING LINE FACILITY") and (ii) in an amount for each such
Swing Line Borrowing not to exceed the aggregate of the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time. No Swing Line Advance
shall be used for the purpose of funding the payment of principal of any other
Swing Line Advance. Each Swing Line Borrowing shall be in an amount of $500,000
or an integral multiple of $100,000 in excess thereof and shall be made as a
Base Rate Advance. Within the limits of the Swing Line Facility and within the
limits referred to in clause (ii) above the Borrower may borrow under this
Section 2.01(d), repay pursuant to Section 2.03(d) or prepay pursuant to Section
2.05(a) and reborrow under this Section 2.01(d).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
in Section 2.02(b), each Borrowing shall be made on notice, given not later than
12:00 noon (New York City time) on the third Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate
Advances, or the first Business Day prior to the date of the proposed Borrowing
in the case of a Borrowing consisting of Base Rate Advances, by the Borrower to
the Paying Agent, which shall give to each Appropriate Lender prompt notice
thereof by telecopier. Each such notice of a Borrowing (a "NOTICE OF BORROWING")
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shall be by telephone, confirmed immediately in writing, or by telecopier, in
substantially the form of Exhibit B hereto, specifying therein the requested (i)
date of such Borrowing, (ii) Facility under which such Borrowing is to be made,
(iii) Type of Advances comprising such Borrowing, (iv) aggregate amount of such
Borrowing and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Appropriate Lender
shall, before 12:00 noon (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the Paying
Agent at the Paying Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing in accordance with the respective Commitments under
the applicable Facility of such Lender and the other Appropriate Lenders. After
the Paying Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Paying Agent will make such funds
available to the Borrower by crediting the Borrower's Account; provided,
however, that, in the case of any Revolving Credit Borrowing, the Paying Agent
shall first make a portion of such funds equal to the aggregate principal amount
of any Swing Line Advances made by the Swing Line Bank and by any other
Revolving Credit Lender and outstanding on the date of such Revolving Credit
Borrowing, plus interest accrued and unpaid thereon to and as of such date,
available to the Swing Line Bank and such other Revolving Credit Lenders for
repayment of such Swing Line Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not later
than 12:00 noon (New York City time) on the date of the proposed Swing Line
Borrowing, by the Borrower to the Swing Line Bank and the Paying Agent. Each
such notice of a Swing Line Borrowing (a "NOTICE OF SWING LINE BORROWING") shall
be by telephone, confirmed immediately in writing, or by telecopier, specifying
therein the requested (i) date of such Borrowing, (ii) amount of such Borrowing
and (iii) maturity of such Borrowing (which maturity shall be no later than the
thirtieth day after the requested date of such Borrowing). The Swing Line Bank
will make the amount thereof available to the Paying Agent at the Paying Agent's
Account, in same day funds. After the Paying Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Paying Agent will make such funds available to the Borrower by crediting the
Borrower's Account. Upon written demand by the Swing Line Bank, with a copy of
such demand to the Paying Agent, each other Revolving Credit Lender shall
purchase from the Swing Line Bank, and the Swing Line Bank shall sell and assign
to each such other Revolving Credit Lender, such other Lender's Pro Rata Share
of such outstanding Swing Line Advance as of the date of such demand, by making
available for the account of its Applicable Lending Office to the Paying Agent
for the account of the Swing Line Bank, by deposit to the Paying Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Swing Line Advance to be purchased by such Lender. The
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line
Advance on (i) the Business Day on which demand therefor is made by the Swing
Line Bank, provided that notice of such demand is given not later than 12:00
noon (New York City time) on such Business Day or (ii) the first
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Business Day next succeeding such demand if notice of such demand is given after
such time. Upon any such assignment by the Swing Line Bank to any other
Revolving Credit Lender of a portion of a Swing Line Advance, the Swing Line
Bank represents and warrants to such other Lender that the Swing Line Bank is
the legal and beneficial owner of such interest being assigned by it, but makes
no other representation or warranty and assumes no responsibility with respect
to such Swing Line Advance, the Loan Documents or any Loan Party. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such Swing Line Advance available to the Paying Agent, such Revolving Credit
Lender agrees to pay to the Paying Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Swing Line Bank until the date such amount is paid to the Paying Agent, at the
Federal Funds Rate. If such Lender shall pay to the Paying Agent such amount for
the account of the Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for the initial
Borrowing hereunder or for any Borrowing if the aggregate amount of such
Borrowing is less than $5,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.06(d)(ii), 2.08(b)(iii) or 2.09(c) or (d) and (i) the Revolving Credit
Advances and the Revolving Credit Advances may not be outstanding as part of
more than eight separate Borrowings in aggregate.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall
be irrevocable and binding on the Borrower.
(e) Unless the Paying Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Paying Agent such Lender's ratable portion of such Borrowing, the Paying
Agent may assume that such Lender has made such portion available to the Paying
Agent on the date of such Borrowing in accordance with subsection (a) of this
Section 2.02 and the Paying Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Paying Agent, such Lender and the Borrower severally agree to repay or pay
to the Paying Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid or paid to the Paying Agent at
(i) in the case of the Borrower, the interest rate applicable at such time under
Section 2.06 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall pay to the Paying Agent
such corresponding amount,
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such amount so paid shall constitute such Lender's Advance as part of such
Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Repayment of Advances. (a) Term Advances. The Borrower
shall repay to the Paying Agent for the ratable account of the Term Lenders the
aggregate outstanding principal amount of the Term Advances on the following
dates in amounts equal to the percentage indicated of the principal amount of
Term Advances outstanding on October 31, 2001 (as such amounts shall be reduced
as a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05):
Date Percentage
---- ----------
October 31, 2001 7.50%
January 31, 2002 7.50%
April 30, 2002 7.50%
July 31, 2002 7.50%
October 31, 2002 7.50%
January 31, 2003 7.50%
April 30, 2003 7.50%
July 31, 2003 7.50%
October 31, 2003 10.00%
January 31, 2004 10.00%
April 30, 2004 10.00%
August 16, 2004 10.00%
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Advances outstanding on such date.
(b) Working Capital Advances. The Borrower shall repay to the Paying
Agent for the ratable account of the Working Capital Lenders on the Termination
Date the aggregate principal amount of the Working Capital Advances then
outstanding.
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(c) Revolving Credit Advances. The Borrower shall repay to the Paying
Agent for the ratable account of the Revolving Credit Lenders on the Termination
Date the aggregate principal amount of the Revolving Credit Advances then
outstanding.
(d) Swing Line Advances. The Borrower shall repay to the Paying Agent
for the account of the Swing Line Bank and each other Revolving Credit Lender
that has made a Swing Line Advance the outstanding principal amount of each
Swing Line Advance made by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which maturity shall
be no later than the thirtieth day after the requested date of such Borrowing)
and the Termination Date.
SECTION 2.04. Termination or Reduction of the Commitments . (a)
Optional. The Borrower may, upon at least three Business Days' notice to the
Paying Agent, terminate in whole or reduce in part the Unused Term Commitments,
the Unused Working Capital Commitments and the Unused Revolving Credit
Commitments; provided, however, that each partial reduction of a Facility (i)
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and (ii) shall be made ratably among the
Appropriate Lenders in accordance with their Commitments with respect to such
Facility.
(b) Mandatory. (i) On the date of the Term Borrowing, after giving
effect to such Term Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term Advances, the aggregate Term Commitments of
the Term Lenders shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate Term Commitments
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term Advances then outstanding.
(ii) If, on the fourth anniversary of the Effective Date, the
aggregate Revolving Credit Commitments of the Revolving Credit Lenders exceed
$15,000,000, then, on such day, the aggregate Revolving Credit Commitments of
the Revolving Credit Lenders shall be automatically and permanently reduced, on
a pro rata basis, in an amount such that, after giving effect to such reduction,
the aggregate Revolving Credit Commitments equal $15,000,000.
(iii) The Swing Line Facility shall be permanently reduced from time
to time on the date of each reduction in the Revolving Credit Facility by the
amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may, upon at
least one Business Day's notice in the case of Base Rate Advances and three
Business Days' notice in the case of Eurodollar Rate Advances, in each case to
the Paying Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall,
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prepay the outstanding aggregate principal amount of the Advances comprising
part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof in the case of Base Rate Advances and $5,000,000 or an integral
multiple of $1,000,000 in excess thereof in the case of Eurodollar Rate Advances
and if any prepayment of a Eurodollar Rate Advance is made on a date other than
the last day of an Interest Period for such Advance, the Borrower shall also pay
any amounts owing pursuant to Section 8.04(c). Each such prepayment of any Term
Advances shall be applied to the installments thereof on a pro rata basis.
(b) Mandatory. (i) The Borrower shall, on the date (the "PREPAYMENT
DATE") that is the earlier of (A) the first anniversary of the date of receipt
of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from the
sale, lease, transfer or other disposition of any assets of the Borrower or any
of its Subsidiaries (other than any sale, lease, transfer or other disposition
of assets pursuant to clause (i), (ii ), (iii) or (iv) of Section 5.02(e)) and
(B) the date on which the Borrower is required to apply any portion of such Net
Cash Proceeds to prepay the Senior Notes pursuant to the Note Purchase
Agreement, but only to the extent such Net Cash Proceeds shall not have been
reinvested prior to such date in substantially similar assets constituting
Investments permitted under Section 5.02(f), prepay an aggregate principal
amount of the Term Advances comprising part of the same Borrowings in an amount
equal to the sum of (x) the Term Loan Percentage on the Prepayment Date of such
Net Cash Proceeds and (y) the amount of such Net Cash Proceeds that shall not be
required to prepay the Senior Notes on such Prepayment Date. Each such
prepayment of the Term Advances made on or after October 31, 2001 shall be
applied to the installments due thereon pursuant to Section 2.03(a) on a pro
rata basis.
(ii) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Revolving Credit Advances comprising part of the same
Borrowings and the Swing Line Advances in an amount equal to the amount by which
(A) the sum of the aggregate principal amount of (x) the Revolving Credit
Advances and (y) the Swing Line Advances then outstanding exceeds (B) the
Revolving Credit Facility on such Business Day.
(iii) Prepayments of the Revolving Credit Facility made pursuant to
clause (ii) shall be first applied to prepay Swing Line Advances then
outstanding until such Advances are paid in full and second applied to prepay
Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full.
(iv) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Working Capital Advances comprising part of the same
Borrowings in an amount
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equal to the amount by which (A) the aggregate principal amount of the Working
Capital Advances then outstanding exceeds (B) the Working Capital Facility on
such Business Day.
(v) The Borrower shall, on the last day of each of the first three
fiscal quarters and the last day of each fiscal year of the Borrower, prepay the
principal amount of each Swing Line Borrowing in excess of $2,500,000
outstanding on such day.
(vi) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid.
SECTION 2.06. Interest . (a) Scheduled Interest. The Borrower shall
pay interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin in
effect from time to time, which ratio shall be determined in accordance
with the definition of that term, payable in arrears quarterly on the last
day of each fiscal quarter during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect prior to the first day of such Interest Period, which ratio shall be
determined in accordance with the definition of that term, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable under the Loan Documents that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid,
in the case of interest, on the Type of Advance on which such interest
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has accrued pursuant to clause (a)(i) or (a)(ii) above and, in all other cases,
on Base Rate Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly after
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.08 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the Paying
Agent shall give notice to the Borrower and each Appropriate Lender of the
applicable Interest Period and the applicable interest rate determined by the
Paying Agent for purposes of clause (a)(i) or (a)(ii) above, and the applicable
rate, if any, furnished by each Reference Bank at the Borrower s request for the
purpose of determining the applicable interest rate under clause (a)(ii) above.
(d) Interest Rate Determination. (i) In the event that the Borrower
requests, in accordance with the definition of "Eurodollar Rate", that the
Eurodollar Rate be based on interest rate quotes received from the Reference
Banks, each Reference Bank agrees to furnish to the Paying Agent timely
information for the purpose of determining each Eurodollar Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Paying Agent for the purpose of determining any such interest rate, the Paying
Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish timely
information to the Paying Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances and the Eurodollar Rate cannot otherwise be determined
in accordance with clause (b) of the definition of "Eurodollar Rate", the Paying
Agent shall forthwith notify the Borrower and the Lenders that the interest rate
cannot be determined pursuant to said clause (b) for such Eurodollar Rate
Advances, and, unless the Eurodollar Rate cannot be determined by reference to
clause (a) of the definition of Eurodollar Rate, then
(A) each such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(B) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Paying Agent
shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION 2.07. Fees. (a) Commitment Fee. The Borrower shall pay to the
Paying Agent for the account of the Lenders a commitment fee, from the date
hereof in the case of each Initial Lender and from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date (or in the case of the Term
Commitments, until the Term Borrowing is made), payable in arrears
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on the date of the initial Borrowing hereunder, thereafter, in the case of the
Revolving Credit Commitments and Working Capital Commitments, quarterly on the
last day of each fiscal quarter, commencing with the fiscal quarter ending at
September 30, 1999, and on the Termination Date, at a percentage per annum equal
to the Applicable Percentage at such time on the average daily unused portion of
each Appropriate Lender's Term Commitment for the period until the Term
Borrowing is made and on the sum of the average daily Unused Revolving Credit
Commitment of such Lender plus its Pro Rata Share of the average daily
outstanding Swing Line Advances during such quarter plus the average daily
Unused Working Capital Commitment of such Lender; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b) Agents' Fees. The Borrower shall pay to each Agent for its own
account such fees as may from time to time be agreed between the Borrower and
such Agent.
SECTION 2.08. Conversion of Advances. (a) Optional. The Borrower may
on any Business Day, upon notice given to the Paying Agent not later than 12:00
noon (New York City time) on the third Business Day prior to the date of the
proposed Conversion or continuation, in the case of the Conversion or
continuation of any Advances into or as Eurodollar Rate Advances, and on the
same Business Day, in the case of the Conversion of any Advances into Base Rate
Advances, and subject, in each case, to the provisions of Sections 2.06 and
2.09, Convert (or in the case of Eurodollar Rate Advances, continue) all or any
portion of the Advances of one Type comprising the same Borrowing into Advances
of the other Type; provided, however, that any Conversion of Eurodollar Rate
Advances into Base Rate Advances or continuation of Eurodollar Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(c), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility. Each such notice of Conversion or continuation shall, within the
restrictions specified above, specify (i) the date of such Conversion or
continuation, (ii) the Advances to be Converted or continued and (iii) if such
Conversion or continuation is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
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(ii) If the Borrower shall provide a notice of Conversion or
continuation and fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Paying Agent will forthwith
so notify the Borrower and the Appropriate Lenders, whereupon each such
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into or continue as a Eurodollar Rate Advance
with an interest period of one month. In addition, if the Borrower shall fail to
provide a timely notice of Conversion or continuation for any Eurodollar Rate
Advance, such Eurodollar Rate Advance will automatically Convert into a Base
Rate Advance.
(iii) Upon the occurrence and during the continuance of any Event of
Default, (x) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(y) the obligation of the Lenders to make, or to Convert Advances into or to
continue Eurodollar Rate Advances as, Eurodollar Rate Advances shall be
suspended during such continuance.
SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the cost to any Lender
Party of agreeing to make or of making, funding or maintaining Eurodollar Rate
Advances (excluding, for purposes of this Section 2.09, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.11 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Paying Agent), pay to the Paying Agent for the account of such Lender Party
additional amounts sufficient to compensate such Lender Party for such increased
cost. A certificate as to the amount of such increased cost, submitted to the
Borrower by such Lender Party, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority enacted, promulgated, issued or made after the date
hereof (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender Party or
any corporation controlling such Lender Party and that the amount of such
capital is increased by or based upon the existence of such Lender Party's
commitment to lend hereunder and other commitments of such type, then, upon
demand by such Lender Party or such corporation (with a copy of such demand to
the Paying Agent), the Borrower shall pay to the Paying Agent for the account of
such Lender Party, from time to time as specified by such Lender Party,
additional
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amounts sufficient to compensate such Lender Party in the light of such
circumstances, to the extent that such Lender Party reasonably determines such
increase in capital to be allocable to the existence of such Lender Party's
commitment to lend hereunder. A certificate as to such amounts submitted to the
Borrower by such Lender Party shall be conclusive and binding for all purposes,
absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least 50% of the then aggregate unpaid principal
thereof notify the Paying Agent that the Eurodollar Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for such Interest
Period, the Paying Agent shall forthwith so notify the Borrower and the
Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance under such
Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Paying Agent shall notify the Borrower
that such Lenders have determined that the circumstances causing such suspension
no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof shall make it unlawful, or any central bank or
other governmental authority shall assert that it is unlawful, for any Lender or
its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Paying Agent, (i) each Eurodollar Rate Advance under
each Facility under which such Lender has a Commitment will automatically, upon
such demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Paying Agent shall notify the Borrower
that such Lender has determined that the circumstances causing such suspension
no longer exist.
(e) All amounts paid hereunder shall be without duplication of any
amounts included within the definition of the term "Eurodollar Rate".
SECTION 2.10. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.14), not
later than 12:00 noon (New York City time) on the day when due in U.S. dollars
to the Paying Agent at the Paying Agent's Account in same day funds, with
payments being received by the Paying Agent after such time being deemed to have
been received on the next succeeding Business Day. The Paying Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrower is in respect of principal, interest, commitment fees or any other
obligation then payable hereunder and under the
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Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d) or upon the purchase by any Revolving Credit Lender of any Swing
Line Advance pursuant to Section 2.02(b), from and after the effective date of
such Assignment and Acceptance or purchase, as the case may be, the Paying Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned or purchased thereby to the Lender Party assignee or purchaser
thereunder, and, in the case of an Assignment and Acceptance, the parties to any
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder (after giving effect to any period of grace) or, in the case
of a Lender, under the Note held by such Lender, to charge from time to time, to
the fullest extent permitted by law, against any or all of the Borrower's
accounts with such Lender Party or such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall be made
by the Paying Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of fees shall be made by the Paying Agent on the basis of a year
of 360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or
fees are payable. Each determination by the Paying Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Paying Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the Paying Agent
may assume that the Borrower has made such payment in full to the Paying Agent
on such date and the Paying Agent may, in reliance
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upon such assumption, cause to be distributed to each such Lender Party on such
due date an amount equal to the amount then due such Lender Party. If and to the
extent the Borrower shall not have so made such payment in full to the Paying
Agent, each such Lender Party shall repay to the Paying Agent forthwith on
demand such amount distributed to such Lender Party together with interest
thereon, for each day from the date such amount is distributed to such Lender
Party until the date such Lender Party repays such amount to the Paying Agent,
at the Federal Funds Rate.
(f) If the Paying Agent receives funds for application to the
obligations of the Loan Parties under the Loan Documents under circumstances for
which the Loan Documents do not specify the Advances or the Facility to which,
or the manner in which, such funds are to be applied, the Paying Agent shall
distribute such funds to each Lender Party ratably in accordance with such
Lender Party's proportionate share of the principal amount of all outstanding
Advances then due and payable in repayment or prepayment of such of the
outstanding Advances or other obligations owed to such Lender Party and shall
return any unused funds to the Borrower.
SECTION 2.11. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.10,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and each Agent,
taxes that are imposed on its overall net income by the United States and taxes
that are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or such Agent, as the case may be, is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction of such Lender Party's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "TAXES").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender Party or any Agent,
(i) the sum payable by the Borrower shall be increased as may be necessary so
that after the Borrower and the Paying Agent have made all required deductions
(including deductions applicable to additional sums payable under this Section
2.11) such Lender Party or such Agent, 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 all such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of,
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performance under, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "OTHER TAXES").
(c) The Borrower shall indemnify each Lender Party and each Agent for
and hold them harmless against the full amount of Taxes and Other Taxes, and for
the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.11, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender Party or
such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Paying Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Paying Agent, at
such address, an opinion of counsel acceptable to the Paying Agent stating that
such payment is exempt from Taxes. For purposes of subsections (d) and (e) of
this Section 2.11, the terms "UNITED STATES" and "UNITED STATES PERSON" shall
have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter as requested
in writing by the Borrower (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Paying Agent and the
Borrower with two original Internal Revenue Service forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender Party at the time such
Lender Party first becomes a party to this Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender Party becomes a
party to this Agreement, the Lender Party assignor was entitled to payments
under subsection (a) of this Section 2.11 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be
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imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form 1001 or 4224, that the applicable Lender Party reasonably
considers to be confidential, such Lender Party shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.11
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
SECTION 2.12. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.07) (a) on account of obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
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price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered; provided further that, so long as the obligations under the Loan
Documents shall not have been accelerated, any excess payment received by any
Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders. The Borrower agrees that any Lender Party so purchasing an
interest or participating interest from another Lender Party pursuant to this
Section 2.12 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such interest
or participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.13. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely (a)
in the case of the Term Advances (i) in part (to the extent of approximately
$15,500,000) to purchase Qualifying Securities to be liquidated for the sole
purpose of funding capital expenditures of the Borrower and its Subsidiaries
substantially as set forth in the Business Plan delivered to the Paying Agent
from time to time pursuant to Section 5.03(d), and (ii) in part (to the extent
of approximately $34,500,000) to fund a distribution by the Company to Alliance
Resource Holdings, Inc. or such other Affiliate as the Company may elect on the
Effective Date, (b) in the case of the Working Capital Advances, to provide
working capital for the Borrower and its Subsidiaries and to fund cash
distributions to the holders of the MLP Units, and (c) in the case of the
Revolving Credit Advances, for general corporate purposes, including, without
limitation, to finance acquisitions and capital expenditures of the Borrower and
its Subsidiaries substantially as set forth in the Business Plan delivered to
the Paying Agent from time to time pursuant to Section 5.03(d).
SECTION 2.14. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower except for a Defaulted
Advance that is being contested in good faith by such Defaulting Lender, and
(iii) the Borrower shall be required to make any payment hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then the
Borrower may, so long as no Default shall occur or be continuing at such time
and to the fullest extent permitted by applicable law, set off and otherwise
apply the obligation of the Borrower to make such payment to or for the account
of such Defaulting Lender against the obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that, on any date, the Borrower shall
so set off and otherwise apply its obligation to make any such payment against
the obligation of such Defaulting Lender to make any such Defaulted Advance on
or prior to such date, the amount so set off and otherwise applied by the
Borrower shall constitute for all purposes of this Agreement and the other Loan
Documents an Advance by such Defaulting Lender made on the date of such setoff
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. Such Advance shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted
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Advance was originally required to have been made pursuant to Section 2.01, even
if the other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Paying Agent at any time the
Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by the
Paying Agent as specified in subsection (b) or (c) of this Section 2.14.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Paying Agent for
the account of such Defaulting Lender, then the Paying Agent may, on its behalf
or on behalf of such other Agents or such other Lender Parties and to the
fullest extent permitted by applicable law, apply at such time the amount so
paid by the Borrower to or for the account of such Defaulting Lender to the
payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. In the event that the Paying Agent shall so apply any such
amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Paying Agent shall constitute for all purposes of this Agreement
and the other Loan Documents payment, to such extent, of such Defaulted Amount
on such date. Any such amount so applied by the Paying Agent shall be retained
by the Paying Agent or distributed by the Paying Agent to such other Agents or
such other Lender Parties, ratably in accordance with the respective portions of
such Defaulted Amounts payable at such time to the Paying Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Paying Agent, such other Agents and such other Lender
Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to them,
in their capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Agents;
(ii) second, to the Swing Line Bank for any Defaulted Amounts then
owing to it, in its capacity as such; and
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(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Paying Agent pursuant to this subsection (b), shall be applied by the Paying
Agent as specified in subsection (c) of this Section 2.14.
(c) In the event that, at any one time (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, any Agent or any other Lender
Party shall be required to pay or distribute any amount hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then the
Borrower or such Agent or such other Lender Party shall pay such amount to the
Paying Agent to be held by the Paying Agent, to the fullest extent permitted by
applicable law, in escrow or the Paying Agent shall, to the fullest extent
permitted by applicable law, hold in escrow such amount otherwise held by it.
Any funds held by the Paying Agent in escrow under this subsection (c) shall be
deposited by the Paying Agent in an interest bearing account at a bank (the
"ESCROW Bank") selected by the Paying Agent at the time, in the name and under
the control of the Paying Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be the Escrow Bank's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Paying Agent in escrow under, and applied by the Paying
Agent from time to time in accordance with the provisions of, this subsection
(c). The Paying Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Paying Agent or any other Lender Party, as and when such
Advances or amounts are required to be made or paid and, if the amount so held
in escrow shall at any time be insufficient to make and pay all such Advances
and amounts required to be made or paid at such time, in the following order of
priority:
(i) first, to the Agents for any amounts then due and payable by such
Defaulting Lender to them hereunder, in their capacities as such, ratably
in accordance with such respective amounts then due and payable to the
Agents;
(ii) second, to the Swing Line Bank for any amounts then due and
payable to it hereunder, in its capacity as such, by such Defaulting
Lender;
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(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Paying Agent in
escrow at such time with respect to such Lender Party shall be distributed by
the Paying Agent to such Lender Party and applied by such Lender Party to the
obligations owing to such Lender Party at such time under this Agreement and the
other Loan Documents ratably in accordance with the respective amounts of such
obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.14 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.15. Evidence of Debt. (a) Each Lender Party shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Paying Agent) to the effect that a promissory note or
other evidence of indebtedness is required or appropriate in order for such
Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Paying Agent, a Working Capital Note, a Term Note and a Revolving Credit
Note, as applicable, in substantially the form of Exhibits ▇-▇, ▇-▇ and A-3
hereto, respectively, payable to the order of such Lender Party in a principal
amount equal to the Working Capital Commitment, the Term Commitment and the
Revolving Credit Commitment, respectively, of such Lender Party. All references
to Notes in the Loan Documents shall mean Notes, if any, to the extent issued
hereunder.
(b) The Register maintained by the Paying Agent pursuant to Section
8.07(d) shall include a control account, and a subsidiary account for each
Lender Party, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and
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payable from the Borrower to each Lender Party hereunder, and (iv) the amount of
any sum received by the Paying Agent from the Borrower hereunder and each Lender
Party's share thereof.
(c) Entries made in good faith by the Paying Agent in the Register
pursuant to subsection (b) above, and by each Lender Party in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender Party and, in the
case of such account or accounts, such Lender Party, under this Agreement,
absent manifest error; provided, however, that the failure of the Paying Agent
or such Lender Party to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrower under this Agreement.
SECTION 2.16. Replacement of Certain Lenders. If any Lender (a
"SUBJECT LENDER") (a) is a Defaulting Lender that owes a Defaulted Advance to
the Borrower, (b) makes demand upon the Borrower for (or if the Borrower is
otherwise required to pay) amounts pursuant to Section 2.09(a) or (b) or Section
2.11 or (c) gives notice pursuant to Section 2.09(d) requiring a Conversion of
such Subject Lender's Eurodollar Rate Advances to Base Rate Advances or
suspending such Lender's obligation to make Advances as, or to Convert or
continue Advances into or as, Eurodollar Rate Advances, the Borrower may, within
90 days after receipt by the Borrower of such demand or notice (or the
occurrence of such other event causing the Borrower to be required to pay such
compensation), as the case may be, give notice (a "REPLACEMENT NOTICE") in
writing to the Paying Agent and such Subject Lender of its intention to replace
such Subject Lender with an Eligible Assignee designated in such Replacement
Notice (a "REPLACEMENT LENDER"). Such Subject Lender shall, subject to the
payment to such Subject Lender of any amounts due pursuant to Sections 2.09(a)
and (b) and Section 2.11 and all other amounts then owing to it under the Loan
Documents assign, in accordance with Section 8.07, all of its Commitments,
Advances, Notes and other rights and obligations under this Agreement and all
other Loan Documents to such proposed Eligible Assignee. Promptly upon the
effective date of an assignment described above, the Borrower shall issue a
replacement Note or Notes, as the case may be, to such Replacement Lender and
such Replacement Lender shall become a "Lender" for all purposes under this
Agreement and the other Loan Documents.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit .
The obligation of each Lender to make an Advance on the occasion of the Initial
Extension of Credit hereunder is subject to the satisfaction of the following
conditions precedent before or concurrently with the Initial Extension of
Credit:
(a) The Paying Agent shall have received on or before the day of the
Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Paying
Agent (unless otherwise specified) and (except for the Notes) in sufficient
copies for each Lender Party:
(i) The Notes payable to the order of the Lenders that have
requested Notes prior to the Effective Date.
(ii) A pledge agreement in substantially the form of Exhibit D
hereto (as amended, the "PLEDGE AGREEMENT"), duly executed by the
Company and AROP, together with:
(A) evidence that the Qualified Securities have been
credited to the Securities Account (as defined in the Pledge
Agreement),
(B) duly executed copies of proper financing statements, to
be filed immediately after the Initial Extension of Credit under
the Uniform Commercial Code of all jurisdictions that the Paying
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests created
under the Pledge Agreement,
(C) completed requests for information, dated on or before
the date of the Initial Extension of Credit, listing all
effective financing statements on file in the office of the
county clerk of Oklahoma County, Oklahoma that name the Borrower
as debtor, together with copies of such other financing
statements, and
(D) evidence that all action that the Paying Agent may
reasonably deem necessary or desirable in order to perfect and
protect the first priority Liens created under the Pledge
Agreement has been taken.
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(iii) A guaranty in substantially the form of Exhibit E hereto
(together with each other guaranty and guaranty supplement delivered
pursuant to Section 5.01(j), in each case as amended, the "SUBSIDIARY
GUARANTY"), duly executed by each Subsidiary Guarantor.
(iv) Certified copies of the resolutions of or on behalf of each
Loan Party approving the Transaction and each Transaction Document to
which it is or is to be a party and/or authorizing the general partner
or managing member, as applicable, to act on behalf of such limited
partnership or limited liability company, as the case may be, and of
all documents evidencing other necessary action (including, without
limitation, all necessary general partner, managing member or other
similar action) and governmental and other third party approvals and
consents, if any, with respect to the Transaction and each Transaction
Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the
jurisdiction of organization or formation of each Loan Party and (if
applicable) each general partner or managing member of each Loan Party
dated reasonably near the date of the Initial Extension of Credit,
certifying (A) as to a true and correct copy of the charter or similar
Constitutive Documents of such Person and each amendment thereto on
file in such Secretary's office and (B) that (1) such amendments are
the only amendments to such Person's charter or Constitutive Documents
on file in such Secretary's office, (2) such Person has paid all
franchise taxes to the date of such certificate and (C) such Person is
duly formed and in good standing or presently subsisting under the
laws of the State of the jurisdiction of its organization.
(vi) A copy of a certificate of the Secretary of State of each
jurisdiction in which any Loan Party or any general partner or
managing member, as applicable, of each Loan Party is required to be
qualified to do business, dated reasonably near the date of the
Initial Extension of Credit, stating that such Person is duly
qualified and in good standing as a foreign corporation, limited
partnership or limited liability company, as applicable, in such State
and has filed all annual reports required to be filed to the date of
such certificate.
(vii) A certificate of each Loan Party or on its behalf by its
managing general partner or managing member, as applicable, of each
Loan Party, signed on behalf of such Person by its President or a Vice
President and its Secretary or any Assistant Secretary (or persons
performing similar functions), dated the date of the Initial Extension
of Credit (the statements made in which certificate shall be true on
and as of the date of the Initial Extension of Credit), certifying as
to
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(A) the absence of any amendments to the Constitutive Documents of
such Person since the date of the Secretary of State's certificate
referred to in Section 3.01(a)(v), (B) a true and correct copy of the
bylaws (or similar Constitutive Documents) as in effect on the date on
which the resolutions referred to in Section 3.01(a)(iv) were adopted
and on the date of the Initial Extension of Credit, (C) the due
organization or formation and good standing or valid existence of such
Person as a corporation, a limited liability company or a limited
partnership, as the case may be, organized or formed under the laws of
the jurisdiction of its organization or formation, and the absence of
any proceeding for the dissolution or liquidation of such Person, (D)
the truth of the representations and warranties contained in the Loan
Documents as though made on and as of the date of the Initial
Extension of Credit and (E) the absence of any event occurring and
continuing, or resulting from the Initial Extension of Credit, that
constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party or on its behalf by its managing general partner or
managing member, as applicable certifying the names and true
signatures of the officers or managers, as applicable, of such Person
authorized to sign on its behalf each Transaction Document to which it
is or is to be a party and the other documents to be delivered
hereunder and thereunder.
(ix) Certified copies of each of the Related Documents, duly
executed by or on behalf of the parties thereto and in form and
substance satisfactory to the Lender Parties, together with all
agreements, instruments and other documents delivered in connection
therewith as the Paying Agent shall request.
(x) An assumption agreement in substantially the form of Exhibit
H hereto (the "ASSUMPTION AGREEMENT"), duly executed by AROP.
(xi) A certificate, substantially in the form of Exhibit F hereto
(the "SOLVENCY CERTIFICATE"), attesting to the Solvency of the Loan
Parties before and after giving effect to the Transaction, from the
Chief Financial Officer (or person performing similar functions) of
the Company.
(xii) An environmental assessment report previously delivered to
the Co-Administrative Agents prior to the Effective Date, as to any
hazards, costs or liabilities under Environmental Laws to which any
Loan Party or any of its Subsidiaries may be subject, the amount and
nature of which and the Borrower's plans with respect to which shall
be acceptable to the Lender Parties, together with evidence, in form
and substance satisfactory to the Lender Parties, that all
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applicable Environmental Laws shall have been complied with. To the
extent that either such report or any other information that may
become available to the Lender Parties shall disclose any hazards,
costs or liabilities under Environmental Laws or otherwise that the
Lender Parties deem material, the Lender Parties shall be satisfied
that such hazards, costs or liabilities were adequately reflected in
the Borrower's financial reserves shown on the financial statements
included in the Information Memorandum or that, to the extent not so
reflected, the Borrower has made adequate provision for such hazards,
costs or liabilities.
(xiii) A reasonableness review from ▇▇▇▇ International Mining
Consultants with respect to the mine development plans that were
delivered to the Paying Agent prior to the date hereof in form and
substance satisfactory to the Lenders, including, without limitation,
minimum coal reserves, verification of operating and productivity
assumptions, the ▇▇▇▇▇▇ County Project, Capital Expenditures,
reclamation and closing costs and revenue projections.
(xiv) A five year Business Plan in form and scope satisfactory to
the Lenders.
(xv) A Notice of Borrowing relating to the Initial Extension of
Credit.
(xvi) Favorable opinions of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., special
counsel for the Loan Parties, (ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for
the Loan Parties, (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President-Law
and Administration and General Counsel of Alliance Resource Holdings,
Inc., and (iv) local counsel with respect to the laws of Illinois,
Indiana, Kentucky, Maryland and West Virginia, in each case, in form
satisfactory to the Co-Administrative Agents.
(xvii) A favorable opinion of Shearman & Sterling, counsel for
the Agents, in form and substance satisfactory to the Agents.
(xviii) An intercreditor agreement in substantially the form of
Exhibit I hereto (as amended, the "INTERCREDITOR AGREEMENT"), duly
executed by the Paying Agent, the noteholders under the Note Purchase
Agreement, the Subsidiary Guarantors and the Company.
(b) The Lenders shall be satisfied with the partnership or limited
liability company structure and capitalization of each Loan Party,
including, without limitation, the terms and conditions of the Constitutive
Documents and each class of Equity Interest in such Loan Party and each
other agreement or instrument relating to such partnership
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structure, legal structure, and capitalization, and the tax status of the
Borrower as being treated as a partnership for tax purposes.
(c) The Lender Parties shall be satisfied that all Existing Debt,
other than Surviving Debt, has been prepaid, redeemed or defeased in full
or otherwise satisfied and extinguished and that all Surviving Debt shall
be on terms and conditions satisfactory to the Lender Parties.
(d) Before giving effect to the Transaction, there shall have occurred
no Material Adverse Change since December 31, 1998.
(e) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or,
to the best knowledge of the Borrower, threatened before any court,
governmental agency or arbitrator that (i) would be reasonably likely to
have a Material Adverse Effect other than the matters satisfactory to the
Paying Agent and described on Schedule 4.01(f) hereto (the "DISCLOSED
LITIGATION") or (ii) purports to affect the legality, validity or
enforceability of any Transaction Document or the consummation of the
Transaction, and there shall have been no adverse change in the status, or
financial effect on any Loan Party or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals necessary
in connection with the Transaction shall have been obtained or shall be in
the process of being obtained so long as it is not anticipated that such
consents and approvals may not be obtained (in each case without the
imposition of any conditions that are not acceptable to the Lender Parties)
and those obtained shall be in effect (other than those the failure to
obtain which would individually or collectively be reasonably likely not to
have a Material Adverse Effect); and no law or regulation shall be
applicable in the judgment of the Lender Parties, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Transaction or the rights of the Loan Parties or their Subsidiaries freely
to transfer or otherwise dispose of, or to create any Lien on, any
Collateral.
(g) The Agents shall have completed a due diligence investigation of
each Loan Party and its Subsidiaries in scope, and with results,
satisfactory to the Lender Parties.
(h) The Borrower shall have paid all accrued fees of the Agents, the
Joint Arrangers and the Lender Parties and all reasonable expenses of the
Agents (including the reasonable fees and expenses of Shearman & Sterling,
counsel to the Agents) to the extent such fees and expenses have been
invoiced at least 24 hours prior to the date hereof or are specifically set
forth in the Fee Letter.
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(i) The Borrower shall have received at least (i) $180,000,000 in
gross proceeds from the sale of the Senior Notes and (ii) $110,000,000 in
Net Cash Proceeds from the sale of the MLP Units.
(j) The MLP Units and the Senior Notes shall have been issued in
accordance with the Transaction Documents.
(k) The Senior Notes shall have received long-term senior unsecured
non-credit enhanced debt ratings of at least BBB- from both Duff & ▇▇▇▇▇▇
Credit Rating Co. and Fitch IBCA, Inc and such rating shall remain in
effect at the time of closing.
(l) The Borrower's and its Subsidiaries' employee benefit plans shall
be, in all material respects, funded in accordance with the minimum
statutory requirements, (ii) no "reportable event" (as defined in ERISA,
but excluding events for which reporting has been waived) shall have
occurred and be continuing as to any such employee benefit plan, and (iii)
no termination of, or withdrawal from, any such employee benefit plan shall
have occurred and be continuing or be contemplated.
(m) The Company and AROP shall have completed each of the transactions
described in the Contribution Agreement (the "CONTRIBUTION TRANSACTIONS")
and no provision of the Contribution Agreement relating to the Contribution
Transactions shall have been waived, modified or supplemented without the
consent of the Co-Administrative Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation
of each Appropriate Lender to make an Advance (other than a Swing Line Advance
made by a Revolving Credit Lender pursuant to Section 2.02(b)) on the occasion
of each Borrowing (including the initial Borrowing) and the obligation of the
Swing Line Bank to make a Swing Line Advance on the occasion of each Swing Line
Borrowing, shall be subject to the further conditions precedent that on the date
of such Borrowing (a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing or Notice of Swing Line Borrowing
and the acceptance by the Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by the Borrower that both on the date
of such notice and on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in each Loan Document
are correct in all material respects on and as of such date, before and
after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, other than any
such representations or warranties that, by their terms, refer to an
earlier date, in which case as of such earlier date; and
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(ii) no Default has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom; and (b)
the Paying Agent shall have received such other approvals, opinions or
documents as any Appropriate Lender Party through the Paying Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Paying Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender Party prior to the
Initial Extension of Credit specifying its objection thereto and, if the Initial
Extension of Credit consists of a Borrowing, such Lender Party shall not have
made available to the Paying Agent such Lender Party's ratable portion of such
Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each general
partner or managing member of each Loan Party and each of its Subsidiaries (i)
is a corporation, limited partnership or limited liability company, as the case
may be, duly organized or formed, validly existing and in good standing or
validly subsisting under the laws of the jurisdiction of its organization or
formation, (ii) is duly qualified and in good standing as a foreign corporation,
limited partnership or limited liability company in each other jurisdiction in
which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed and (iii) has all requisite corporate,
limited liability company or partnership power and authority (including, without
limitation, all material governmental licenses, permits and other approvals
other than such licenses, permits and other approvals that are being obtained in
the ordinary course of business) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted. All
of the outstanding Capital Stock in the Company and AROP has been validly
issued, will be fully paid (to the extent required under the Partnership
Agreement or the Company's operating agreement) and non-assessable (except as
such non-assessability may be affected by section 17-607 of the Delaware Revised
Uniform Limited Partnership Act, in the case of AROP, or by section 18-607 of
the Delaware Limited Liability Company Act, in the case of a limited liability
company) on the Effective Date and are
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owned by the Persons in the amounts specified on the applicable portion of
Schedule 4.01(a) hereto free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date hereof (as
to each such Subsidiary) the status of each Subsidiary as a Restricted
Subsidiary or Unrestricted Subsidiary, the jurisdiction of its organization, the
number of shares of each class of its Capital Stock authorized, and the number
outstanding, on the date hereof and the percentage of each such class of its
Capital Stock owned (directly or indirectly) by such Loan Party and the number
of shares covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the outstanding Capital
Stock in each Loan Party's Subsidiaries has been validly issued, will be fully
paid (to the extent required under the Partnership Agreement or by such
Subsidiary's operating agreement, in the case of a limited liability company)
and non-assessable (except as such non-assessability may be affected by section
17-607 of the Delaware Revised Uniform Limited Partnership Act, in the case of
AROP, or by section 18-607 of the Delaware Limited Liability Company Act, in the
case of a limited liability company) on the Effective Date and are owned by such
Loan Party and/or one or more of its Subsidiaries free and clear of all Liens.
(c) The execution, delivery and performance by each Loan Party of each
Transaction Document to which it is or is to be a party, and the consummation of
the Transaction, are within such Loan Party's or such Loan Party's general
partner's or managing member's corporate, partnership or limited liability
company powers, have been duly authorized by all necessary action by or on
behalf of such Loan Party (including, without limitation, all necessary partner,
managing member or other similar action), and do not (i) contravene such Loan
Party's or such Loan Party's general partner's or managing member's Constitutive
Documents, (ii) violate any law, rule, regulation (including, without
limitation, Regulations U and X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting any
Loan Party, any of its Subsidiaries or any of their properties or (iv) except
for the Liens created under the Loan Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the properties
of any Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which would be reasonably likely to have
a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required for (i) the
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due execution, delivery, recordation, filing or performance by or on behalf of
any Loan Party or any general partner or managing member of any Loan Party of
any Transaction Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by any Loan Party of the Liens
granted by it pursuant to the Pledge Agreement, (iii) except as required to
comply with the requirements of Articles 8 and 9 of the New York Uniform
Commercial Code, the perfection or maintenance of the Liens created under the
Pledge Agreement (including the first priority nature thereof) or (iv) the
exercise by any Agent or any Lender Party of its rights under the Loan Documents
or the remedies in respect of the Collateral pursuant to the Pledge Agreement,
except for the authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or
made, or are in the process of being obtained and it is not anticipated that
such consents and approvals may not be obtained (in each case without the
imposition of any conditions that are not acceptable to the Lender Parties) and
those obtained are in full force and effect (other than those the failure to
obtain which would not individually or collectively be reasonably likely to have
a Material Adverse Effect).
(e) This Agreement has been, and each other Transaction Document when
delivered hereunder will have been, duly executed and delivered by each Loan
Party party thereto. This Agreement is, and each other Transaction Document when
delivered hereunder will be, the legal, valid and binding obligation of each
Loan Party party thereto, enforceable against such Loan Party in accordance with
its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any Environmental
Action, pending or to the best knowledge of the Borrower, threatened before any
court, governmental agency or arbitrator that (i) would be reasonably expected
to be adversely determined, and if so determined would be reasonably expected to
have a Material Adverse Effect except as set forth on Schedule 4.01(f) hereto,
or (ii) purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction, and there has been
no material adverse change in the status, or financial effect on any Loan Party
or any of its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 4.01(f) hereto.
(g) The Consolidated balance sheet of Alliance Resource Group as at
December 31, 1998, and the related Consolidated statement of income and
Consolidated statement of cash flows of Alliance Resource Group for the fiscal
year then ended, accompanied by an unqualified opinion of Deloitte & Touche LLP,
independent public accountants, and the Consolidated balance sheet of Alliance
Resource Group as at March 31, 1999, and the related Consolidated statement of
income and Consolidated statement of cash flows of Alliance Resource Group for
the three months then ended, duly certified by the Chief Financial Officer (or
person performing similar functions) of the Company, copies of which have been
furnished to each Lender Party, fairly present, subject, in the case of said
balance sheet as at March 31, 1999,
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and said statements of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of Alliance
Resource Group as at such dates and the Consolidated results of operations of
Alliance Resource Group for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent basis, and
since December 31, 1998, there has been no Material Adverse Change.
(h) The Consolidated pro forma balance sheet of the MLP and its
Subsidiaries as at March 31, 1999, and the related Consolidated pro forma
statement of income and cash flows of the MLP and its Subsidiaries for the three
months then ended, certified by the Chief Financial Officer (or person
performing similar functions) of the Company, copies of which have been
furnished to each Lender Party, fairly present the Consolidated pro forma
financial condition of the MLP and its Subsidiaries as at such date and the
Consolidated pro forma results of operations of the MLP and its Subsidiaries for
the period ended on such date, in each case giving effect to the Transaction,
all in accordance with GAAP.
(i) The Consolidated and consolidating forecasted balance sheets,
statements of income and statements of cash flows of the Borrower and its
Subsidiaries delivered to the Lender Parties in the Information Memorandum prior
to the Effective Date and pursuant to Section 5.03 were prepared in good faith
on the basis of the assumptions stated therein, which assumptions were fair in
light of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower's best estimate of its future
financial performance.
(j) Neither the Information Memorandum nor any other written
information, exhibit or report furnished by or on behalf of any Loan Party to
any Agent or any Lender Party in connection with the negotiation and syndication
of the Loan Documents or pursuant to the terms of the Loan Documents contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading in light of the
circumstances under which the same were made.
(k) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of any
Advance will be used to purchase or carry any Margin Stock or to extend credit
to others for the purpose of purchasing or carrying any Margin Stock.
(l) Neither the Borrower nor any of its Subsidiaries is an "investment
company", or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended. Neither any Loan Party nor any of its
Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility
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Holding Company Act of 1935, as amended. Neither the making of any Advances, nor
the application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other transactions contemplated by the Transaction
Documents, will violate any provision of any such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(m) Neither the Borrower nor any of its Subsidiaries is a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that would be
reasonably likely to have a Material Adverse Effect.
(n) All actions necessary or desirable to perfect and protect the
security interest in the Collateral created under the Pledge Agreement have been
duly made or taken and are in full force and effect, and the Pledge Agreement
creates in favor of the Paying Agent for the benefit of the Secured Parties a
valid and, together with such filings and other actions, perfected first
priority security interest in the Collateral, securing the payment of the
Secured Obligations, and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken. The Loan
Parties are the legal and beneficial owners of the Collateral free and clear of
any Lien, except for the Liens created under the Pledge Agreement.
(o) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(p) (i) Set forth on Schedule 4.01(p) hereto is a complete and
accurate list of all Plans and Multiemployer Plans.
(ii) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan which could reasonably be expected to result in a
Material Adverse Effect.
(iii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed with
the Internal Revenue Service and furnished to the Paying Agent, is complete and
accurate and fairly presents the funding status of such Plan, and since the date
of such Schedule B there has been no change in such funding status which could
reasonably be expected to result in a Material Adverse Effect.
(iv) Neither any Loan Party nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan
which could reasonably be expected to result in a Material Adverse Effect.
(v) Neither any Loan Party nor any ERISA Affiliate has been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and no such Multiemployer Plan is
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reasonably expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA which could reasonably be expected to result in a
Material Adverse Effect.
(q) (i) Except as set forth on Part I of Schedule 4.01(q) hereto, the
operations and properties of each Loan Party and each of its Subsidiaries comply
in all material respects with all applicable Environmental Laws and
Environmental Permits, all past non-compliance with such Environmental Laws and
Environmental Permits has been resolved without ongoing obligations or costs,
and no circumstances exist that would be reasonably likely to (A) form the basis
of an Environmental Action against any Loan Party or any of its Subsidiaries or
any of their properties that could have a Material Adverse Effect or (B) cause
any such property to be subject to any restrictions on ownership, occupancy, use
or transferability under any Environmental Law.
(ii) Except as set forth on Part II of Schedule 4.01(q) hereto, none
of the properties currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous foreign, state or local list or is adjacent to any such
property; there are no and never have been any underground or aboveground
storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons
in which Hazardous Materials are being or have been treated, stored or disposed
on any property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property formerly owned or
operated by any Loan Party or any of its Subsidiaries; there is no asbestos or
asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its Subsidiaries; and Hazardous Materials have not been
released, discharged or disposed of on any property currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries.
(iii) Except as set forth on Part III of Schedule 4.01(q) hereto,
neither any Loan Party nor any of its Subsidiaries is undertaking, and has not
completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action relating
to any actual or threatened release, discharge or disposal of Hazardous
Materials at any site, location or operation, either voluntarily or pursuant to
the order of any governmental or regulatory authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used, treated, handled
or stored at, or transported to or from, any property currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries have been
disposed of in a manner not reasonably expected to result in material liability
to any Loan Party or any of its Subsidiaries.
(r) (i) Each Loan Party and each of its Subsidiaries and Affiliates
has filed, has caused to be filed or has been included in all tax returns
(Federal, state, local and foreign) required to be filed and has paid all taxes
shown thereon to be due, together with applicable interest and penalties.
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(ii) Set forth on Schedule 4.01(r) hereto is a complete and accurate
list, as of the date hereof, of each taxable year of each Loan Party and each of
its Subsidiaries and Affiliates for which Federal income tax returns have been
filed and for which the expiration of the applicable statute of limitations for
assessment or collection has not occurred by reason of extension or otherwise
(an "OPEN YEAR").
(iii) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and each of
its Subsidiaries and Affiliates proposed by the Internal Revenue Service with
respect to Open Years does not exceed $0. No issues have been raised by the
Internal Revenue Service in respect of Open Years that, in the aggregate, would
be reasonably likely to have a Material Adverse Effect.
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan Party and
its Subsidiaries and Affiliates proposed by all state, local and foreign taxing
authorities (other than amounts arising from adjustments to Federal income tax
returns) does not exceed $0. No issues have been raised by such taxing
authorities that, in the aggregate, would be reasonably likely to have a
Material Adverse Effect.
(v) Each of AROP and MLP will be treated as a partnership for Federal
income tax purposes.
(s) Neither the business nor the properties of the Borrower or any of
its Subsidiaries are affected by any fire, explosion, accident, strike, lockout
or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or
of the public enemy or other casualty (whether or not covered by insurance) that
would be reasonably likely to have a Material Adverse Effect.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list of all Existing Debt (other than Surviving Debt), showing as of the date
hereof the obligor and the principal amount outstanding thereunder.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and the
principal amount outstanding thereunder, the maturity date thereof and the
amortization schedule (if any) therefor.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all Liens on the property or assets of the Borrower or any of its
Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or assets
of the Borrower or such Subsidiary subject thereto.
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(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all Investments held by the Borrower or any of its Subsidiaries on the
date hereof, showing as of the date hereof the amount, obligor or issuer and
maturity, if any, thereof.
(x) The Borrower has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations that
could be adversely affected by the risk that computer applications used by the
Borrower or any of its Subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999 (the "YEAR 2000 PROBLEM"), (ii) distributed a
questionnaire to each of its suppliers, vendors and customers requesting such
party s plans and timetable for addressing the Year 2000 Problem, (iii)
developed a plan and timetable for addressing the Year 2000 Problem on a timely
basis and no later than November 31, 1999 will have completed such plan, and
(iv) to date, implemented that plan in accordance with such timetable. Based on
the foregoing, the Borrower believes that all computer applications that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 ("YEAR
2000 COMPLIANT"), except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(y) (i) The Borrower and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, for which the failure so to do,
individually or in the aggregate, would reasonably be likely to have a Material
Adverse Effect, without known conflict with the rights of others, (ii) to the
best knowledge of the Borrower, no product or practice of the Borrower or any of
its Subsidiaries infringes in any material respect on any license, permit,
franchise, authorization, patent, copyright, service ▇▇▇▇, trademark, trade name
or other right owned by any other Person, and (iii) to the best knowledge of the
Borrower, there is no material violation by any Person of any right of the
Borrower of any of its Subsidiaries with respect to any patent, copyright,
service ▇▇▇▇, trademark, trade name or other right owned or used by the Borrower
or any of its Subsidiaries.
(z) To the best knowledge of the Borrower, the Borrower and its
Subsidiaries maintain adequate reserves for future costs associated with any
lung disease claim alleging pneumoconiosis or silicosis or arising out of
exposure or alleged exposure to coal dust or the coal mining environment, and
such reserves are not less than those required by GAAP.
(aa) The Borrower s obligations under this Agreement and the Notes and
each Subsidiary Guarantor s obligations under the Subsidiary Guaranty, will,
upon (a) the execution and delivery of the Notes and the execution and delivery
of such Subsidiary Guaranty, respectively, and (b) the effectiveness of the
Assumption Agreement, rank pari passu, without preference or priority, with all
of the other outstanding unsecured and unsubordinated Debt of the
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Borrower or of such Subsidiary Guarantor, as the case may be (disregarding for
this purpose the Collateral for the Term Advances pledged pursuant to the Pledge
Agreement).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants . So long as any Advance or any
other monetary obligation of any Loan Party under any Loan Document shall remain
unpaid or any Lender Party shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA, except to the extent failure so to
comply, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property, except to the extent failure to so
pay or discharge, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being contested
in good faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any Lien resulting
therefrom attaches to its property and becomes enforceable against its
other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all material Environmental
Permits necessary for its operations and properties; and conduct, and cause
each of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance in all material respects, with the requirements
of all Environmental Laws; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its
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obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to
such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or such
Subsidiary operates, except to the extent failure to maintain such
insurance, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(e) Preservation of Partnership or Limited Liability Company
Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries
to preserve and maintain, its existence, legal structure, legal name (in
the case of the Borrower), rights (charter and statutory), permits,
licenses, approvals, privileges, franchises and intellectual property;
provided, however, that the Borrower and its Subsidiaries may consummate
any merger or consolidation permitted under Section 5.02(d) and; provided
further that neither the Borrower nor any of its Subsidiaries shall be
required to preserve any right, permit, license, approval, privilege,
franchise or intellectual property if the Board of Directors (or persons
performing similar functions) of or on behalf of the Borrower or such
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof, individually or
in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(f) Visitation Rights. At any reasonable time and from time to time
upon reasonable notice, permit any of the Agents or any of the Lender
Parties, or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and visit
the properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear
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excepted, except to the extent the failure to so maintain or preserve such
properties, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(i) Covenant to Guarantee Obligations. Upon the formation or
acquisition by the Borrower of any new direct or indirect Restricted
Subsidiary that is a Domestic Subsidiary, the Borrower shall, in each case
at the Borrower's expense (i) within 10 days after such formation or
acquisition, cause each such Restricted Subsidiary, and cause each direct
and indirect parent of such Restricted Subsidiary (if it has not already
done so), to duly execute and deliver to the Paying Agent a guaranty or
guaranty supplement, in form and substance satisfactory to the Paying
Agent, guaranteeing the other Loan Parties' obligations under the Loan
Documents and (ii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all such
other action as the Paying Agent may deem necessary or desirable in
obtaining the full benefits of such guaranties.
(j) Further Assurances. (i) Promptly upon request by the Paying Agent,
or any Lender Party through the Paying Agent, correct, and cause each of
its Subsidiaries promptly to 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) Promptly upon request by the Paying Agent, or any Lender Party
through the Paying Agent, take such action as the Paying Agent, or any
Lender Party through the Paying Agent, may reasonably require from time to
time in order to (A) carry out more effectively the purposes of the Loan
Documents, and (B) perfect and maintain the validity, effectiveness and
priority of the Pledge Agreement and any of the Liens intended to be
created thereunder, and cause each of its Subsidiaries to do so.
(k) Performance of Related Documents. Perform and observe, and cause
each of its Subsidiaries to perform and observe, all of the terms and
provisions of each Related Document to be performed or observed by it,
maintain each such Related Document in full force and effect, enforce such
Related Document in accordance with its terms, take all such action to such
end as may be from time to time requested by the Paying Agent and, upon
request of the Paying Agent, make to each other party to each such Related
Document such demands and requests for information and reports or for
action as any Loan Party or any of its Subsidiaries is entitled to make
under such Related Document, except, in any case, where the failure to do
so, either individually or in the aggregate, would not be reasonably likely
to have a Material Adverse Effect.
(l) Preparation of Environmental Reports. At the request of the Paying
Agent from time to time and upon the occurrence and during the continuance
of an Event of
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Default, provide to the Lender Parties within 60 days after such request,
at the expense of the Borrower, an environmental site assessment report for
any of its or its Subsidiaries' properties described in such request,
prepared by an environmental consulting firm acceptable to the Paying
Agent, indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in connection
with any Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Paying Agent determines at any time
that a material risk exists that any such report will not be provided
within the time referred to above, the Paying Agent may retain an
environmental consulting firm to prepare such report at the expense of the
Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary
that owns any property described in such request to grant at the time of
such request to the Paying Agent, the Lender Parties, such firm and any
agents or representatives thereof an irrevocable non-exclusive license,
subject to the rights of tenants, to enter onto their respective properties
to undertake such an assessment.
(m) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property
to which the Borrower or any of its Restricted Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited
or canceled, notify the Paying Agent of any default by any party with
respect to such leases and cooperate with the Paying Agent in all respects
to cure any such default, and cause each of its Subsidiaries to do so,
except, in any case, where the failure to do so, either individually or in
the aggregate, would not be reasonably likely to have a Material Adverse
Effect.
(n) Maintenance of Controlled Reserve Base. Maintain a controlled
reserve base of sufficient mineable tonnage of coal such that the ratio of
aggregate controlled mineable tons of coal over current annual production
levels of tons of coal per year is greater than 125% of the remaining
duration of the Senior Notes issued pursuant to the Note Purchase
Agreement. For purposes of this Section 5.01(n), a "controlled reserve
base" of coal denotes the aggregate of coal reserves which may be
economically and legally mined by the Borrower or a Restricted Subsidiary
at the time of the reserve determination. In making any determination of
reserves for the purpose of this Section 5.01(n), the Borrower may include
properties ("OPTION PROPERTIES") which may be acquired by the Borrower or a
Restricted Subsidiary under a valid and enforceable option or purchase
contract which is subject to no conditions other than the payment of the
purchase price provided for under such option or contract (the "CONTRACT
PRICE"); provided that to the extent and for so long as the Borrower shall
elect to include Option Properties in any such determination, (x) the
amount equal to the Contract Price could then be incurred as Debt under the
provisions of Section 10.1(a) of the Note Purchase Agreement (the "Notional
Debt") and (y) assuming for all purposes of Sections 10.1(a)
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and 10.4(a)(ii) of the Note Purchase Agreement that an amount equal to all
such Notional Debt was considered to be outstanding.
SECTION 5.02. Negative Covenants . So long as any Advance or any other
monetary obligation of any Loan Party under any Loan Document shall remain
unpaid or any Lender Party shall have any Commitment hereunder, the Borrower
will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit any of
its Restricted Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement that
names the Borrower or any of its Restricted Subsidiaries as debtor, or sign
or suffer to exist, or permit any of its Restricted Subsidiaries to sign or
suffer to exist, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any of
its Restricted Subsidiaries to assign, any accounts or other right to
receive income, except:
(i) Liens created under the Loan Documents including Liens on the
Qualifying Securities;
(ii) Permitted Liens;
(iii) other Liens incurred in the ordinary course of business
securing obligations in an amount not to exceed $10,000,000;
(iv) Liens existing on the date hereof and described on Schedule
4.01(v) hereto;
(v) non-recourse Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Restricted Subsidiaries
in the ordinary course of business to secure the purchase price of
such property or equipment or to secure non-recourse, tax-exempt Debt
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment to be
subject to such Liens, or Liens existing on any such property or
equipment at the time of acquisition (other than any such Liens
created in contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved, and no
such
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extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed
or replaced;
(vi) Liens arising in connection with Capital Leases permitted
under Section 5.02(b)(iii)(G); provided that no such Lien shall extend
to or cover any Collateral or assets other than the assets subject to
such Capital Leases;
(vii) the replacement, extension or renewal of any Lien permitted
by clauses (iii) through (vi) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent
obligor) of the Debt secured thereby;
(viii) Liens on personal property leased under leases (including
synthetic leases) entered into by the Borrower which are accounted for
as operating leases in accordance with GAAP to the extent not
prohibited under Section 5.02(h);
(ix) easements, exceptions or reservations in any property of the
Borrower or any Restricted Subsidiary granted or reserved for the
purpose of pipelines, roads, the removal of oil, gas, coal 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 business
of the Borrower or any of its Restricted Subsidiaries;
(x) Liens on documents of title and the property covered thereby
securing obligations in respect of letters of credit that are
commercial letters of credit (i.e., obtained for the purpose of paying
all or a portion of the purchase price of such property) to the extent
not prohibited under Section 5.02(b); and
(xi) Liens on property or assets of the Borrower or any of its
Restricted Subsidiaries securing Debt owing to the Borrower or to a
Wholly Owned Restricted Subsidiary in an aggregate principal amount
not to exceed $10,000,000; provided that no promissory note evidencing
such intercompany Debt shall be pledged to any other Person as
security for any Debt or any other obligation of the Borrower or such
Restricted Subsidiary.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Restricted Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) in the case of the Borrower, Debt owed to a Wholly Owned
Restricted Subsidiary of the Borrower, and
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(ii) in the case of any Restricted Subsidiary of the Borrower,
Debt owed to the Borrower or to a Wholly Owned Restricted Subsidiary
of the Borrower; and
(iii) in the case of the Borrower and its Restricted
Subsidiaries,
(A) Debt under the Loan Documents,
(B) the Surviving Debt,
(C) Debt under the Note Purchase Agreement evidenced by the
Senior Notes in a principal amount not to exceed $180,000,000
plus, to the extent not otherwise utilized pursuant to clause (H)
of this Section 5.02(b)(iii), an additional $10,000,000,
(D) non-recourse Debt of the Borrower and Restricted
Subsidiaries incurred solely to finance Capital Expenditures for
the development of Greenfield Projects,
(E) non-recourse Debt secured by Liens permitted by Section
5.02(a)(v),
(F) Debt in respect of Swaps incurred in the ordinary course
of business and consistent with prudent business practice with
the aggregate value thereof not to exceed $10,000,000 at any time
outstanding, and
(G) any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, any Surviving Debt or other
Debt permitted under this Section 5.02(b), provided that the
principal amount of such Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as a result of
or in connection with such extension, refunding or refinancing,
provided further that the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if
any), and other material terms taken as a whole, of any such
extending, refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in connection
therewith, are consistent with prudent business practice and
incurred in the ordinary course of business and, in the case of
the Senior Notes, are on terms no less favorable in any material
respect to the Loan
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Parties or the Lender Parties than the terms of the Senior Notes
being extended, refunded or refinanced.
(H) other unsecured Debt incurred in the ordinary course of
business and Capital Lease Obligations aggregating not more than
$10,000,000 at any time outstanding other than Contingent
Obligations of the Borrower or any Restricted Subsidiary with
respect to any Debt or other obligation of any Unrestricted
Subsidiary; provided, in each case, that the Borrower shall be in
pro forma compliance with the covenants contained in Section
5.04, calculated based on the financial statements most recently
delivered to the Lender Parties pursuant to Section 5.03 and as
though such Debt or Capital Lease Obligations had been incurred
at the beginning of the four-quarter period covered thereby, as
evidenced by a certificate of the Chief Financial Officer (or
person performing similar functions) of the Borrower delivered to
the Paying Agent demonstrating such compliance.
(c) Change in Nature of Business. Make, or permit any of its
Restricted Subsidiaries to make, any material change in the nature of their
businesses, taken as a whole, as carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it or convey, transfer or lease substantially all
of its assets in a single transaction or series of transactions to any
Person, or permit any of its Restricted Subsidiaries to do so, except that:
(i) any Restricted Subsidiary of the Borrower may merge into or
consolidate with any other Wholly Owned Restricted Subsidiary of the
Borrower, provided that, in the case of any such merger or
consolidation, the Person formed by such merger or consolidation shall
be a Wholly Owned Restricted Subsidiary of the Borrower, provided
further that, in the case of any such merger or consolidation to which
a Subsidiary Guarantor is a party, the Person formed by such merger or
consolidation shall be a Subsidiary Guarantor;
(ii) any of the Borrower's Subsidiaries may consolidate with or
merge into the Borrower, provided that the Borrower is the surviving
entity; and
(iii) any of the Restricted Subsidiaries of the Borrower may (A)
merge into or consolidate with, or (B) convey, transfer or lease
substantially all of its assets in compliance with Section 5.02(e)
(other than clause (iv) thereof) in a single transaction or series of
transactions to, any other Person or (C) permit any
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other Person to merge into or consolidate with it; provided, in the
case of any merger or consolidation or conveyance, transfer or lease
of substantially all of its assets, (1) the Person formed by such
consolidation or into which the Restricted Subsidiary shall be merged
or assets shall be conveyed, transferred or leased shall, at the
effective time of such merger or consolidation or transfer or lease be
Solvent and shall have assumed all obligations of such Restricted
Subsidiary under any Subsidiary Guaranty to which such Restricted
Subsidiary is a party in a writing satisfactory in form and substance
to the Required Lenders and (2) the Borrower shall have caused to be
delivered to the Paying Agent an opinion of independent counsel
satisfactory to the Paying Agent to the effect that all agreements or
instruments effecting such assumption are enforceable in accordance
with the terms thereof;
provided, however, that in each case, immediately after giving effect
thereto, (i) no event shall occur and be continuing that constitutes a
Default and (ii) the Borrower shall be in pro forma compliance with the
covenants contained in Section 5.04, as evidenced by a certificate of the
Chief Financial Officer (or persons performing similar functions) of the
Borrower delivered to the Paying Agent demonstrating such compliance.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Restricted Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets other than Inventory to be
sold in the ordinary course of its business, except:
(i) sales of Inventory in the ordinary course of its business;
(ii) sales of assets that are obsolete or no longer used or
useful for fair value in an aggregate amount not to exceed $5,000,000
over the term of the Facilities;
(iii) sales of assets (x) by the Borrower to a Wholly Owned
Restricted Subsidiary, or (y) by a Restricted Subsidiary to the
Borrower or to another Restricted Subsidiary with respect to which the
Borrower shall have at least the same degree of ownership and control
as it had with respect to the Restricted Subsidiary responsible for
the asset sale, transfer or disposition;
(iv) in a transaction authorized by Section 5.02(d); and
(v) sales of other assets with a fair value in an amount not to
exceed $10,000,000 individually or $25,000,000 in the aggregate over
the term of the Facilities; provided, however, that the purchase price
paid to the Borrower or such
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Restricted Subsidiary for such asset shall be no less than the fair
market value of such asset at the time of such sale and such sale
shall be in the best interest of the Borrower or such Restricted
Subsidiary, as determined in good faith by the Board of Directors (or
other person performing such functions) of the Borrower or such
Restricted Subsidiary, as the case may be, and (ii) immediately after
giving effect to such sales of assets, no Default or Event of Default
shall exist;
provided that in the case of sales of assets pursuant to clause (v) above,
the Borrower shall prepay the Advances pursuant to, and on the date and in
the amount and order of priority set forth in, Section 2.05(b)(i), as
specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of its
Restricted Subsidiaries to make or hold, any Investment in any Person,
except:
(i) Investments consisting of property to be used in the ordinary
course of business;
(ii) Investments in accounts receivable arising from the sales of
goods and services in the ordinary course of business;
(iii) equity Investments by the Borrower and its Restricted
Subsidiaries in Wholly Owned Restricted Subsidiaries;
(iv) Investments by the Borrower and its Restricted Subsidiaries
in Cash Equivalents;
(v) Investments existing on the date hereof and described on
Schedule 4.01(w) hereto;
(vi) Investments by the Borrower in Swaps permitted under Section
5.02(b)(iii)(F); and
(vii) other Investments in any other Person; provided that with
respect to Investments made under this clause (vii): (1) any newly
acquired or organized Subsidiary of the Borrower or any of its
Restricted Subsidiaries shall be a Restricted Subsidiary thereof; (2)
immediately before and after giving effect thereto, no Default shall
have occurred and be continuing or would result therefrom; (3) any
company or business acquired or invested in pursuant to this clause
(vii) shall be in the same line of business as the business of the
Borrower or any of its Restricted Subsidiaries; and (4) immediately
after giving effect to the acquisition of a company or business
pursuant to this clause (vii), the Borrower
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shall be in pro forma compliance with the covenants contained in
Section 5.04, calculated based on the financial statements most
recently delivered to the Lender Parties pursuant to Section 5.03 and
as though such acquisition had occurred at the beginning of the
four-quarter period covered thereby, as evidenced by a certificate of
the Chief Financial Officer (or person performing similar functions)
of the Borrower delivered to the Lender Parties demonstrating such
compliance;
(viii) Investments by the Borrower and its Restricted
Subsidiaries in Unrestricted Subsidiaries and in Restricted
Subsidiaries that are not Wholly Owned Subsidiaries in an amount not
to exceed $10,000,000 at any time outstanding; and
(ix) Investments consisting of intercompany Debt permitted under
Section 5.02(b)(i) and (ii).
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Capital
Stock now or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, make any
distribution of assets, Capital Stock, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, or permit any of its Restricted Subsidiaries to do any of the
foregoing (each of the foregoing being a "RESTRICTED PAYMENT"), or permit
any of its Restricted Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any Capital Stock in the Borrower or to issue
or sell any Capital Stock therein, except that, so long as no Default or
Event of Default shall have occurred and be continuing at the time of any
action described in clause (i) or (ii) below or would result therefrom:
(i) the Borrower may declare, make or incur a liability to make
any such Restricted Payment; provided that immediately after giving
effect thereto (i) the aggregate amount of Restricted Payments made in
any fiscal quarter of the Borrower shall not exceed Available Cash (as
defined in the MLP Agreement as in effect on the date hereof) for the
immediately preceding fiscal quarter of the Borrower, and (ii)
promptly after each such distribution, the Borrower will provide the
Lender Parties with a report in form satisfactory to the Lender
Parties setting forth the amount of the cash reserve withheld from
distribution that is necessary for the proper conduct of business
(including reserves for future capital expenditures) as set forth in
the most recent Business Plan delivered to the Paying Agent pursuant
to Section 5.03(d); and
(ii) (A) any Wholly Owned Subsidiary of the Borrower may declare,
make or incur a liability to make any Restricted Payment to the
Borrower or any
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other Wholly Owned Subsidiary of the Borrower of which it is a
Subsidiary, (B) any non-Wholly Owned Subsidiary may declare, make or
incur a liability to make any Restricted Payment to its equity
holders, provided that the general partner of such Subsidiary does not
own greater than a 2% Equity Interest in such Subsidiary, and (C) any
Subsidiary of the Borrower may accept capital contributions from its
parent to the extent permitted under Section 5.02(f)(iii).
Notwithstanding the foregoing provisions of this Section 5.02(g), the
Borrower may (i) make a one-time distribution on the Effective Date to
Alliance Resource Holdings, Inc., or such other Affiliate as the Borrower
may elect, in an amount not to exceed $320,000,000, and (ii) use pledged
Qualifying Securities to redeem interests in the Borrower so long as on the
date of such redemption, United States Governmental Securities which comply
with the definition of Qualifying Securities in a like principal amount,
which have been obtained by the Borrower as a capital contribution from an
Affiliate of the Borrower, are substituted for the Qualifying Securities so
used to redeem such interests in the Borrower.
(h) Lease Obligations. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee (excluding for this purpose
obligations as lessee under Capital Leases) (i) for the rental or hire of
real or personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of other real or personal
property of any kind under leases or agreements to lease having an original
term of one year or more that would cause the direct and contingent
liabilities of the Borrower and its Subsidiaries, on a Consolidated basis,
in respect of all such obligations to exceed $10,000,000 payable in any
period of 12 consecutive months.
(i) Amendments of Constitutive Documents. Amend, or permit any of its
Restricted Subsidiaries to amend, its Constitutive Documents (other than
the Partnership Agreement) in any manner that has a Material Adverse
Effect.
(j) Accounting Changes. Make or permit, or permit any of its
Restricted Subsidiaries to make or permit, any change in (i) accounting
policies or reporting practices, except as required by generally accepted
accounting principles, or (ii) Fiscal Year.
(k) Prepayments, Etc., of Debt. (i) Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner
the Senior Notes for so long as any Term Advances are outstanding, except
mandatory prepayments of principal, and payments of interest, required
under the Note Purchase Agreement or (ii) permit any Subsidiary Guarantor
(as defined in the Note Purchase Agreement) to
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make any payment to or on account of any noteholder under the Note Purchase
Agreement other than a payment made following a demand therefor by such
noteholder pursuant to the Subsidiary Guaranty Agreement (as defined in the
Note Purchase Agreement).
(l) Amendment, Etc., of Related Documents. Amend, modify or change in
any manner any term or provision of the Note Purchase Agreement that would
allow for any scheduled amortization payments to be made on the Senior
Notes prior to the date the Facilities are paid in full.
(m) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Restricted
Subsidiaries to do so, except that (i) the Company may be a general partner
of AROP and MLP and (ii) AROP and/or any of its Restricted Subsidiaries may
be a general partner in any partnership or joint venture provided such
partnership or such joint venture incurs no Debt or other liability for
which AROP or such Subsidiary is liable as guarantor or a provider of any
other credit support, or by virtue of its status as such general partner or
joint venturer.
(n) Speculative Transactions. Enter into any foreign currency exchange
contracts, interest rate swap arrangements or other derivative contracts or
transactions, other than such contracts, arrangements or transactions
entered into in the ordinary course of business for the purpose of hedging
(i) the interest rate exposure of the Borrower or any of its Restricted
Subsidiaries, (ii) the purchase requirements of the Borrower or any of its
Restricted Subsidiaries with respect to raw materials and inventory and
(iii) the fluctuations in the prices of commodities affecting the Borrower
or any of its Restricted Subsidiaries.
(o) Formation of Subsidiaries. Organize or invest, or permit any
Restricted Subsidiary to organize or invest, in any new Subsidiary except
as permitted under Section 5.02(f)(vii) or 5.02(f)(viii).
(p) Payment Restrictions Affecting Restricted Subsidiaries. Directly
or indirectly, enter into or suffer to exist, or permit any of its
Restricted Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its Capital Stock or
repay or prepay any Debt owed to, make loans or advances to, or otherwise
transfer assets to or invest in, the Borrower or any Subsidiary of the
Borrower (whether through a covenant restricting dividends, loans, asset
transfers or investments, a financial covenant or otherwise), except the
Loan Documents and the Note Purchase Agreement.
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(q) Transactions with Affiliates. Except as set forth on Schedule
5.01(q) hereto, enter into, or permit any of its Restricted Subsidiaries to
enter into, directly or indirectly, any transaction or group of related
transactions (including without limitation the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with
any Affiliate, except in the ordinary course and pursuant to the reasonable
requirements of the Borrower's or such Restricted Subsidiary's business and
upon fair and reasonable terms no less favorable (taken as a whole, as
determined in good faith by the board of directors of the General Partner)
to the Borrower or such Restricted Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
(r) Change in Status of Subsidiaries. Change the designation of any
Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary except,
so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may at any time and from time to time, upon not
less than 30 days' prior written notice given to each Lender Party,
designate a previously Restricted Subsidiary as an Unrestricted Subsidiary
or a previously Unrestricted Subsidiary (including a new Subsidiary
designated on the date of its formation or acquisition) which satisfies the
requirements of clauses (i), (ii) and (iii) of the definition of
"Restricted Subsidiary" as a Restricted Subsidiary, provided that
immediately after such designation and after giving effect thereto no
Default or Event of Default shall have occurred and be continuing, and the
Borrower would be permitted, pursuant to the provisions of Section 10.1(a)
of the Note Purchase Agreement to incur at least $1 of additional Debt (as
defined in the Note Purchase Agreement) owing to a Person other than a
Restricted Subsidiary, and provided further that after such designation the
status of such Subsidiary had not been changed more than twice.
SECTION 5.03. Reporting Requirements . So long as any Advance or any
other monetary obligation of any Loan Party under any Loan Document shall remain
unpaid, or any Lender Party shall have any Commitment hereunder, the Borrower
will furnish to the Paying Agent:
(a) Default Notice. As soon as possible and in any event within five
Business Days after the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the Chief
Financial Officer (or person performing similar functions) of the Borrower
setting forth details of such Default and the action that the Borrower has
taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within
120 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for the
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Borrower and its Subsidiaries, including therein a Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such Fiscal
Year and a Consolidated statement of income and a Consolidated statement of
cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in
each case accompanied by an opinion acceptable to the Required Lenders of
Deloitte & Touche LLP or other independent public accountants of recognized
standing acceptable to the Required Lenders, together with (i) a
certificate of such accounting firm to the Lender Parties stating that in
the course of the regular audit of the business of the Borrower and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in form
satisfactory to the Paying Agent of the computations used by such
accountants in determining, as of the end of such Fiscal Year, compliance
with the covenants contained in Section 5.04, provided that in the event of
any change in GAAP used in the preparation of such financial statements,
the Borrower shall also provide, if necessary for the determination of
compliance with Section 5.04, a statement of reconciliation conforming such
financial statements to GAAP and (iii) a certificate of the Chief Financial
Officer (or person performing similar functions) of the Borrower stating
that no Default has occurred and is continuing or, if a default has
occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with respect
thereto.
(c) Quarterly Financials. As soon as available and in any event within
60 days after the end of each of the first three quarters of each Fiscal
Year, a Consolidated balance sheet of the Borrower and its Subsidiaries as
of the end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal quarter and
ending with the end of such fiscal quarter and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or
period of the preceding Fiscal Year, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments) by the Chief
Financial Officer (or person performing similar functions) of the Borrower
as having been prepared in accordance with GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto and (ii) a schedule in form
satisfactory to the Paying Agent of the computations used by the Borrower
in determining compliance with the covenants contained in Section 5.04,
provided that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if necessary
for
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the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.
(d) Annual Business Plan. As soon as available and in any event no
later than 120 days after the end of each Fiscal Year, a Business Plan.
(e) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries, including any Environmental Action, that (i) would be
reasonably expected to have a Material Adverse Effect or (ii) purports to
effect the legality, validity or enforceability of any Transaction Document
or the consummation of the Transaction, and promptly after the occurrence
thereof, notice of any material adverse change in the status or the
financial effect on any Loan Party or any of its Subsidiaries of the
Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(f) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that MLP
or any Loan Party or any of its Subsidiaries sends to its stockholders,
partners or members, and copies of all regular, periodic and special
reports, and all registration statements, that MLP or any Loan Party or any
of its Subsidiaries files with the Securities and Exchange Commission or
any governmental authority that may be substituted therefor, or with any
national securities exchange.
(g) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to know that any ERISA Event has occurred, a statement of the
Chief Financial Officer (or person performing similar functions) of the
Borrower describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with respect
thereto and (B) on the date any records, documents or other information
must be furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA, a copy of such records, documents and information.
(ii) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any Plan or
to have a trustee appointed to administer any Plan.
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(iii) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred, by such Loan Party
or any ERISA Affiliate in connection with any event described in clause (A)
or (B).
(h) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any material Environmental Action against or
of any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit.
(i) Year 2000 Compliance. Promptly after the Borrower's discovery or
determination thereof, notice (in reasonable detail) that any computer
application that is material to its or any of its Subsidiaries' business
and operations will not be Year 2000 Compliant (as defined in Section
4.01(y)), except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
(j) Available Cash. Within 60 days (or in the case of the fourth
fiscal quarter, 120 days) following the end of each fiscal quarter of the
Borrower, a report of Available Cash (as defined in the MLP Agreement),
cash reserves and other related items of the Borrower and its Subsidiaries
in form and substance satisfactory to the Paying Agent to be delivered at
the same time as the compliance certificate of the Borrower delivered
pursuant to Section 5.03(b) or (c), as the case may be.
(k) Coal and Mining Agreements. Promptly after the occurrence thereof,
notice of any material change to any coal sales agreement or contract,
contract mining agreement or coal purchase agreements to which the Borrower
or any of its Subsidiaries is a party.
(l) Rating Agency Reports. Promptly upon receipt thereof, copies of
any statement or report furnished by any rating agency to any Loan Party or
any of its Subsidiaries in connection with the Senior Notes.
(m) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any
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Loan Party or any of its Subsidiaries as any Agent, or any Lender Party
through the Paying Agent, may from time to time reasonably request.
SECTION 5.04. Financial Covenants . So long as any Advance or any
other obligation of any Loan Party under any Loan Document shall remain unpaid
or any Lender Party shall have any Commitment hereunder, the Borrower will:
(a) Consolidated Net Debt to Consolidated Cash Flow Ratio. Maintain at
all times from and after October 1, 1999, a Consolidated Net Debt to
Consolidated Cash Flow Ratio of not more than the amount set forth below
for each period set forth below:
===============================================================
PERIOD RATIO
===============================================================
October 1, 1999 through December 30, 4.00:1.00
1999
---------------------------------------------------------------
December 31, 1999 through March 30, 4.00:1.00
2000
---------------------------------------------------------------
March 31, 2000 through June 29, 2000 4.00:1.00
---------------------------------------------------------------
June 30, 2000 through September 29, 4.00:1.00
2000
---------------------------------------------------------------
September 30, 2000 through December 4.00:1.00
30, 2000
---------------------------------------------------------------
December 31, 2000 through March 30, 3.75:1.00
2001
---------------------------------------------------------------
March 31, 2001 through June 29, 2001 3.75:1.00
---------------------------------------------------------------
June 30, 2001 through September 29, 3.75:1.00
2001
---------------------------------------------------------------
September 30, 2001 through December 3.75:1.00
30, 2001
---------------------------------------------------------------
December 31, 2001 through March 30, 3.50:1.00
2002
---------------------------------------------------------------
March 31, 2002 through June 29, 2002 3.50:1.00
---------------------------------------------------------------
June 30, 2002 through September 29, 3.50:1.00
2002
---------------------------------------------------------------
September 30, 2002 through December 3.50:1.00
30, 2002
---------------------------------------------------------------
December 31, 2002 through March 30, 3.50:1.00
2003
---------------------------------------------------------------
March 31, 2003 through June 29, 2003 3.50:1.00
---------------------------------------------------------------
June 30, 2003 through September 29, 3.50:1.00
2003
---------------------------------------------------------------
September 30, 2003 through 3.50:1.00
---------------------------------------------------------------
December 31, 2003 through March 30, 3.50:1.00
2004
---------------------------------------------------------------
March 31, 2004 through June 30, 2004 3.50:1.00
---------------------------------------------------------------
June 31, 2004 and thereafter 3.50:1.00
===============================================================
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(b) Maximum Asset Impairments and Incremental Long-term Liabilities.
Maintain at all times the sum of: (i) cumulative asset writedowns and
impairments plus (ii) the increase in the sum of accrued pneumoconiosis
benefits, workers compensation and reclamation and mine closing liabilities
associated with properties and assets that are owned by the Borrower and
its Restricted Subsidiaries as of the Effective Date of not more than
$35,000,000.
(c) Interest Coverage Ratio. Maintain at all times from and after
October 1, 1999, an Interest Coverage Ratio of not less than the amount set
forth below for each period set forth below:
===============================================================
PERIOD RATIO
===============================================================
October 1, 1999 through December 30, 2.75:1.00
1999
---------------------------------------------------------------
December 31, 1999 through March 30, 2.75:1.00
2000
---------------------------------------------------------------
March 31, 2000 through June 29, 2000 2.75:1.00
---------------------------------------------------------------
June 30, 2000 through September 29, 2.75:1.00
2000
---------------------------------------------------------------
September 30, 2000 through December 2.75:1.00
30, 2000
---------------------------------------------------------------
December 31, 2000 through March 30, 2.75:1.00
2001
---------------------------------------------------------------
March 31, 2001 through June 29, 2001 2.75:1.00
---------------------------------------------------------------
June 30, 2001 through September 29, 2.75:1.00
2001
---------------------------------------------------------------
September 30, 2001 through December 2.75:1.00
30, 2001
---------------------------------------------------------------
December 31, 2001 through March 30, 3.00:1.00
2002
---------------------------------------------------------------
March 31, 2002 through June 29, 2002 3.00:1.00
---------------------------------------------------------------
June 30, 2002 through September 29, 3.00:1.00
2002
---------------------------------------------------------------
September 30, 2002 through December 3.00:1.00
30, 2002
---------------------------------------------------------------
December 31, 2002 through March 30, 3.00:1.00
2003
---------------------------------------------------------------
March 31, 2003 through June 29, 2003 3.00:1.00
---------------------------------------------------------------
June 30, 2003 through September 29, 3.00:1.00
2003
---------------------------------------------------------------
September 30, 2003 through 3.00:1.00
---------------------------------------------------------------
December 31, 2003 through March 30, 3.00:1.00
2004
---------------------------------------------------------------
March 31, 2004 through June 30, 2004 3.00:1.00
---------------------------------------------------------------
June 31, 2004 and thereafter 3.00:1.00
===============================================================
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(d) Current Ratio. Maintain at all times a ratio of Consolidated
Current Assets to Consolidated Current Liabilities of the Borrower and its
Restricted Subsidiaries of at least 1.00:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail
to pay any interest on
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any Advance, or any Loan Party shall fail to make any other payment under
any Loan Document, in each case under this clause (ii) within five Business
Days after the same becomes due and payable; or
(b) any representation or warranty made in writing by any Loan Party
(or any of its officers) under or in connection with any Loan Document
(including, without limitation, in any certificate or financial information
delivered pursuant thereto) shall prove to have been incorrect in any
material respect when made or any financial projections prepared by or on
behalf of any Loan Party and made available to the Agents or any Lender
Party shall prove not to have been prepared in good faith based upon
assumptions that were reasonable at the time made and at the time made
available to the Agents; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.01(d) or (e), 5.02, 5.03(a) or 5.04; or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by any Agent or any Lender Party; or
(e) any Loan Party shall fail to pay any principal of, premium or
interest on or any other amount payable in respect of any Debt of such Loan
Party or such Subsidiary (as the case may be) that is outstanding in a
principal amount (or, in the case of any Hedge Agreement, an Agreement
Value) of at least $10,000,000 either individually or in the aggregate (but
excluding Debt outstanding hereunder), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt, if the effect of
such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared
to be due and payable or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or either general partner of the Borrower shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its
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debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan
Party or any general partner of the Borrower seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Restricted
Subsidiaries or any general partner of the Borrower shall take any
corporate action to authorize any of the actions set forth above in this
subsection (f); or
(g) any judgments or orders, either individually or in the aggregate,
for the payment of money in excess of $10,000,000 shall be rendered against
any Loan Party and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 60 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order shall
not be an Event of Default under this Section 6.01(g) if and for so long as
(i) the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering payment
thereof and (ii) such insurer, which shall be rated at least "A" by A.M.
Best Company at the time such insurance policy is issued to such Loan
Party, has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party that would reasonably be likely to have a Material Adverse
Effect, and there shall be any period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party party to it in any
material respect, or any such Loan Party shall so state in writing; or
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(j) the Pledge Agreement shall for any reason (other than pursuant to
the terms thereof) cease to constitute a valid and perfected first priority
Lien on the Collateral purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $10,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $10,000,000 or requires
payments exceeding $2,500,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $2,500,000; or
(o) the Borrower shall cancel or terminate or amend or consent to or
accept any cancellation or termination or amendment of the Partnership
Agreement or there shall be a cancellation, termination of, or any
amendment to, the MLP Agreement in any manner that has a material adverse
effect on (i) the business, operations, affairs, financial condition,
assets or properties of the Borrower and its Subsidiaries taken as a whole,
(ii) the rights and remedies of the Agents or the Lender Parties under the
Loan Documents, or (iii) the ability of the Loan Parties to perform their
respective payment and other material obligations under the Loan Documents;
or
(p) an assertion shall be made by any Person in any court proceeding
or by any governmental authority or agency against any Loan Party or any of
its Subsidiaries, of any claims or liabilities, whether accrued, absolute
or contingent, based on or arising under
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any Environmental Law that is reasonably likely to be determined adversely
to such Loan Party or any of its Subsidiaries, and the amount thereof
(either individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by such Loan
Party or any of its Subsidiaries but after deducting any portion thereof
that is reasonably expected to be paid by other creditworthy Persons
jointly and severally liable therefor);
(q) commencing with any Fiscal Year ending after December 31, 1999,
the Borrower shall fail to maintain a period of 30 consecutive days in such
Fiscal Year during which the average principal amount of Working Capital
Advances outstanding during such 30 day period does not exceed $5,000,000.
then, and in any such event, the Paying Agent (i) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each
Lender Party to make Advances (other than Swing Line Advances by a
Revolving Credit Lender pursuant to Section 2.02(b)) to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, (A) by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith
due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (x) the Commitments of each
Lender Party and the obligation of each Lender Party to make Advances
(other than Swing Line Advances by a Revolving Credit Lender pursuant to
Section 2.02(b)) shall automatically be terminated and (y) the Notes, all
such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. (a) Each Lender Party (in its
capacities as a Lender and a Swing Line Bank (if applicable)) hereby appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including,
without
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limitation, enforcement or collection of the Notes), no Agent shall be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all other holders of
Notes; provided, however, that no Agent shall be required to take any action
that exposes such Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Agent agrees to give to each Lender Party
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
(b) The Documentation Agent shall have no powers or discretion under
this Agreement or any of the other Loan Documents and each of the Lender Parties
hereby acknowledges that the Documentation Agent has no liability under this
Agreement or under any of the Loan Documents.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent: (a) may treat
the payee of any Note as the holder thereof until, in the case of the Paying
Agent, the Paying Agent receives and accepts an Assignment and Acceptance
entered into by the Lender Party that is the payee of such Note, as assignor,
and an Eligible Assignee, as assignee, or, in the case of any other Agent, such
Agent has received notice from the Paying Agent that it has received and
accepted such Assignment and Acceptance, in each case as provided in Section
8.07; (b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on the part of
any Loan Party or to inspect the property (including the books and records) of
any Loan Party; (e) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier)
reasonably believed by it to be genuine and signed or sent by the proper party
or parties.
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SECTION 7.03. Chase, Citicorp and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Chase and
Citicorp shall have the same rights and powers under the Loan Documents as any
other Lender Party and may exercise the same as though it were not an Agent; and
the term "Lender Party" or "Lender Parties" shall, unless otherwise expressly
indicated, include Chase and Citicorp in their respective individual capacities.
Chase and Citicorp and their respective affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person that may do business with or own
securities of any Loan Party or any such Subsidiary, all as if Chase and
Citicorp were not Agents and without any duty to account therefor to the Lender
Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees
to indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents; provided, however, that
no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence, willful
misconduct or unlawful acts as found in a final, non-appealable judgment by a
court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse each Agent promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 8.04, to the extent
that such Agent is not promptly reimbursed for such costs and expenses by the
Borrower.
(b) For purposes of this Section 7.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) the aggregate unused
portions of their Term Commitments at such time, (iii) their
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respective Unused Working Capital Commitments at such time and (iv) their
respective Unused Revolving Credit Commitments at such time; provided that the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments. The failure of
any Lender Party to reimburse any Agent promptly upon demand for its ratable
share of any amount required to be paid by the Lender Parties to such Agent as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Agent for its ratable share of such amount, but no
Lender Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent for such other Lender Party's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender Party
hereunder, the agreement and obligations of each Lender Party contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign as to any or all
of the Facilities at any time by giving not less than 30 days' prior written
notice thereof to the Lender Parties and the Borrower and may be removed as to
all of the Facilities at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent as to such of the Facilities as to which such Agent
has resigned or been removed. If no successor Agent with, so long as no Default
shall have occurred and be continuing, the approval of the Borrower (which
approval shall not be unreasonably withheld or delayed) shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lender Parties, appoint a successor Agent with, so long as no
Default shall have occurred and be continuing, the approval of the Borrower
(which approval shall not be unreasonably withheld or delayed), which successor
Agent shall be a commercial bank organized under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent as to less than all of the Facilities and, in the case of a
successor Paying Agent, upon the execution and filing or recording of such
financing statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Pledge Agreement, such successor Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under the Loan Documents. If within 45 days after written notice
is given of the retiring Agent's resignation or removal under this Section 7.06
no successor Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (a) the retiring Agent's resignation or
removal shall become effective, (b) the retiring Agent shall thereupon be
discharged from its duties and obligations under the Loan Documents and (c)
provided no Default has occurred and is
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continuing, the Borrower may appoint a successor Agent or if no successor Agent
is appointed by the Borrower at such time, the Required Lenders shall thereafter
perform all duties of the retiring Agent under the Loan Documents until such
time, if any, as the Required Lenders appoint a successor Agent as provided
above. After any retiring Agent's resignation or removal hereunder as Agent as
to any or all of the Facilities shall have become effective, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent as to such Facilities under this Agreement.
SECTION 7.07. Intercreditor Agreement . Each Lender and each Agent
hereby authorizes the Paying Agent to execute and deliver the Intercreditor
Agreement on its behalf and consents and agrees to be bound by the terms and
provisions of the Intercreditor Agreement to the same extent and with the same
effect as if such Lender or such Agent had executed and delivered the same as
one of the original parties thereto as a Lender or Agent, as the case may be, in
respect of this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. Except as otherwise contemplated by
Section 8.07 and the Subsidiary Guaranty, no amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the Pledge
Agreement or the Subsidiary Guaranty, consented to) by the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders (other than any Lender Party that is, at such time, a Defaulting Lender,
except for clause (v) hereof), do any of the following at any time: (i) waive
any of the conditions specified in Section 3.01 or, in the case of the Initial
Extension of Credit, Section 3.02, (ii) change the number of Lenders or the
percentage of (x) the Commitments or (y) the aggregate unpaid principal amount
of the Advances, (iii) reduce or limit the obligations of any Subsidiary
Guarantor under Section 1 of the Subsidiary Guaranty issued by it or release
such Subsidiary Guarantor or otherwise limit such Subsidiary Guarantor's
liability with respect to the obligations owing to the Agents and the Lender
Parties, (iv) amend Section 2.12, or (v) amend this Section 8.01, and (b) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Lender that has a Commitment under the Term Facility, Revolving
Credit Facility or Working Capital Facility if such Lender is directly affected
by such amendment, waiver or consent, (i) increase the Commitments of such
Lender, (ii) reduce the principal of, or interest on, the Notes held by such
Lender or any fees or other amounts payable hereunder to such Lender, (iii)
postpone any date fixed for any payment of
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principal of, or interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender, (iv) change the order of application
of any prepayment set forth in Section 2.05 in any manner that materially
affects such Lender, (v) other than as permitted under the Pledge Agreement,
release all or substantially all of the Collateral in any transaction or series
of related transactions or permit the creation, incurrence, assumption or
existence of any Lien on the Collateral in any transaction or series of related
transactions to secure any obligations other than obligations owing to the
Secured Parties under the Loan Documents; provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Bank in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank under this Agreement; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by an
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of such Agent under this Agreement or the other Loan Documents.
SECTION 8.02. Notices, Etc. Except as otherwise provided in Section
2.02, all notices and other communications provided for hereunder shall be in
writing (including telecopy communication confirmed by mail or delivery) and
mailed, telecopied, or delivered, if to the Borrower, at its address at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇; if to any Initial Lender,
at its Domestic Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to
Chase as Paying Agent or Co-Administrative Agent, at its address at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇; and if to Citicorp as
Co-Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier (▇▇▇) ▇▇▇-▇▇▇▇; or, as to any party, at such other telecopy number or
address as shall be designated by such party in a written notice to the other
parties. All such notices and other communications shall, when mailed,
telecopied or delivered, be effective when deposited in the mails, or
transmitted by telecopier, respectively, except that notices and communications
to any Agent pursuant to Article II, III or VII shall not be effective until
received by such Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
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SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all reasonable costs and expenses of each Agent, the Joint Arrangers
and their Affiliates in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents (including,
without limitation, (A) all reasonable due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of one firm of counsel to the Agents with respect
thereto, with respect to advising such Agents as to their rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating in
or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of each Agent and each Lender Party in connection with the
enforcement of the Loan Documents after an Event of Default, whether in any
action, suit or litigation, or any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without limitation,
the reasonable fees and expenses of counsel for the Paying Agent and each Lender
Party with respect thereto). Notwithstanding anything to the contrary in the
foregoing, the Borrower will not be obligated to pay any allocated overhead
costs of the Agents, the Joint Arrangers, and their Affiliates.
(b) The Borrower agrees to indemnify, defend and save and hold
harmless SBHC, each Agent, each Joint Arranger, each Lender Party and each of
their Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "INDEMNIFIED PARTY") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel, but
excluding allocated overhead cost of SBHC, the Agents, the Joint Arrangers and
the Lender Parties and their Affiliates) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Advances, the Transaction Documents or any of the transactions
contemplated thereby, or (ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence,
willful misconduct or unlawful acts. In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party, whether or not any Indemnified Party is
otherwise a party thereto and whether
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or not the Transaction is consummated. The Borrower also agrees not to assert
any claim against SBHC, any Agent, any Joint Arranger, any Lender Party or any
of their Affiliates, or any of their respective officers, directors, employees,
agents and advisors, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances, the
Transaction Documents or any of the transactions contemplated by the Transaction
Documents.
(c) (i) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of (x) a payment or Conversion pursuant to Section 2.05, 2.08(b)(i)
or 2.09(d), (y) acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, or by an Eligible Assignee to a Lender Party other
than on the last day of the Interest Period for such Advance upon an assignment
of rights and obligations under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a), (z) if the
Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.03, 2.05 or 6.01 or otherwise, or (ii) the
Borrower fails to fulfill the applicable conditions set forth in Article III on
or before the date specified in any Notice of Borrowing for such Borrowing
delivered pursuant to Section 2.02, the Borrower shall, upon demand by such
Lender Party (with a copy of such demand to the Paying Agent), pay to the Paying
Agent for the account of such Lender Party any amounts required to compensate
such Lender Party for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion or such failure to
pay or prepay or borrow, as the case may be, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender Party to fund or maintain such Advance, all of which losses, costs and
expenses shall be an amount equal to the excess, if any, of (A) the amount of
interest that would have accrued on the principal amount of such Advance had
such event not occurred at the Eurodollar Rate that would have been applicable
to such Advance 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 or Convert, for the period that would have been the Interest Period for
such Loan), over (B) the amount of interest that 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, and the basis therefor, shall be delivered to
the Borrower and shall be conclusive and binding for all purposes, absent
manifest error.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, reasonable fees
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and expenses of counsel and indemnities, such amount may be paid on behalf of
such Loan Party by the Paying Agent or any Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.09 and 2.11 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Paying Agent
to declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Agent and each Lender Party and each of their respective Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Agent, such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under the Loan
Documents, irrespective of whether such Agent or such Lender Party shall have
made any demand under this Agreement or such Note or Notes and although such
obligations may be unmatured. Each Agent and each Lender Party agrees promptly
to notify the Borrower after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Agent and each Lender Party and
their respective Affiliates under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Agent, such Lender Party and their respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and each Agent and the Paying
Agent shall have been notified by each Initial Lender that such Initial Lender
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, each Agent and each Lender Party and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Any Lender (i) may
(and in the case of clause (B) below, shall) assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it);
provided that (A) except, in the case of an assignment to an Eligible Assignee
that is an Affiliate of a Lender, each of the Paying Agent and, unless a Default
shall have occurred and be continuing at the time such assignment is effected,
the Borrower must give their prior consent to
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such assignment (which consent shall not be unreasonably withheld or delayed)
and (B) if the assignment is demanded by the Borrower pursuant to Section 2.16,
no Default shall have occurred and be continuing at the time of such demand and
such assignment and the Borrower shall have given at least five Business Days'
notice of such demand to the applicable Lender and the Paying Agent; provided,
however, that (i) each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of one or more of
the Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an Affiliate of any Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the aggregate amount of the Commitments being assigned to such
Eligible Assignee pursuant to such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than the lesser of $5,000,000 and 5% of the aggregate amount (or such
lesser amount as shall be approved by the Paying Agent and, so long as no
Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the Borrower) of the Commitment being assigned, (iii) each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made as a
result of a demand by the Borrower pursuant to Section 2.16 shall be arranged by
the Borrower after consultation with the Paying Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment
(whether as a result of a demand by the Borrower pursuant to Section 2.16 or
otherwise) unless and until such Lender shall have received one or more payments
from either the Borrower or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal amount of the
Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Paying Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,500; provided,
however, the Borrower shall have no liability for the payment of such fee except
that for each such assignment made as a result of a demand by the Borrower
pursuant to Section 2.16, the Borrower shall pay to the Paying Agent the
applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (ii) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.09, 2.11 and 8.04
to the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under
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this Agreement (and, in the case of an Assignment and Acceptance covering all of
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any Lien created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any
Loan Party or the performance or observance by any Loan Party of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon any Agent, such assigning Lender Party or any other Lender
Party and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Paying Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lender Parties and the Commitment under each Facility of, and principal amount
of the Advances owing under each Facility to, each Lender Party from time to
time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agents
and the Lender Parties may treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Agent or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
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(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Paying Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower and
each other Agent. In the case of any assignment by a Lender, within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall, if new Notes are requested by the applicable assignee and/or
assignor, execute and deliver to the Paying Agent in exchange for the
surrendered Note or Notes a new Note to the order of such Eligible Assignee in
an amount equal to the Commitment assumed by it under each Facility pursuant to
such Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit ▇-▇, ▇-▇ or A-3 hereto, as the case may be.
(f) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
any Subsidiary Guarantor or all or substantially all of the Collateral.
(g) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve
Alliance Credit Agreement
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104
the confidentiality of any Confidential Information received by it from such
Lender Party in accordance with Section 8.09.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time pledge or assign all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System; provided that no such pledge or assignment shall release a Lender Party
from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender Party as a party hereto.
SECTION 8.08. 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. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 8.09. Confidentiality. Neither any Agent nor any Lender Party
shall disclose any Confidential Information to any Person without the consent of
the Borrower, other than (a) to such Agent's or such Lender Party's Affiliates
and their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants and swap counterparties, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
Federal or foreign authority or examiner regulating such Lender Party, (d) to
any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party on the same basis as applicable to a Lender Party under this
Section 8.09, and (e) as may be reasonably necessary in enforcing its rights
hereunder and under the other Loan Documents.
SECTION 8.10. Release of Collateral. Upon the sale, lease, transfer
or other disposition of any item of Collateral of any Loan Party in accordance
with the terms of the Loan Documents, the Collateral Agent will, at the
Borrower's expense, execute and deliver to such Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the Pledge
Agreement in accordance with the terms of the Loan Documents.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting
Alliance Credit Agreement
105
105
in New York County, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party, 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 any such New York State court or, to the fullest extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding, to the extent permitted by
law, 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 any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
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 or any of the other Loan
Documents to which it is a party in any New York State or Federal court. 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.
SECTION 8.12. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.13. Non-Recourse to the General Partner and Associated
Persons. Upon the effectiveness of the Assumption Agreement, each Agent and
each Lender Party agrees on behalf of itself and its successors, assigns and
legal representatives, that neither the General Partner nor any Person (other
than the Loan Parties or the Special General Partner) which is a partner,
shareholder, member, owner, officer, director, supervisor, trustee or other
principal (collectively, "ASSOCIATED PERSONS") of the Borrower or of the General
Partner or of a Subsidiary Guarantor, or any of their respective successors or
assigns, shall have any personal liability for the payment or performance of any
of the Borrower s obligations hereunder or under any of the Notes and no
monetary or other judgment shall be sought or enforced against the General
Partner or any of such Associated Persons or any of their respective successors
or assigns. Notwithstanding the foregoing, neither any Agent nor any Lender
Party shall be deemed barred by this Section 8.13 from asserting any claim
against any Person based upon an allegation of fraud or misrepresentation.
SECTION 8.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS
AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO
Alliance Credit Agreement
106
106
ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY AGENT OR ANY
LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ALLIANCE RESOURCE GP, LLC
By: ALLIANCE RESOURCE HOLDINGS, INC.,
its sole member
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Paying Agent and Co-Administrative
Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
CITICORP USA, INC., as Co-Administrative
Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
Alliance Credit Agreement
107
DEUTSCHE BANK AG, NEW YORK
BRANCH
as Documentation Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: Managing Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
INITIAL LENDERS
CITICORP USA, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
BANKBOSTON, N.A.
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Director
Alliance Credit Agreement
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Director
BANK OF OKLAHOMA, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
DEUTSCHE BANK AG,
NEW YORK BRANCH
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: Managing Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President and Manager
Alliance Credit Agreement
109
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
===============================================================================================================================
Working Revolving Domestic Eurodollar
Term Capital Credit Lending Lending
Name of Initial Lender Commitment Commitment Commitment Office Office
===============================================================================================================================
The Chase Manhattan $8,250,000 $4,125,000 $4,125,000 ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Attn: ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
Citicorp USA, Inc. $8,250,000 $4,125,000 $4,125,000 Citibank, N.A. Citibank, N.A.
Two Penn's Way ▇▇▇ ▇▇▇▇'▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
BankBoston, N.A. $7,000,000 $3,500,000 $3,500,000 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
Bank of Montreal $7,000,000 $3,500,000 $3,500,000 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. 115 ▇. ▇▇▇▇▇▇▇ St. 111-11C
111-11C Chicago, IL 60603
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
Alliance Credit Agreement
110
===============================================================================================================================
Working Revolving Domestic Eurodollar
Term Capital Credit Lending Lending
Name of Initial Lender Commitment Commitment Commitment Office Office
===============================================================================================================================
Bank of Oklahoma, N.A. $4,250,000 $2,125,000 $2,125,000 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
Deutsche Bank AG, $8,250,000 $4,125,000 $4,125,000 New York Branch Cayman Island Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited $7,000,000 $3,500,000 $3,500,000 New York Branch New York Branch
Two World Trade Center Two World Trade Center
New York, NY 10048 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
Total: $50,000,000 $25,000,000 $25,000,000
===============================================================================================================================
Alliance Credit Agreement
111
EXHIBIT I
FORM OF INTERCREDITOR AGREEMENT
Please see attached.
Alliance Credit Agreement
112
EXHIBIT G
[Intentionally Deleted]
Alliance Credit Agreement
113
$100,000,000
CREDIT AGREEMENT
Dated as of August 16, 1999
Among
ALLIANCE RESOURCE GP, LLC
as Borrower
and
THE INITIAL LENDERS AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders and Swing Line Bank
and
THE CHASE MANHATTAN BANK
as Paying Agent
and
THE CHASE MANHATTAN BANK and CITICORP USA, INC.
as Co-Administrative Agents
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Documentation Agent
and
CHASE SECURITIES, INC. AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Joint Advisors, Joint Lead Arrangers and Joint Book Managers
Alliance Credit Agreement
114
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms .............................................. 2
1.02. Computation of Time Periods; Other Definitional Provisions ......... 33
1.03. Accounting Terms ................................................... 33
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances ....................................................... 33
2.02. Making the Advances ................................................ 34
2.03. Repayment of Advances .............................................. 37
2.04. Termination or Reduction of the Commitments ........................ 38
2.05. Prepayments ........................................................ 38
2.06. Interest ........................................................... 40
2.07. Fees ............................................................... 41
2.08. Conversion of Advances ............................................. 42
2.09. Increased Costs, Etc. .............................................. 43
2.10. Payments and Computations .......................................... 44
2.11. Taxes .............................................................. 46
2.12. Sharing of Payments, Etc. .......................................... 48
2.13. Use of Proceeds .................................................... 48
2.14. Defaulting Lenders ................................................. 49
2.15. Evidence of Debt ................................................... 51
2.16. Replacement of Certain Lenders ..................................... 52
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Extension of Credit ................ 53
3.02. Conditions Precedent to Each Borrowing ............................. 58
3.03. Determinations Under Section 3.01 .................................. 59
Alliance Credit Agreement
115
SECTION ii PAGE
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower ..................... 59
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants .............................................. 67
5.02. Negative Covenants ................................................. 71
5.03. Reporting Requirements ............................................. 80
5.04. Financial Covenants ................................................ 83
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default .................................................. 86
ARTICLE VII
THE AGENTS
7.01. Authorization and Action ........................................... 90
7.02. Agents' Reliance, Etc. ............................................. 90
7.03. Chase, Citicorp and Affiliates ..................................... 91
7.04. Lender Party Credit Decision ....................................... 91
7.05. Indemnification .................................................... 91
7.06. Successor Agents ................................................... 92
7.07. Intercreditor Agreement ............................................ 93
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. ................................................... 93
8.02. Notices, Etc. ...................................................... 94
8.03. No Waiver; Remedies ................................................ 95
Alliance Credit Agreement
116
iii
8.04. Costs and Expenses ................................................. 95
8.05. Right of Set-off ................................................... 97
8.06. Binding Effect ..................................................... 97
8.07. Assignments and Participations ..................................... 97
8.08. Execution in Counterparts .......................................... 101
8.09. Confidentiality .................................................... 101
8.10. Release of Collateral .............................................. 101
8.11. Jurisdiction, Etc. ................................................. 101
8.12. Governing Law ...................................................... 102
8.13. Non-Recourse to the General Partner and Associated Persons ......... 102
8.14. WAIVER OF JURY TRIAL ............................................... 103
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule 4.01(a) - Capital Stock
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(p) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(q) - Environmental Disclosure
Schedule 4.01(r) - Open Years
Schedule 4.01(t) - Existing Debt
Schedule 4.01(u) - Surviving Debt
Schedule 4.01(v) - Liens
Schedule 4.01(w) - Investments
Schedule 5.01(q) - Transactions with Affiliates
EXHIBITS
Exhibit A-1 - Form of Working Capital Note
Exhibit A-2 - Form of Term Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Subsidiary Guaranty
Exhibit F - Form of Solvency Certificate
Exhibit G - [Intentionally Deleted]
Exhibit H - Form of Assumption Agreement
Exhibit I - Form of Intercreditor Agreement
Alliance Credit Agreement
