EXHIBIT 4.5
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AEI RESOURCES, INC.
as Borrower
and
THE GUARANTORS PARTY HERETO
___________________________
$875,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 2, 1998
Amended and Restated as of December 14, 1998
___________________________
WARBURG DILLON READ LLC,
as Arranger and Syndication Agent,
and
UBS AG, STAMFORD BRANCH,
as Administrative Agent
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TABLE OF CONTENTS
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This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
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Section 1. Definitions, Accounting Matters and Rules of Construction................... 1
1.01. Certain Defined Terms.................................................... 1
1.02. Accounting Terms and Determinations...................................... 34
1.03. Classes and Types of Loans............................................... 34
1.04. Rules of Construction.................................................... 34
Section 2. Commitments, Letters of Credit, Fees, Register,
Prepayments and Replacement of Lenders............ 35
2.01. Loans.................................................................... 35
2.02. Borrowings............................................................... 36
2.03. Letters of Credit........................................................ 37
2.04. Termination and Reductions of Commitments................................ 42
2.05. Fees..................................................................... 42
2.06. Lending Offices.......................................................... 43
2.07. Several Obligations of Lenders........................................... 43
2.08. Notes: Register.......................................................... 43
2.09. Optional Prepayments and Conversions or Continuations of Loans........... 44
2.10. Mandatory Prepayments.................................................... 44
2.11. Replacement of Lenders................................................... 48
Section 3. Payments of principal and Interest.......................................... 48
3.01. Repayment of Loans....................................................... 48
3.02. Interest................................................................. 49
Section 4. Payments: Pro Rata Treatment: Computations Etc.............................. 50
4.01. Payments................................................................. 50
4.02. Pro Rata Treatment....................................................... 50
4.03. Computations............................................................. 51
4.04. Minimum Amounts.......................................................... 51
4.05. Certain Notices.......................................................... 51
4.06. Non-Receipt of Funds by Administrative Age................................ 52
4.07. Right of Setoff, Sharing of Payments: Etc................................ 53
Section 5. Yield Protection. Etc....................................................... 54
5.01. Additional Costs......................................................... 54
5.02. Limitation on Types of Loans............................................. 55
5.03. Illegality............................................................... 56
5.04. Treatment of Affected Loans.............................................. 56
5.05. Compensation............................................................. 56
5.06. Net Payments............................................................. 57
9.13. Post-Closing Deliveries; Further Assurances.....................................101
(i) Post-Closing Deliveries.........................................................101
(ii) Security Interests, Further Assurances..........................................102
9.14. Compliance with Environmental Laws..............................................103
9.15. Limitation on Transactions with Affiliates......................................104
9.16. Limitation on Accounting Changes, Limitation on.................................104
Investment Company Status.
9.17. Limitation on Modifications of Certain Documents,...............................104
Etc.
9.18. Interest Rate Protection Agreements.............................................104
9.20. Additional Obligors.............................................................105
9.21. Limitation on Leases............................................................105
9.22. Limitation on Other Restrictions on Amendment of................................106
Credit Documents
9.23. Designated Senior Debt..........................................................106
9.24. Limitation on Issuance or Dispositions
of Equity Interests of Borrower, Subsidiaries
and Unrestricted Subsidiaries...............................................106
9.26. Take or Pay Contracts...........................................................107
9.27. Tax Sharing Arrangements........................................................107
9.28. Maintenance of Corporate Separateness...........................................107
9.29. Changes in Factual Information Regarding the....................................107
Collateral
9.30. Casualty and Condemnation.......................................................108
Section 10. Events of Default..................................................108
Section 11. Agents.....................................................................111
11.01. General Provisions..............................................................111
11.02. Indemnification.................................................................113
11.03. Consents Under Other Credit Documents...........................................114
11.04. Collateral Sub-Agent............................................................114
Section 12. Miscellaneous......................................................114
12.01. Waiver..........................................................................114
12.02. Notices.........................................................................114
12.03. Expenses, Indemnification, Etc..................................................115
12.04. Amendments, Etc.................................................................116
12.05. Successors and Assigns..........................................................119
12.06. Assignments and Participations..................................................119
12.07. Survival........................................................................121
12.08. Captions........................................................................122
12.10. Governing Law: Submission to Jurisdiction, Waivers..............................122
12.11. Confidentiality.................................................................122
Signatures..............................................................................S-1
ANNEX A - Commitments
SCHEDULE 1.01(a) - Applicable Margins Before Reset Date
SCHEDULE 1.01(b) - Applicable Margins After Reset Date
SCHEDULE 1.01(c) - Applicable Revolving Credit Fee Percentage
SCHEDULE 1.01(d) - Covered Properties
SCHEDULE 1.01(e) - Existing Debt
SCHEDULE 1.01(f) - Guarantors
SCHEDULE 1.01(g) - Mine Sites
SCHEDULE 1.01(h) - Shipyard Properties
SCHEDULE 3.01(B) - Amortization Schedule
SCHEDULE 7.01(xviii)(4) - Surveys
SCHEDULE 8.02(b) - Certain Contingent Obligations
SCHEDULE 8.02(c) - Certain Financial Matters
SCHEDULE 8.03 - Litigation
SCHEDULE 8.06 - Consents
SCHEDULE 8.09 - Tax Matters
SCHEDULE 8.11 - Environmental Matters
SCHEDULE 8.14(a) - Subsidiaries of Borrower
SCHEDULE 8.14(b) - Organizational Structure
SCHEDULE 8.20 - Material Contract
SCHEDULE 8.21 - Labor Matters
SCHEDULE 9.07 - Certain Existing Liens
SCHEDULE 9.08 - Certain Indebtedness to Remain Outstanding
SCHEDULE 9.09 - Investments
SCHEDULE 9.15 - Existing Affiliate Agreements
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Tranche A Amended and Restated Term
Loan Note
EXHIBIT A-3 - Form of Tranche B Amended and Restated Tenn
Loan Note
EXHIBIT B - Form of Intercompany Note
EXHIBIT C - Form of Interest Rate Certificate
EXHIBIT D - Form of Security Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT E-2 - Form of Local Counsel Opinion
EXHIBIT F - Form of Notice of Assignment
EXHIBIT G-1 - Form of Mortgage
EXHIBIT G-2 - Form of Mortgage Amendment
EXHIBIT H - Form of Notice of Borrowing
EXHIBIT I - Form of Notice of Conversion/Continuation
EXHIBIT J - Form of Joinder Agreement
EXHIBIT K - Form of Section 5.06 Certificate for Lenders
EXHIBIT L - Form of Lien Waiver and Access Agreement
EXHIBIT M - Form of Assignment Agreement
EXHIBIT N - Form of Intercompany Lease Agreement
EXHIBIT O - Form of 7.01 (xviii)(9) Officers' Certificate
AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 2,1998,
amended and restated as of December 14, 1998, among AEI RESOURCES, INC., as
Borrower; the Guarantors party hereto; each of the lenders that is a signatory
hereto identified under the caption "LENDERS" on the signature pages hereto or
that, pursuant to Section 12.06(b), shall become a "Lender" hereunder
(individually, a "Lender" and, collectively, the "Lenders"); WARBURG DILLON READ
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LLC, as arranger and syndication agent ("Arranger"); UBS AG, Stamford Branch, as
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administrative agent ("Administrative Agent").
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A. Borrower, the Guarantors party thereto, the Lenders party
thereto, the Arranger and the Administrative Agent are parties to that certain
Credit Agreement dated as of September 2, 1998 (the "Existing Credit Agreement")
pursuant to which the Lenders agreed, subject to the terms and limitations of
the Existing Credit Agreement, to make certain Loans (as hereinafter defined) to
Borrower in an aggregate principal amount not to exceed $750,000,000.
B. The parties hereto wish to make certain modifications to the
Existing Credit Agreement to, among other things, make certain additional Term
Loans (as hereinafter defined) and reduce the Revolving Credit Loans (as
hereinafter defined).
The parties hereto agree as follows:
Section 1. Definitions, Accounting Matters and Rules of
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Construction.
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1.01. Certain Defined Terms. As used herein, the following terms
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shall have the following meanings:
"ABR Loans" shall mean Loans that bear interest at rates based upon
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the Alternate Base Rate.
"Acquisition" shall mean, with respect to any Person, any transaction
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or series of related transactions for the direct or indirect (a) acquisition of
all or substantially all of the Property of any other Person, or of any business
or division of any other Person, (b) acquisition of in excess of 50% of the
Equity Interests of any other Person, or otherwise causing any other Person to
become a Subsidiary of such Person, or (c) merger or consolidation or any other
combination with any other Person.
"Acquisition Consideration" shall mean the purchase consideration for
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any Acquisition and all other payments made by any Company in exchange for, or
as part of, or in connection with any Acquisition, whether paid in cash or by
exchange of Equity Interests or of assets or otherwise and whether payable at or
prior to the consummation of such Acquisition or deferred for payment at any
future time, whether or not any such future payment is subject to the occurrence
of any contingency, and includes any and all payments representing the purchase
price and any assumptions of Indebtedness, "earn-outs" and other Profit Payment
Agreements, consulting agreements, service agreements and non-competition
agreements.
"Additional Collateral" see Section 9.12.
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"Additional Obligors" see Section 9.20.
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"Adjusted Net Income" shall mean, for any period, the consolidated net
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income (loss) for such period, of Borrower and its Consolidated Subsidiaries
calculated on a consolidated basis in accordance with GAAP, adjusted by
excluding (to the extent taken into account in the calculation of such
consolidated net income (loss)) the effect of (a) gains or losses for such
period from Dispositions not in the ordinary course of business and Excluded
Dispositions, and the tax consequences thereof, (b) any non-recurring or
extraordinary items of income or expense for such period and the tax
consequences thereof, (c) the portion of net income (loss) of any Person (other
than a Subsidiary) in which Borrower or any Subsidiary has an ownership
interest, except to the extent of the amount of cash dividends or other cash
distributions actually paid to Borrower or (subject to clause (e) below) any
Subsidiary during such period, (d) the net income (loss) of any Person combined
with Borrower or any Subsidiary on a "pooling of interests" basis attributable
to any period prior to the date of combination, (e) the net income of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distribution by such Subsidiary was not for the relevant period permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary or its stockholders, (f) any net gain
from the collection of proceeds of life insurance or "key man" insurance
policies, (g) any income or loss from discontinued and terminated operations,
and (h) costs and expenses incurred in connection with Acquisitions consummated
on or prior to the Amendment and Restatement Date and the financing therefor.
"Administrative Agent" see the introduction hereto.
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"Advance Date" see Section 4.06.
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"AEI" shall mean AEI Holding Company, Inc., a Delaware corporation and
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its Subsidiaries.
"Affiliate" shall mean, with respect to any Person, any other Person
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which directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
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with its correlative meanings, "controlled by" and "under common control with")
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shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
Notwithstanding the foregoing, solely for purposes of Section 9.15, Borrower
shall not be deemed an Affiliate of any Subsidiary and no Subsidiary shall be
deemed an Affiliate of any other Subsidiary or Borrower. Each Unrestricted
Subsidiary shall be deemed an Affiliate of Borrower and the Subsidiaries.
"Affiliate Transaction" see Section 9.15.
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"Agent" means either of the Administrative Agent or Arranger.
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"Agreement" shall mean this Credit Agreement, as amended from time to
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time.
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"Alternate Base Rate" shall mean for any day, a rate per annum that is
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equal to the higher of (i) the Federal Funds Rate, plus 0.50%, or (ii) the Prime
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Rate.
"Amended and Restated Revolving Credit Notes" shall mean the
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promissory notes provided for by Section 2.08(a) and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time.
"Amended and Restated Term Loan Notes" shall mean the Amended and
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Restated Tranche A Term Loan Notes and the Amended and Restated Tranche B Term
Loan Notes.
"Amended and Restated Tranche A Term Loan Notes" shall mean the
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promissory notes provided for by Section 2.08(a)(ii) and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time.
"Amended and Restated Tranche B Term Loan Notes" shall mean the
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promissory notes provided for by Section 2.08(a)(iii) and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time.
"Amendment and Restatement Date" shall mean the date on which all
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conditions to the effectiveness of this Amended and Restated Credit Agreement
have been satisfied or waived.
"Amortization Payment" shall mean each scheduled installment of
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payments on the Term Loans as set forth in Section 3.01(b).
"Applicable Lending Office" shall mean, for each Lender and for each
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Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such
Lender) designated for such type of Loan on the signature pages hereof or such
other office of such Lender (or of an Affiliate of such Lender) as such Lender
may from time to time specify to Administrative Agent and Borrower as the office
by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall be, for any Loan, (x) from the Closing Date
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to the first date (the "Reset Date") Borrower shall have delivered to the
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Lenders the financial statements and Interest Rate Certificates required by
Sections 9.01(a) and (e) and an Officers' Certificate demonstrating the then
applicable Leverage Ratio, the percentage per annum set forth on Schedule
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1.01(a) for such Loan, and (y) on and after the Reset Date, when the Leverage
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Ratio at the end of the most recently ended fiscal quarter ending after such
date is as set forth in Schedule 1.01(b), the percentage per annum set forth
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opposite such Leverage Ratio in Schedule 1.01 (b) for such Loan. Any change in
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the Leverage Ratio shall be effective to adjust the Applicable Margin as of the
date of receipt by Administrative Agent of the Interest Rate Certificate most
recently delivered pursuant to Section 9.01(e). If Borrower fails to deliver the
Interest Rate Certificates and financial statements within the times specified
in Sections 9.01(a), (b) and (e), the Leverage Ratio shall be deemed to be
greater than or equal to 3.0:1.0 until Borrower delivers such Interest Rate
Certificates and financial statements.
"Applicable Revolving Credit Fee Percentage" shall mean 0.5000% per
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annum.
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"Approved Fund" shall mean, with respect to any Lender that is a fund
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or commingled investment vehicle that invests in commercial loans, any other
fund that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"Arranger" see the introduction hereto.
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"Assets Held for Sale" means (i) assets of the Borrower that are
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reported on the pro forma. financial statements of the Borrower contained in the
Amended Offering Memorandum and Solicitation Statement dated November 16, 1998
relating to the Borrowers exchange offer for the 10% Senior Notes due November
15, 2007 of AEI Holding Company, Inc. as assets held for sale in accordance with
GAAP and (ii) the office building in Fairview Heights, Illinois.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978.
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"Borrower" shall mean AEI Resources, Inc., a Delaware corporation.
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"Bridge Loan Agreement" shall mean the Senior Subordinated Credit
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Agreement dated as of September 2, 1998 among Borrower, the guarantors party
thereto, the financial institutions party thereto, Warburg Dillon Read LLC, as
arranger and syndication agent and UBS AG, Stamford Branch, as administrative
agent.
"Business Day" shall mean any day (a) on which commercial banks are
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not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Continuation or Conversion of or into, or an Interest Period for, a LIBOR Loan
or a notice by Borrower with respect to any such borrowing, payment, prepayment,
Continuation, Conversion or Interest Period, that is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period, any direct or
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indirect (by way of acquisition of securities of a Person or the expenditure of
cash or the incurrences of Indebtedness) expenditures in respect of the purchase
or other acquisition of fixed or capital assets, excluding (i) normal
replacement and maintenance programs properly charged to current operations,
(ii) any expenditure made with the Net Available Proceeds of any Disposition
effected pursuant to Section 9.06(g), (iii) any expenditure made with the
proceeds of any Excluded Disposition, (iv) expenditures in an amount not to
exceed the sum of (x) the Net Available Proceeds of any Casualty Event to the
extent such Net Available Proceeds are not required to be applied to the
prepayment of the Loans in accordance with Section 2.10(a)(i) and (y) the amount
of any applicable insurance deductibles with respect to such Casualty Event to
the extent such amount is applied as set forth in clause (w)(1) or (w)(II) of
Section 2.10(a)(i) within the period specified therein, (v) the purchase price
of equipment to the extent that the consideration therefor consists of used or
surplus equipment being traded in at such time or the proceeds of a concurrent
sale of such used or surplus equipment, in each case in the ordinary course of
business, and (vi) Acquisitions made pursuant to Section 9.06(h).
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"Capital Lease" as applied to any Person, shall mean any lease of any
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Property by that Person as lessee which, in conformity with GAAP, is required to
be classified and accounted for as a capital lease on the balance sheet of that
Person.
"Capital Lease Obligations" shall mean, for any Person, all
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obligations of such Person to pay rent or other amounts under a Capital Lease,
and, for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property (including
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Real Property) of any Person, any loss of title with respect to Real Property or
any loss of or damage to or destruction of, or any condemnation or other taking
(including by any Governmental Authority) of, such Property (including Real
Property) for which such Person or any of its Subsidiaries receives insurance
proceeds or proceeds of a condemnation award or other compensation. "Casualty
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Event" shall include but not be limited to any taking of any Mortgaged Real
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Property or Real Property of any Company or any part thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, general or
special, or by reason of the temporary requisition of the use or occupancy of
any Mortgaged Real Property or Real Property of any Company or any part thereof,
by any Governmental Authority, civil or military.
"CERCLA" shall mean the United States Comprehensive Environmental
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Response, Compensation and Liability Act of 1980, as amended.
"Change of Control" shall mean any transaction or event (including,
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without limitation, an issuance, sale or exchange of Equity Interests, a merger
or consolidation, or a dissolution or liquidation) occurring on or after the
date hereof (whether or not approved by the board of directors of Borrower) as a
direct or indirect result of which (a) if such transaction or event occurs prior
to the consummation of an Initial Public Offering, the Excluded Persons fail to
beneficially own, directly or indirectly, shares of Equity Interests of Borrower
representing at least a majority (on a fully diluted basis) of the aggregate
voting power of the voting Equity Interests of Borrower at the time outstanding
or the ability to appoint a majority of the board of directors of Borrower; (b)
if such transaction or event is an Initial Public Offering or occurs after the
consummation of an Initial Public Offering, (i) any Person or any group (other
than the Excluded Persons or the Excluded Group) shall (A) (directly or
indirectly) beneficially own in the aggregate shares of Equity Interests of
Borrower having 33-1/3% or more of the aggregate voting power of all shares of
Equity Interests of Borrower at the time outstanding and greater aggregate
voting power than the Excluded Persons, collectively, or (B) have the right or
power to appoint a majority of the board of directors of Borrower or (ii) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the board of directors of Borrower (together with any new
directors whose election by such board of directors or whose nomination for
election by the shareholders of Borrower was approved by a vote of at least a
majority of the directors of Borrower then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute at least
a majority of the board of directors of Borrower then in office; or (c) if such
transaction or event occurs at any time, whether before or after the
consummation of an Initial Public Offering, any event or circumstance
constituting a "change of control" or other similar occurrence under any
documentation evidencing or governing any
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Indebtedness of any Company in a principal amount in excess of $25.0 million
(other than under the Credit Documents or any mineral leases or real property
leases of any Company not constituting Indebtedness) shall occur which results
in an obligation of any Company to prepay, purchase, offer to purchase, redeem
or defease all or a portion of such Indebtedness. For purposes of this
definition, the terms "beneficially own" and "group" shall have the respective
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meanings ascribed to them pursuant to Section 13(d) of the United States
Securities Exchange Act of 1934, except that a Person or group shall be deemed
to "beneficially own" all securities that such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Class" see Section 1.03.
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"Closing Date" shall mean the date on which the initial extensions of
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credit are made hereunder.
"Code" shall mean the United States Internal Revenue Code of 1986, as
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amended.
"Collateral" shall mean all of the Pledged Collateral, Mortgaged Real
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Property, the Intercompany Leases and all other Property of whatever kind or
nature pledged as collateral for the Obligations under any Security Document.
"Collateral Account" see Section 9 of the Security Agreement.
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"Commission" shall mean the United States Securities and Exchange
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Commission.
"Commitment Letter" shall mean the Commitment Letter among UBS,
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Stamford Branch, Warburg Dillon Read LLC and Coal Ventures, Inc. dated August 3,
1998 together with all exhibits and schedules thereto and incorporated therein,
as such letter has been amended to the date hereof.
"Commitments" shall mean the Revolving Credit Commitments and the Term
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Loan Commitments.
"Companies" shall mean the Obligors and their respective Subsidiaries;
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and "Company" shall mean any of them. No Unrestricted Subsidiary (including AEI
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and its Subsidiaries until such time as AEI and its Subsidiaries shall cease to
constitute Unrestricted Subsidiaries hereunder) is a Company.
"Consolidated Interest Expense" shall mean, for any period, all
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interest expense for such period (including original issue discount, interest
paid in kind, commitment fees, letter of credit fees and the interest component
of Capital Leases) of Borrower and its Consolidated Subsidiaries for such period
including all capitalized interest and the net amounts payable under all
Interest Rate Protection Agreements.
"Consolidated Net Worth" shall mean at the date of determination
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thereof, the sum of (a) all items which in conformity with GAAP would be
classified as stockholders' equity on a
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consolidated balance sheet of the Borrower at such date and (b) preferred stock
of the Borrower which (i) has no mandatory redemptions prior to December 31,
2005 and (ii) was issued and is outstanding on terms and conditions reasonably
satisfactory to the Agents.
"Consolidated Rental Payments" shall mean, for any period, the
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aggregate amount of all rents paid or to be incurred under all operating leases
of Borrower and its Consolidated Subsidiaries as lessees (net of sublease
income).
"Consolidated Subsidiary" shall mean, for any Person, each Subsidiary of
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such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"Contaminant" see Section 8.11.
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"Contingent Obligation" shall mean, as to any Person, any direct or
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indirect liability of such Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person (the
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"primary obligor"), including any obligation of such Person (but excluding
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reclamation surety and similar bonds and undrawn letters of credit issued in the
ordinary course of business or in connection with any acquisition) (i) to
purchase, repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment or discharge
of any such primary obligation, or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each of (i)-(iv), a "Guaranty Obligation"); (b)
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with respect to any Surety Instrument (other than any Letter of Credit) issued
for the account of such Person or as to which such Person is otherwise liable
for reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation requires that
payment for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract; provided, however, that the
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term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business or obligations for any recoupable
advance or minimum royalty payments under any mineral lease or real property
lease. The amount of any Contingent Obligation shall (x) in the case of a
Guaranty Obligation, be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Guaranty Obligation is made or, if
not stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof, and (y) in the case of other Contingent Obligations, be equal
to the maximum reasonably anticipated liability in respect thereof.
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"Continue," "Continuation" and "Continued" shall refer to the
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continuation pursuant to Section 2.09 of a LIBOR Loan from one Interest Period
to the next Interest Period.
"Contractual Obligation" shall mean as to any Person, any provision of
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any security issued by such Person or of any mortgage, security agreement,
pledge agreement, indenture, credit agreement, securities purchase agreement,
debt instrument, contract, agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its Property is bound or
subject.
"Contribution" shall mean the contribution of all of the outstanding
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capital stock of Borrower to Holding by AEI Enterprises, Inc. and ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
"Convert," "Conversion" and "Converted" shall refer to a conversion
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pursuant to Section 2.09 of one Type of Loans into another Type of Loans, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Covered Properties" shall mean (i) with respect to the Real Property
------------------
of ▇▇▇▇▇▇▇, the Real Property set forth on Schedule 1.01(d)(i), (ii) with
-------------------
respect to the Real Property of Coal Ventures Holding Company, Inc. and its
Subsidiaries (other than Mid-Vol Leasing, Inc., Mega Minerals, Inc. and Premium
Processing, Inc. (collectively, "Mid-Vol") and CC Coal Company) and West-
Virginia-Indiana Coal Holding Company, Inc. and its Subsidiaries, the Real
Property set forth on Schedule 1.10(d)(ii), (iii) with respect to the Real
--------------------
Property of Mid-Vol, the Real Property set forth on Schedule 1.01(d)(iii), (iv)
---------------------
with respect to the Real Property of CC Coal Company, the Real Property set
forth on Schedule 1.01(d)(iv), (v) with respect to the Real Property of Kindill,
--------------------
the Real Property set forth on Schedule 1.01(d)(v), (vi) with respect to the
-------------------
Real Property of AEI, the Real Property set forth on Schedule 1.01(d)(vi) and
(viii) all Real Properties of the Obligors on which there are situated any
significant surface Improvements (as determined in the reasonable discretion of
the Administrative Agent) as set forth on Schedule 1.01(d)(viii).
"Covered Taxes" see Section 5.06(a).
-------------
"Credit Documents" shall mean this Agreement, the Notes, the Letter of
----------------
Credit Documents and the Security Documents and each of the other documents,
agreements, instruments, opinions and certificates now or. hereafter executed
and delivered in connection herewith or therewith.
"Creditor" shall mean (i) any Agent, (ii) the Issuing Lender, (iii)
--------
any Lender, and (iv) any Affiliate of a Lender party to a Swap Contract with an
Obligor to the extent such Swap Contract relates to any Loan.
"Cyprus Purchase Agreement" shall mean the Stock Purchase and Sale
-------------------------
Agreement dated as of May 28, 1998 between Cyprus Amax Coal Company, a Delaware
corporation, and AEI.
"Debt Issuance" shall mean the incurrence by any Obligor of any
-------------
Indebtedness after the Closing Date (other than as permitted by Section 9.08).
-8-
"Default" shall mean any event or condition that constitutes an Event
-------
of Default or that would become, with notice or lapse of time or both, an Event
of Default.
"Disposition" shall mean (i) any conveyance, sale, lease, assignment,
-----------
transfer or other disposition (including by way of merger or consolidation and
including any sale-leaseback transaction) of any Property (including receivables
and shares of Equity Interests of any Subsidiary or joint venture of any Person)
(whether now owned or hereafter acquired) by any Company to any Person other
than Borrower or any Wholly Owned Subsidiary, (ii) any issuance or sale by any
Subsidiary of its Equity Interests to any Person other than Borrower or any
Wholly Owned Subsidiary and any issuance or sale by any Unrestricted Subsidiary
of its Equity Interests to any Person other than Borrower or a Wholly Owned
Unrestricted Subsidiary, and (iii) any liquidating or other non-ordinary course
dividend or distribution received by any Company in respect of any Unrestricted
Subsidiary or any joint venture or similar enterprise, excluding, however, in
each case any Excluded Disposition.
"Disposition Event" shall mean the receipt by any Company of proceeds
-----------------
or distributions of any kind from Property received in consideration for a
Disposition.
"Disqualified Capital Stock" shall mean, with respect to any Person,
--------------------------
any Equity Interest of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other
than solely for Qualified Capital Stock), pursuant to a sinking fund obligation
or otherwise, or is redeemable at the sole option of the holder thereof (other
than solely for Qualified Capital Stock) or exchangeable or convertible into
debt securities of the issuer thereof at the note option of the holder thereof,
in whole or in part, on or prior to the date which is 90 days after the Final
Maturity Date.
"Dividend Payment" shall mean dividends (in cash, Property or
----------------
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any Equity Interests
or Equity Rights of any Company, but excluding dividends paid through the
issuance of additional shares of Qualified Capital Stock and any redemption or
exchange of any Qualified Capital Stock of such Obligor through the issuance of
Qualified Capital Stock of such Obligor.
"Dollars" and "$" shall mean lawful money of the United States of
------- -
America.
"Eligible Person" shall mean (i) a commercial bank organized under the
---------------
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100.0 million; (ii) a commercial bank organized under
the laws of any other country that is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
----
-9-
country, and having a combined capital and surplus in a dollar equivalent amount
of at least $100.0 million; provided, however, that such bank is acting through
-------- -------
a branch or agency located in the country in which it is organized or another
country that is also a member of the OECD; (iii) an insurance company, mutual
fund entity which is regularly engaged in making, purchasing or investing in
loans or securities or other financial institution organized under the laws of
the United States, any state thereof, any other country that is a member of the
OECD or a political subdivision of any such country with assets, or assets under
management, in a dollar equivalent amount of at least $100.0 million; (iv) any
Affiliate of a Lender; and (v) any other entity (other than a natural person)
which is an "accredited investor" (as defined in Regulation D under the United
States Securities Act of 1933, as amended) which extends credit or buys loans as
one of its businesses including, but not limited to, insurance companies, mutual
funds, and investment funds. With respect to any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed or advised
by the same investment advisor of such Lender or by an Affiliate of such
investment advisor shall be treated as a single Eligible Person.
"Environmental Claim" shall mean, with respect to any Person, any
-------------------
written notice, claim, demand or other communication (collectively, a "claim")
by any other Person alleging such Person's liability for any costs, cleanup
costs, response or corrective action costs, damages to natural resources or
other Property, personal injuries, fines or penalties arising out of or
resulting from (i) the presence, Release or threatened Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) any violation of any Environmental Law. The term
"Environmental Claim" shall include any claim by any Person seeking damages,
--------------------
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Laws" shall mean any and all applicable laws, rules or
------------------
regulations of any Governmental Authority, any orders, decrees, judgments or
injunctions and the common law relating to mining operations and activities or
pollution or protection of human health, safety or the environment, including
without limitation, ambient air, indoor air, soil, surface water, ground water,
wetlands, land or subsurface strata, including, without limitation, those
relating to Releases or threatened Releases of Hazardous Materials into the
environment, or otherwise relating to the manufacture, processing, generation,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials.
"Environmental Requirement" see Section 8.11.
-------------------------
"Equity Interests" shall mean, with respect to any Person, any and all
----------------
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on the date
hereof or issued after the Closing Date.
"Equity Issuance" shall mean any of (a) any issuance or sale after the
---------------
Closing Date by Borrower or any direct or indirect parent of Borrower of (x) any
Equity Interests (including any Equity Interests issued upon exercise of any
Equity Rights) or any Equity Rights, or (y) any other security or instrument
representing an Equity Interest (or the right to obtain any Equity Interest) in
the issuing or selling Person, or (b) the receipt by any Company after the
Closing Date of any capital contribution (whether or not evidenced by any Equity
Interest issued by the recipient of such contribution) other than from any other
Company, excluding in each case (i) any issuance of common
-10-
Equity Interests of Holding to the seller or sellers in consideration for a
Permitted Acquisition, (ii) any issuance or sale of Equity Interests in any
Subsidiary (which, for the avoidance of doubt, is treated as a Disposition),
(iii) any issuance or sale by Holding of Equity Interests of Holding to
employees, directors, officers or consultants pursuant to a benefit or
compensation plan in the ordinary course of business, (iv) any issuance of
Qualified Capital Stock of Holding to the extent that the proceeds thereof are
used for a contemporaneous purchase or redemption of Equity Interests of Holding
pursuant to Section 9.10(b)(iii), (v) any issuance of Equity Interests by any
Subsidiary to directors or nominees if required by applicable law if resulting
in de minimis proceeds, (vi) and issuance or sale by Borrower of Equity
Interests of Borrower pursuant to the exercise of stock options outstanding on
the Closing Date; and (viii) the issuance of Equity Interests to any Excluded
Person.
"Equity Rights" shall mean. with respect to any Person, any
-------------
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of Equity Interests of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the United States Employee Retirement Income
-----
Security Act of 1974, as amended.
"ERISA Entity" shall mean any member of an ERISA Group.
------------
"ERISA Event" shall mean (a) any "reportable event," as defined in
-----------
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by any
ERISA Entity of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by any ERISA Entity from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan, or the occurrence of
any event or condition which could reasonably be expected to constitute grounds
under ERISA for the termination of or the appointment of a trustee to
administer, any Plan; (f) the incurrence by any ERISA Entity of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; (g) the receipt by an ERISA Entity of any notice, or the
receipt by any Multiemployer Plan from any ERISA Entity of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; or (h) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which could result in liability to any Company or any
Unrestricted Subsidiary.
-11-
"ERISA Group" shall mean any Company and any Unrestricted Subsidiary
-----------
and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together
with Borrower, any Subsidiary or any Unrestricted Subsidiary, are treated as a
single employer under Section 414 of the Code.
"Projected Annualized Cost Savings" shall mean (i) for December 31,
---------------------------------
1998, $50.0 million, (ii) for March 31, 1999, $37.5 million, (iii) for June 30,
1999, $25.0 million, (iv) for September 30, 1999, $12.5 million and (v) for each
Test Date after September 30, 1999, $0.
"Event of Default" see Section 10.
----------------
"Excess Cash Flow" shall mean, for any period, (A) the sum of (i)
----------------
Operating Cash Flow for such period (calculated for this definition by adding
back the cash portion of all extraordinary or nonrecurring items of income
(other than from Dispositions and Excluded Dispositions) to the extent excluded
in the calculation of Adjusted Net Income and by deducting the cash portion of
all extraordinary or non-recurring items of expense or loss to the extent
excluded in the calculation of Adjusted Net Income), (ii) any net decrease in
Working Capital during such period, and (iii) cash received from the proceeds of
any life insurance or "key man" policies during such period, minus (B) the sum
of (i) cash interest expense (including, without duplication, cash Capital Lease
expense and commitment fees) of Borrower and its Consolidated Subsidiaries for
such period to the extent deducted in calculating Adjusted Net Income, (ii) the
sum of all scheduled principal payments (other than pursuant to Section
2.10(a)(v)) on any Indebtedness (including Capital Leases and Term Loans
pursuant to Section 3.01(b)) of Borrower and its Consolidated Subsidiaries made
during such period from internally generated funds and all prepayments of
Revolving Credit Loans made from internally generated funds to the extent
accompanied by a permanent reduction in Revolving Credit Commitments, (iii)
Capital Expenditures made during such period by Borrower and the Subsidiaries to
the extent funded from internally generated funds, (iv) all cash income taxes
actually paid by Borrower during such period and dividends paid during such
period by Borrower pursuant to Section 9.10(c)(ii), and (v) cash paid during
such period for any Permitted Acquisition to the extent funded from internally
generated funds, and (vi) any net increases in Working Capital during such
period.
"Exchange Act" shall mean the United States Securities Exchange Act of
------------
1934.
"Excluded Dispositions" shall mean (i) Dispositions for fair market
---------------------
value resulting in no more than $10.0 million in aggregate proceeds in any
fiscal year; (ii) an exchange of equipment or inventory for like equipment or
inventory, provided that the Person effecting such exchange receives
substantially equivalent value in such exchange for the Property disposed of,
(iii) any transaction permitted by Section 9.06 (other than clause (g) thereof),
any Lien permitted by Section 9.07 and any Investment permitted by Section 9.09;
(iv) any issuance of Equity Interests by any Subsidiary or Unrestricted
Subsidiary to directors or nominees if required by applicable law if resulting
in de minimis proceeds, (v) the disposition of Triton, (vi) the disposition of
-- -------
the Shipyard Properties, and (vii) the sale of one share of Employee Benefits
Management Inc. to ▇▇▇▇▇▇▇▇▇ Enterprises, Inc. and the sale of up to 20% of the
Equity Interests in Employee Benefits Management Inc.
-12-
"Excluded Equity Issuance" shall mean any issuance of Qualified
------------------------
Capital Stock of Borrower excluded from the definition of Equity Issuance by
virtue of clause (iv) thereof.
"Excluded Group" shall mean a "group" (as such term is used in
--------------
Sections 13(d) and 14(d) of the Exchange Act) that includes one or more Excluded
Persons; provided, however, that the voting power of the Equity Interests of
-------- -------
Borrower "beneficially owned" (as such term is used in Rule 13d-3 promulgated
under the Exchange Act) by such Excluded Persons (without attribution to such
Excluded Persons of the ownership by other members of the "group") represents a
majority of the voting power of the Equity Interests "beneficially owned" (as
such term is used in Rule 13d-3 promulgated under the Exchange Act) by such
group.
"Excluded Person" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
---------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and any
Affiliate of any of the foregoing that is directly or indirectly controlling or
controlled by, or under direct or indirect common control with, any of the
foregoing.
"Existing Affiliate Agreements" see Section 9.15.
-----------------------------
"Existing Debt" shall mean the Indebtedness of and commitments to make
-------------
extensions of credit in favor of Borrower and the Subsidiaries under the
existing debt instruments and credit facilities listed on Schedule 1.01(e).
----------------
"Federal Funds Rate" shall mean, for any day, the rate per annum
------------------ --- -----
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided, however, that (a) if the day for which such
-------- -------
rate is to be determined is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day and (b) if such rate is not
so published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to Administrative Agent on such Business Day on
such transactions by three federal funds brokers of recognized standing, as
determined by Administrative Agent.
"Fee Letter" shall mean the Fee Letter dated as of December 14, 1998
----------
by and among UBS AG, Stamford Branch, Warburg Dillon Read LLC and Coal Ventures,
Inc.
"Final Maturity Date" shall mean, September 30, 2005
-------------------
"Financial Maintenance Covenants" shall mean the covenants set forth
-------------------------------
in Section 9.11 (a) through (d).
"Funding Date" shall mean the date of the making of any extension of
------------
credit hereunder (including the Closing Date).
-13-
"GAAP" shall mean generally accepted accounting principles set forth
----
as of the relevant date in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the
date of determination.
"Governmental Authority" shall mean any government or political
----------------------
subdivision of the United States or any other country or any agency, authority,
board, bureau, central bank, commission, department or instrumentality thereof
or therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to such government or political subdivision.
"Governmental Real Property Disclosure Requirements" shall mean any
--------------------------------------------------
Requirement of Law of any Governmental Authority requiring notification of the
buyer or mortgagee of real property, or notification, registration, or filing to
or with any Governmental Authority, prior to the sale or mortgage of any real
property or transfer of control of an establishment, of the actual or threatened
presence or release into the environment, or the use, disposal, or handling of
Hazardous Material on, at, under, or near the real property to be sold or the
establishment for which control is to be transferred.
"Guarantee" shall mean the guarantee of each Guarantor pursuant to
---------
Section 6.
"Guaranteed Obligations" see Section 6.01.
----------------------
"Guarantors" shall mean Holding and each Subsidiary listed on Schedule
---------- --------
1.01(f), and each direct and indirect Subsidiary that guarantees the payment of
-------
the Obligations of Borrower hereunder and under the other Credit Documents
pursuant to Section 9.20.
"Guaranty Obligation" see the definition of Contingent Obligation.
-------------------
"▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ Holdings, Inc. a Kentucky corporation.
------
"Hazardous Material" shall mean any pollutant, contaminant, toxic,
------------------
hazardous, deleterious or extremely hazardous substance, constituent or waste,
or any other constituent, waste, material, compound or substance subject to
regulation under any Environmental Law including, without limitation, petroleum
or any petroleum product, including crude oil or any fraction thereof,
polychlorinated biphenyls, urea-formaldehyde insulation and asbestos.
"Holding" shall mean AEI Resources Holding, Inc.
-------
"Improvements" shall have the meaning given such term in the
------------
Mortgages.
-14-
"in the ordinary course of business" shall mean in the ordinary course
----------------------------------
of business of Borrower and the Subsidiaries consistent with past practice.
"incur" shall mean, with respect to any Indebtedness or other
-----
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "incurrence" "incurred" and "incurring" shall
---------- -------- ---------
have meanings correlative to the foregoing). Indebtedness of any Person or any
of its Subsidiaries existing at the time such Person becomes a Company (or is
merged into or consolidates with any Company), whether or not such Indebtedness
was incurred in connection with, or in contemplation of, such Person becoming a
Company (or being merged into or consolidated with any Company), shall be deemed
incurred at the time any such Person becomes a Company or merges into or
consolidates with any Company. Neither the accrual of interest, nor the
accretion of accreted value, shall be deemed to be an incurrence.
"Indebtedness" shall mean, for any Person, without duplication, (a)
------------
all indebtedness for borrowed money of such Person; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of Property
or services (other than trade payables and accrued expenses paid on customary
terms incurred in the ordinary course of business on ordinary terms and not more
than 90 days past due); (c) all noncontingent reimbursement or payment
obligations of such Person with respect to Surety Instruments (such as, for
example, unpaid reimbursement obligations in respect of a drawing under a letter
of credit, but excluding reclamation, surety and similar bonds and undrawn
letters of credit issued in the ordinary course of business or in connection
with any acquisition); (d) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of Property or businesses; (e) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property); (f) all Capital Lease Obligations of
such Person; (g) all net obligations of such Person with respect to Swap
Contracts (such obligations to be equal at any time to the aggregate net amount
that would have been payable by such Person at the most recent fiscal quarter
end in connection with the termination of such Swap Contracts at such fiscal
quarter end); (h) all obligations with respect to payments received in
consideration of coal or other minerals required to be acquired or produced
after the time of payment (including obligations under "take-or-pay" contracts
to deliver coal in return for payments already received); (i) all amounts
required to be paid by such Person as a guaranteed payment to partners,
including any mandatory redemption of shares or interests; 0) all indebtedness
of other Persons referred to in clauses (a) through (i) above secured by (or for
which the holder of such indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in Property (including accounts
and contracts rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such indebtedness; and (k) all
Guaranty Obligations of such Person in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through 0) above. Indebtedness
shall not include accounts extended by suppliers in the ordinary course of
business on normal trade terms in connection with the purchase of goods and
services or obligations for any recoupable advance or minimum royalty payments
under any mineral lease or real
-15-
property lease. The Indebtedness of any Person shall include any Indebtedness of
any partnership in which such Person is the general partner.
"Indemnitee" see Section 12.03.
----------
"Initial Public Offering" shall mean a primary underwritten public
-----------------------
offering of the common stock of Borrower, other than any public offering or sale
pursuant to a registration statement on Form S-8 or a comparable form.
"Insolvency Proceeding" shall mean, with respect to any Person, (a)
---------------------
any case, action or proceeding with respect to such Person before any court or
by or before any other Governmental Authority relating to bankruptcy,
insolvency, reorganization, liquidation, receivership, dissolution,
sequestration, conservatorship, winding-up or relief of debtors (or the
convening of a meeting or the passing of a resolution for or with a view to any
of the foregoing), or (b) any assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other similar arrangement
in respect of such Person's creditors generally or any substantial portion of
its creditors.
"Intercompany Lease Agreement" shall mean an Amended and Restated
----------------------------
Collateral Assignment of Intercompany Leases, Subordination and Attainment
Agreement substantially in the form of Exhibit N among the Obligors and
---------
Administrative Agent, as the same may be amended in accordance with the terms
thereof and hereof or such other agreements reasonably acceptable to
Administrative Agent as shall be necessary to comply with applicable
Requirements of Law and effective to grant to Administrative Agent a Lien on and
security interest in the Intercompany Leases.
"Intercompany Leases" shall have the meaning set forth in the
-------------------
Intercompany Lease Agreement delivered on the Closing Date or thereafter
pursuant to Section 9.12.
"Intercompany Note" shall mean a promissory note substantially in the
-----------------
form of Exhibit B.
---------
"Interest Coverage Ratio" shall mean, for any Test Date, the ratio of
-----------------------
(x) the sum of Operating Cash Flow for the four fiscal quarters ending on such
Test Date and the Projected Annualized Cost Savings applicable to such Test Date
to (y) Consolidated Interest Expense for the four fiscal quarters ending on such
Test Date. In computing the Interest Coverage Ratio, (i) Operating Cash Flow
will be calculated on a pro forma basis for all Acquisitions consummated during
the four full fiscal quarters ending on the applicable Test Date as if such
Acquisitions had been consummated at the beginning of such period and
Consolidated Interest Expense shall be calculated on a pro forma, basis assuming
any Indebtedness incurred in connection with the Acquisitions referred to in
clause (i) had been incurred at the beginning of the four fiscal quarters ending
on the applicable Test Date.
"Interest Period" shall mean, with respect to any LIBOR Loan, each
---------------
period commencing on the date such LIBOR Loan is made or Converted from an ABR
Loan or the last day of the next preceding Interest Period for such LIBOR Loan
and (subject to the requirements of Sections 2.01(a), 2.01(b), 2.01(c) and 2.09)
ending on the numerically corresponding day in the first,
-16-
second or third or sixth calendar month thereafter, as Borrower may select as
provided in Section 4.05, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Revolving
Credit Loan would otherwise end after the Revolving Credit Commitment
Termination Date, such Interest Period shall end on the Revolving Credit
Commitment Termination Date; (ii) no Interest Period for any Term Loan may
commence before and end after any Principal Payment Date, unless, after giving
effect thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or less
than the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be made
on such Principal Payment Date; (iii) each Interest Period that would otherwise
end on a day that is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day fails in the next
succeeding calendar month, on the next preceding Business Day); and (iv)
notwithstanding clauses (i) and (ii) above, no Interest Period shall have a
duration of less than one month and, if the Interest Period for any LIBOR Loan
would otherwise be a shorter period, such Loan shall not be available hereunder
as a LIBOR Loan for such period.
"Interest Rate Certificate" shall mean an Officers' Certificate
-------------------------
substantially in the form of Exhibit C delivered pursuant to Section 9.01(e),
---------
demonstrating in reasonable detail the calculation of the Leverage Ratio as of
any Test Date.
"Interest Rate Protection Agreement" shall mean, for any Person, an
----------------------------------
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"internally generated funds" shall mean funds not generated from the
--------------------------
proceeds of any Loan, Debt Issuance, Equity Issuance, Disposition, insurance
recovery or Indebtedness (in each case without regard to the exclusions from the
definition thereof (other than sales of inventory in the ordinary course of
business)).
"Investment" shall mean, for any Person: (a) the acquisition (whether
----------
for cash, Property, services or securities or otherwise) of Equity Interests,
bonds, notes, debentures or other securities of any other Person; (b) the making
of any deposit with, or advance, loan or other extension of credit to, any other
Person (including the purchase of Property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such Property to
such Person); (c) any capital contribution to (by means of any transfer of cash
or other Property to others or any payment for Property or services for the
account or use of others) any other Person; and (d) the entering into, or direct
or indirect incurrence, of any Guaranty Obligation with respect to Indebtedness
or other liability of any other Person.
"Issuing Lender" shall mean UBS AG, Stamford Branch, or any of its
--------------
Affiliates, or such other Lender or Lenders selected by Administrative Agent
reasonably satisfactory to Borrower,
-17-
as the issuer of Letters of Credit under Section 2.03, together with its
successors and assigns in such capacity.
"Kindill" shall mean Kindill Holding, Inc., a Kentucky corporation,
-------
and its Subsidiaries.
"Lease" shall mean any lease, sublease, franchise agreement, license,
-----
occupancy or concession agreement.
"Lender" and "Lenders" see the introduction to this Agreement.
------ -------
"Letter of Credit" see Section 2.03.
----------------
"Letter of Credit Agreements" shall mean the Letter of Credit
---------------------------
Agreement dated September 2, 1998 between ▇▇▇▇▇▇▇ and First Chicago National
Bank, pursuant to which such Bank has issued letters of credit with an aggregate
face amount of approximately $6.0 million.
"Letter of Credit Documents" shall mean, with respect to any Letter of
--------------------------
Credit, collectively, any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (a) the fights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Revolving Credit
-------------------------
Lender, such Lender's participation interest (or, in the case of the Issuing
Lender, the Issuing Lender's retained interest) in the Issuing Lender's
liability under Letters of Credit and such Lender's fights and interests in
Reimbursement Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean without duplication, at any
--------------------------
time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit, plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit.
"Leverage Ratio" shall mean, for any Test Date, the ratio of (x) Total
--------------
Debt at such Test Date, to (y) the sum of Operating Cash Flow for the four full
fiscal quarters ending on such Test Date and the Projected Annualized Cost
Savings applicable to such Test Date. In computing the Leverage Ratio, Operating
Cash Flow will be calculated on a pro forma basis for all Acquisitions
consummated during the four full fiscal quarters ending on the applicable Test
Date as if such Acquisitions had been consummated at the beginning of such
period.
"LIBOR Base Rate" shall mean, with respect to any LIBOR Loan for any
---------------
Interest Period therefor, the rate per annum determined by Administrative Agent
to be the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered
rates for deposits in Dollars with a term
-18-
comparable to such Interest Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00
a.m., London, England time, on the second full Business Day preceding the first
day of such Interest Period; provided, however, that (i), if no comparable term
-------- -------
for an Interest Period is available, the LIBOR Base rate shall be determined
using the weighted average of the offered rates for the two terms most nearly
corresponding to such Interest Period and (ii) if there shall at any time no
longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page,
"LIBOR Base Rate" shall mean, with respect to each day during each Interest
---------------
Period pertaining to LIBOR Loans comprising part of the same Borrowing, the rate
per annum equal to the rate at which Administrative Agent is offered deposits in
--- -----
Dollars at approximately 11:00 am., London, England time, two Business Days
prior to the first day of such Interest Period in the London interbank market
for delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to its portion of the amount of
such LIBOR Loan to be outstanding during such Interest Period.
"Telerate British Bankers Assoc. Interest Settlement Rates Page" shall mean the
--------------------------------------------------------------
display designated as Page 3750 on the Telerate System Incorporated Service (or
such other page as may replace such page on such service for the purpose of
displaying the rates at which Dollar deposits are offered by leading banks in
the London interbank deposit market).
"LIBOR Loans" shall mean Loans that bear interest at rates based on
-----------
rates referred to in the definition of "LIBOR Base Rate" in this Section 1.01.
"LIBOR Rate" shall mean, for any LIBOR Loan for any Interest Period
----------
therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined by Administrative Agent to be equal to the LIBOR Base Rate for
such Loan for such Interest Period divided by I minus the Reserve Requirement
(if any) for such Loan for such Interest Period.
"Lien" shall mean, with respect to any Property, any mortgage, deed of
----
trust, lien, pledge, claim, charge, assignment, hypothecation, security interest
or encumbrance of any kind, any other type of preferential arrangement in
respect of such Property or any filing of any financing statement under the UCC
or any other similar notice of Lien under any similar notice or recording
statute of any Governmental Authority, including any easement, right-of-way or
other encumbrance on title to Real Property, in each of the foregoing cases
whether voluntary or imposed by law, and any agreement to give any of the
foregoing. For purposes of the Credit Documents, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"Loans" shall mean the Revolving Credit Loans and the Term Loans.
-----
"Losses" of any Person shall mean the losses, liabilities, claims
------
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether
-19-
or not such Person shall be designated a party thereto) at any time (including
following the payment of the Obligations) incurred by, imposed on or asserted
against such Person.
"Majority Lenders" shall mean (i) at any time prior to the Closing
----------------
Date, Lenders holding at least a majority of the aggregate amount of the
Commitments, and (ii) at any time after the Closing Date, Lenders holding at
least a majority of the sum of (without duplication) (a) the aggregate principal
amount of outstanding Loans, plus (b) the aggregate amount of all Letter of
----
Credit Liabilities, plus (c) the aggregate Unutilized Revolving Credit
----
Commitments then in effect, plus (d) the aggregate amount of unused Term Loan
----
Commitments then in effect.
"Majority Revolving Credit Lenders" shall mean (i) at any time prior
---------------------------------
to the Closing Date, Lenders holding at least a majority of the aggregate amount
of the Revolving Credit Commitments and (ii) at any time after the Closing Date,
Lenders holding at least a majority of the sum of (without duplication) (a) the
aggregate principal amount of outstanding Revolving Credit Loans, plus (b) the
----
aggregate amount of all Letter of Credit Liabilities, plus (c) the aggregate
----
Unutilized Revolving Credit Commitments then in effect.
"Majority Term Lenders" shall mean (i) at any time prior to the
---------------------
Closing Date, Lenders holding at least a majority of the Term Loan Commitments,
and (ii) at any time after the Closing Date, Lenders holding at least a majority
of the stun of (a) the aggregate principal amount of outstanding Term Loans plus
----
(b) the aggregate amount of unused Term Loan Commitments then in effect.
"Majority Tranche A Term Loan Lenders" shall mean (i) at any time
------------------------------------
prior to the Closing Date, Lenders holding at least a majority of the Tranche A
Term Loan Commitments, and (ii) at any time after the Closing Date, Lenders
holding at least a majority of the sum of (a) the aggregate principal amount of
outstanding Tranche A Term Loans plus (b) the aggregate amount of unused Tranche
----
A Term Loan Commitments then in effect.
"Majority Tranche B Term Loan Lenders" shall mean (i) at any time
------------------------------------
prior to the Closing Date, Lenders holding at least a majority of the Tranche B
Tenn Loan Commitments and (ii) at any time after the Closing Date, Lenders
holding at least a majority of the sum of (a) the aggregate principal amount of
outstanding Tranche B Term Loans plus (b) the aggregate amount of unused Tranche
----
B Term Loan Commitments then in effect.
"Margin Stock" shall mean margin stock within the meaning of
------------
Regulations T, U and X.
"Material Adverse Change" shall mean, with respect to any Person, a
-----------------------
material adverse change, or any condition or event that has resulted or could
reasonably be expected to result in a material adverse change, in the condition
(financial or otherwise), business, Properties or results of operations of such
Person, individually or together with the Subsidiaries taken as a whole.
"Material Adverse Effect" shall mean, any of (a) a material adverse
-----------------------
effect, or any condition or event that has resulted or could reasonably be
expected to result in a material adverse
-20-
effect, on the operations, Properties, prospects or financial or other condition
of Borrower, individually or together with the Subsidiaries taken as a whole,
(b) a material adverse effect on the ability of the Obligors to consummate in a
timely manner the transactions contemplated hereby or to perform their
obligations under any Credit Document or (c) a material adverse effect on the
legality, binding effect or enforceability of any Credit Document or the rights
and remedies of Administrative Agent, the Lenders, the Issuing Lender or
Arranger thereunder.
"Mine" shall mean any excavation or opening into the earth now or
----
hereafter made from which coal or other minerals are or can be extracted on or
from any of the Covered Properties owned or leased by any Obligor, including,
without limitation, the mines described in the Reserve Reports delivered to the
Agents pursuant to Section 7.01(vii) of the Credit Agreement.
-----------------
"Mine Site" shall mean all Covered Property comprising a mine site
---------
(which site (i) shall include, without limitation, all Improvements (other than
Shipyard Properties) relating to or used in connection with such mine site
regardless of physical proximity to any Mine and (ii) contains one or more
Mines) as described, and commonly known by the names set forth, in Schedule
1.01(g).
"Mortgage" shall mean an agreement, including, but not limited to, a
--------
fee or leasehold mortgage, deed of trust or any other document acceptable to
Administrative Agent, creating and evidencing a Lien on a Mortgaged Real
Property, which shall be substantially in the form of Exhibit G-1, with such
-----------
schedules and including such additional provisions and other deviations from
such Exhibit or form as shall be necessary to conform such document to
applicable Requirements of Law or as shall be customary under such applicable
Requirements of Law, as the same may at any time be amended in accordance with
the terms thereof and hereof.
"Mortgage Amendment" shall mean an amendment to any Mortgage
------------------
substantially in the form of Exhibit G-2, with such schedules and including such
additional provisions and other deviations from such Exhibit or form as shall be
necessary to conform such document to applicable Requirements of Law or as shall
be customary under such applicable Requirements of Law, as the same may at any
time be amended in accordance with the terms thereof and hereof.
"Mortgaged Real Property" shall mean all Real Property which shall be
subject to a Mortgage (i) in the case of the Covered Properties described in
clauses (i), (ii), (iii), (iv), (v) and (vii) of the definition thereof,
delivered on the Closing Date, (ii) in the case of the Covered Properties
described in clauses (vi) and (vii) of the definition thereof, delivered on the
Amendment and Restatement Date (iii) in the case of all other Real Property
(other than the Intercompany Leases) delivered thereafter pursuant to Section
9.12 or Section 9.13, or (iv) in the case of the Intercompany Leases, delivered
pursuant to the provisions of the Intercompany Lease Agreement.
"Multiemployer Plan" shall mean at any time a multiemployer plan
------------------
within the meaning of Section 4001(a)(3) of ERISA (i) to which any member of the
ERISA Group is then making or accruing an obligation to make contributions, (ii)
to which any member of the ERISA Group has within the preceding five plan years
made contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period, or (iii) with respect to
which any Company could incur liability.
-21-
"NAIC" shall mean the National Association of Insurance Commissioners.
----
"Net Available Proceeds" shall mean:
----------------------
(i) in the case of any Disposition Event, the amount of Net Cash
Payments received by any Company in connection with such Disposition Event;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by any Company in respect of such Casualty Event net of (A) fees and
expenses incurred by such Company in connection with recovery thereof, (B)
repayments of Indebtedness (other than Indebtedness hereunder) to the
extent secured by a Lien on such Property that is permitted hereunder and,
to the extent such Property constitutes Collateral, under the applicable
Security Document, and (C) any taxes (including income, transfer, stamp,
duty, customs, withholding and any other taxes) paid or payable by any
Company in respect of amount so recovered (after application of all credits
and other offsets); and
(iii) in the case of any Equity Issuance or any Debt Issuance,
the aggregate amount of all cash received by any Company in respect thereof
net of all investment banking fees, discounts and commissions, legal fees,
consulting fees, accountants' fees, underwriting discounts and commissions
and other customary fees and expenses, actually incurred and satisfactorily
documented in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition Event,
-----------------
the aggregate amount of all cash payments (including any cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and
when received) received by any Company directly or indirectly in connection with
such Disposition Event; provided, however, that Net Cash Payments shall be net
-------- -------
(without duplication) of (i) the amount of all fees and expenses paid by any
Company in connection with such Disposition Event (the "Relevant Dispositions");
---------------------
(ii) any taxes (including income, transfer, stamp, duty, customs, withholding
and any other taxes) paid or estimated to be payable by any Company as a result
of the Relevant Disposition (after application of all credits and other
offsets); (iii) any repayments by any Company of Indebtedness (other than the
Obligations) to the extent that (a) such Indebtedness is secured by a Lien on
the Property that is the subject of the Relevant Disposition that is permitted
hereunder and, to the extent such Property constitutes Collateral, under the
applicable Security Document and (b) the transferee of (or holder of a Permitted
Lien on) such Property requires that such Indebtedness be repaid as a condition
to the purchase of such Property; (iv) amounts required to be paid to any Person
(other than any Company) owning a beneficial interest in the assets subject to
such Relevant Disposition; and (v) appropriate amounts to be provided by any
Company, as a reserve, in accordance with GAAP, against any liabilities
associated with such Relevant Disposition and retained by any Company after such
Relevant Disposition, including, without limitation, pension and other post-
employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Relevant
Disposition, all as reflected in an Officers' Certificate delivered to
Administrative Agent.
-22-
"Non-U.S. Lender" see Section 5.06(b).
---------------
"Notes" shall mean the Amended and Restated Revolving Credit Notes and
-----
the Amended and Restated Term Loan Notes.
"Notice of Assignment" shall mean a notice of assignment pursuant to
--------------------
Section 12.06 substantially in the form of Exhibit F.
---------
"Notice of Borrowing" shall mean a notice of borrowing substantially
-------------------
in the form of Exhibit H.
---------
"Obligations" shall mean all amounts, direct or indirect, contingent
-----------
or absolute, of every type or description, and at any time existing, owing to
any Creditor or any of its Related Parties or their respective successors,
transferees or assignees pursuant to the terms of any Credit Document or secured
by any of the Security Documents, whether or not the right of such Person to
payment in respect of such obligations and liabilities is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured and whether or not such claim
is discharged, stayed or otherwise affected by any bankruptcy case or insolvency
or liquidation proceeding.
"Obligors" shall mean Borrower and the Guarantors.
--------
"Officers' Certificate" shall mean, as applied to any corporation, a
---------------------
certificate executed on behalf of such corporation by its Chairman of the Board
(if an officer) or its Chief Executive Officer or one of its Vice Presidents (or
an equivalent officer) and by its Chief Financial Officer, Vice President-
Finance or its Treasurer (or an equivalent officer) or any Assistant Treasurer
in their official (and not individual) capacities; provided, however, that every
-------- -------
Officers' Certificate with respect to the compliance with a condition precedent
to the making of any Loan or the taking of any other action hereunder shall
include (i) a statement that the officers making or giving such Officers'
Certificate have read such condition and any definitions or other provisions
contained in this Agreement relating thereto, and (ii) a statement as to
whether, in the opinion of the signers, such condition has been complied with.
"Operating Cash Flow" shall mean, for any period, the sum (without
-------------------
duplication) of the amounts for such period of Adjusted Net Income, plus in each
----
case to the extent deducted in calculating such Adjusted Net Income, (i) income
tax expense, (ii) Consolidated Interest Expense, (iii) depreciation expense and
amortization expense, and (iv) the non-cash component of any item of expense
(including, without limitation, writedowns and impairment of property, plant and
equipment and intangibles and other long-lived assets), other than to the extent
requiring an accrual or reserve for future cash expenses, all as determined on a
consolidated basis for Borrower and its Consolidated Subsidiaries.
"Original Lenders" shall mean the Lenders named on the signature pages
----------------
hereof who were Lenders at the Closing Date.
-23-
"Organic Document" shall mean, relative to any Person, its certificate
----------------
of incorporation, its bylaws, its partnership agreement, its memorandum and
articles of association, share designations or similar organization document,
voting trusts and similar arrangements applicable to any of its authorized
shares of Equity Interests.
"Other Taxes" see Section 5.06(b).
-----------
"Participant" see Section 12.06(c).
-----------
"Payment Date" shall mean any Principal Payment Date and each date on
------------
which interest is due and payable on any Loan.
"Payor" see Section 4.06.
-----
"PBGC" shall mean the United States Pension Benefit Guaranty
----
Corporation or any successor thereto.
"Permits" see Section 8.17.
-------
"Permitted Acquisition" shall mean any Acquisition effected in
---------------------
compliance with Section 9.06(h), (in) or (n).
"Permitted Investments" shall mean, for any Person: (a) direct
---------------------
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or by any agency thereof, in either case maturing not more than one
year from the date of acquisition thereof by such Person; (b) time deposits,
certificates of deposit or bankers' acceptances (including eurodollar deposits)
issued by (i) any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500.0 million and a deposit rating of investment grade or
(ii) Kentucky Bank & Trust in an amount not to exceed $5.0 million at any one
time; (c) commercial paper rated A-1 or better by Standard & Poor's Corporation
or P-1 or better by ▇▇▇▇▇'▇ Investors Service, Inc., respectively, maturing not
more than 180 days from the date of acquisition thereof by such Person; (d)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above; (e) securities with
maturities of six months or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or A by Moody's; or (f) money market mutual funds that invest
primarily in the foregoing items.
"Permitted Liens" see Section 9.07.
---------------
"Permitted Refinancing" shall mean, with respect to any Indebtedness
---------------------
or Contingent Obligation, any refinancing thereof, provided, however that (w) no
-------- -------
Default shall have occurred and be continuing or would arise therefrom, (x) any
such refinancing Indebtedness shall (I) not be on
-24-
financial and other terms that are more onerous, taken as a whole, to any
Company or Creditor than the Indebtedness or Contingent Obligation being
refinanced and shall not have defaults, rights or remedies more burdensome,
taken as a whole, to any Company or Creditor than the Indebtedness being
refinanced, (II) not have a stated maturity or weighted average life that is
shorter than the Indebtedness or Contingent Obligation being refinanced, (III)
be at least as subordinate to the Obligations as the Indebtedness or Contingent
Obligation being refinanced (and unsecured if the refinanced Indebtedness is
unsecured), and (IV) be in principal amount that does not exceed the principal
amount so refinanced, plus the lesserof (1) the stated amount of any premium
or other payment required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness or Contingent Obligation being
refinanced and (2) the amount of premium or other payment actually paid at such
time to refinance the Indebtedness, plus in either case, the amount of
----
reasonable expenses of any Obligor or any Subsidiary incurred in connection with
such refinancing and (y) the sole obligor on such refinancing Indebtedness or
Contingent Obligation shall be Borrower or the original obligor on such
Indebtedness or Contingent Obligation being refinanced; provided, however, that
-------- -------
(1) any guarantor of the Indebtedness or Contingent Obligation being refinanced
shall be permitted to guarantee the refinancing Indebtedness, and (ii) Borrower
shall be permitted to guarantee any such refinancing of any Qualified
Subsidiary.
"Person" shall mean any individual, corporation, company, voluntary
------
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Plan" shall mean at any time an employee pension benefit plan (other
----
than a Multiemployer Plan) which is covered by Title TV of ERISA or subject to
the minimum funding standards under Section 412 of the Code or Section 302 of
ERISA and is maintained or contributed to by any member of the ERISA Group or
with respect to which any Company or Unrestricted Subsidiary could incur
liability.
"Pledged Collateral" shall have the meaning set forth in any Security
------------------
Agreement delivered on the Closing Date or thereafter pursuant to Section 9.12.
"Prime Rate" shall mean for any day, a rate per annum that is equal to
---------- --- -----
the corporate base rate of interest established by Administrative Agent from
time to time, changing when and as said corporate base rate changes. The
corporate base rate is not necessarily the lowest rate charged by Administrative
Agent to its customers.
"Principal Office" shall mean the principal office of Administrative
----------------
Agent, located on the date hereof at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office as may be designated by Administrative
Agent.
"Principal Payment Date" shall mean, with respect to any Term Loan,
----------------------
each Quarterly Date set forth on Schedule 3.01(b) on which a payment of
principal is due with respect to such Term Loan.
-25-
"Prior Liens" shall mean Liens which, pursuant to the provisions of
-----------
any Security Document, are or may be superior to the Lien of such Security
Document.
"Proceeding" shall mean any claim, counterclaim, action, judgment,
----------
suit, hearing, arbitration or proceeding, including by or before any
Governmental Authority and whether judicial or administrative.
"Profit Payment Agreement" shall mean any agreement to make any
------------------------
payment the amount of which is, or the terms of payment of which are, in any
respect subject to or contingent upon the revenues, income, cash flow or profits
(or the like) of any Person or business.
"Pro Forma Balance Sheets" see Section 8.02(d).
------------------------
"Pro Forma Date" see Section 8.02(d).
--------------
"Property" shall mean any right, title or interest in or to property
--------
or assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including Equity Interests or other ownership
interests of any Person.
"Qualified Capital Stock" shall mean with respect to any Person any
-----------------------
Equity Interests of such Person which is not Disqualified Capital Stock.
"Qualified Subsidiary" shall mean any Wholly Owned Subsidiary of
--------------------
Borrower that is an Obligor.
"Quarter" shall mean each three month period ending on March 31, June
-------
30, September 30 and December 31.
"Quarterly Dates" shall mean the last Business Day of March, June,
---------------
September and December in each year, commencing with the last Business Day of
March, 1999.
"Real Property" shall mean, collectively, all right, title and
-------------
interest of any Company (including, without limitation, any leasehold or mineral
estate) in and to any and all parcels of real property owned or operated by any
Company, whether by lease, license or other use agreement, together with, in
each case, all improvements and appurtenant fixtures, equipment, personal
property, easements and other property and rights incidental to the ownership,
lease or operation thereof
"redeem" shall mean redeem, repurchase, repay, defease or otherwise
------
acquire or retire for value; and "redemption" and "redeemed" have correlative
meanings.
"refinance" shall mean refinance, renew, extend, replace, defease or
---------
refund, in whole or in part, including successively; and "refinancing" and
-----------
"refinanced" have correlative meanings.
-----------
"Register" see Section 2.08.
--------
-26-
"Regulation D" shall mean Regulation D (12 C.F.R. Part 204) of the
------------
Board of Governors of the United States Federal Reserve System.
"Regulations T, U and X" shall mean, respectively, Regulation T (12
----------------------
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the United States Federal Reserve System
(or any successor), as the same may be modified and supplemented and in effect
from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
-----------------
after the date hereof in United States Federal, state or foreign law or
regulations (including Regulation D) or the adoption or making after such date
of any interpretation, directive or request applying to a class of banks or
other financial institutions including such Lender of or under any Federal,
state or foreign law or regulations (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority or any other regulatory agency with proper
authority, including non-governmental agencies or bodies, charged with the
interpretation or administration thereof or by the NAIC.
"Reimbursement Obligations" shall mean, at any time, the obligations
-------------------------
of Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Related Parties" see Section 11.01.
---------------
"Release" shall mean any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the environment.
"Replaced Lender" see Section 2.11.
---------------
"Replacement Lender" see Section 2.11.
------------------
"Required Payment" see Section 4.06.
----------------
"Requirement of Law" shall mean as to any Person, the Certificate of
------------------
Incorporation and ByLaws or other Organic Documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its Property is
subject.
"Reserve Reports" see Section 7.01(vii).
---------------
"Reserve Requirement" shall mean, for any Interest Period for any
-------------------
LIBOR Loan, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the United States Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D). LIBOR
Loans shall be deemed to constitute Eurocurrency liabilities and to be subject
to such reserve requirements
-27-
without benefit of or credit for proration, exceptions or offsets which may be
available from time to time to any Lender under Regulation D.
"Reset Date" see the definition of Applicable Margin.
----------
"Responsible Officer" shall mean the chief executive officer of
-------------------
Borrower and the president of Borrower (if not the chief executive officer) and,
with respect to financial matters, the chief financial officer of Borrower.
"Revolving Credit Commitment" shall mean, for each Revolving Credit
---------------------------
Lender, the obligation of such Lender to make Revolving Credit Loans in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount set opposite the name of such Lender on Annex A under the caption
-------
"Revolving Credit Commitment" (as the same may be reduced from time to time
pursuant to Section 2.04 or changed pursuant to Section 12.06(b)). The aggregate
principal amount of the Revolving Credit Commitments as of the Amendment and
Restatement Date is $300.0 million (subject to the limitations set forth in
Section 2.01(a)).
"Revolving Credit Commitment Percentage" shall mean, with respect to
--------------------------------------
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Termination Date" shall mean the last
--------------------------------------------
Business Day in December 2003.
"Revolving Credit Commitments" shall mean the aggregate sum of the
----------------------------
Revolving Credit Commitments.
"Revolving Credit Facility" shall mean the credit facility comprising
-------------------------
the Revolving Credit Commitment of all of the Revolving Credit Lenders.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the
------------------------
Lenders having Revolving Credit Commitments on the signature pages hereof and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"Revolving Credit Loans" see Section 2.01(a).
----------------------
"Security Agreement" shall mean an Amended and Restated Security
------------------
Agreement substantially in the form of Exhibit D among the Obligors and
---------
Administrative Agent, as the same may be amended in accordance with the terms
thereof and hereof or such other agreements reasonably acceptable to
Administrative Agent as shall be necessary to comply with applicable
Requirements of Law and effective to grant to Administrative Agent a perfected
first priority Lien on and security interest in the Pledged Collateral.
-28-
"Security Documents" shall mean the Security Agreements, the
------------------
Mortgages, the Mortgage Amendments, the Intercompany Lease Agreement and each
other security document or pledge agreement required by applicable Requirements
of Law to grant a valid, perfected Lien on and security interest in any property
or asset acquired or developed pursuant to a Permitted Acquisition or any other
Additional Collateral, and all UCC or other financing statements or instruments
of perfection required by this Agreement, the Security Agreement or any Mortgage
to be filed with respect to the security interests in Property and fixtures
created pursuant to any Security Agreements or any Mortgage and any other
document or instrument utilized to pledge any Property of whatever kind or
nature as collateral for the Obligations.
"Senior Notes Indenture" means the indenture dated as of December 14,
----------------------
1998 between the Borrower and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee.
"Senior Subordinated Notes Indenture" means the indenture dated as of
-----------------------------------
December 14, 1998 between the Borrower and State Street Bank and Trust Company,
as trustee.
"Shipyard Properties" shall mean all import/export shipyard terminal
-------------------
facilities located on any Real Properties of the Obligors as set forth on
Schedule 1.01(h).
"Significant Subsidiary" shall have the meaning set forth in Rule 1-02
----------------------
of Regulation S-X under the Securities Act of 1933, as amended.
"Solvent" and "Solvency" shall mean, for 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 and liabilities beyond such Person's ability to pay as such
debts and liabilities mature, (d) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's Property would constitute an unreasonably small capital and
(e) such Person is able to pay its debts as they become due and payable.
"Subordinated Indebtedness" shall mean Indebtedness of or any Company
-------------------------
that is subordinated to any other Indebtedness of such Company.
"Subsidiary" shall mean, with respect to any Person, any corporation,
----------
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. Unless the context clearly requires otherwise, all references to
any Subsidiary shall mean a
-29-
Subsidiary of Borrower. All references to any Subsidiary of Borrower shall
include all those Persons which become Subsidiaries of Borrower upon
consummation of the transactions contemplated hereby. Other than for purposes of
the definition of "Unrestricted Subsidiary," unless otherwise indicated, all
reference herein to any Subsidiary of Borrower shall not include any
Unrestricted Subsidiary.
"Supermajority Lenders" shall mean (i) at any time prior to the
---------------------
Closing Date, Lenders holding at least two-thirds of the aggregate amount of the
Commitments and (ii) at any time after the Closing Date, Lenders holding at
least two-thirds of the sum of (without duplication) (a) the aggregate principal
amount of outstanding Loans, plus (b) the aggregate amount of all Letter of
----
Credit Liabilities, plus (c) the aggregate unused amount of Revolving Credit
----
Commitments then in effect, plus (d) the aggregate amount of unused Term Loan
----
Commitments then in effect.
"Supermajority Lenders of the Affected Class" shall mean (i) at any
-------------------------------------------
time prior to the Closing Date, Lenders holding at least two-thirds of the
aggregate amount of the Commitments of the applicable tranche of Term Loan
Commitments which would be affected by any modification, supplement or waiver
contemplated by clause (e) or (f) to the proviso to Section 12.04(i), and (ii)
at any time after the Closing Date, Lenders holding at least two-thirds of the
sum of (a) the aggregate amount of the outstanding Loans of the applicable
tranche of Term Loans, plus (b) the aggregate amount of unused Term Loan
----
Commitments then in effect which would be affected by any modification,
supplement or waiver contemplated by clause (e) or (f) to the proviso to Section
12.04(i).
"Surety Instruments" shall mean all letters of credit (including
------------------
standby and commercial), bankers' acceptances, bank guarantees, surety bonds and
similar instruments.
"Survey" shall mean a survey of any Real Property (and all
------
improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state, province or country where such Real Property is
located, (ii) dated (or redated) not earlier than 6 months prior to the date of
delivery thereof unless there shall have occurred after the date of such survey
any exterior construction on the site of such Real Property, in which event such
survey shall be dated (or redated) after the completion of such construction or,
if such construction shall not have been completed as of such date of delivery,
not earlier than 20 days prior to such date of delivery, (iii) certified by the
surveyor (in a manner acceptable to Administrative Agent) to Administrative
Agent and (iv) with respect to Real Property set forth on Schedule 1.01(d)(vi)
and any other Real Property on which significant surface Improvements (as
determined in the reasonable discretion of Administrative Agent) are located,
sufficiently detailed for the Title Company to delete the survey exception or
issue a comprehensive endorsement in the applicable title policy (or, in the
case of significant surface Improvements located on the portions of the Covered
Properties affected by the consents set forth on Schedule 8.06, sufficiently
detailed for the Person delivering a title opinion or certificate of title with
respect thereto, to deliver such opinion or certificate free from exceptions of
the type commonly known as "survey exceptions" to title insurance policies), and
if necessary, to do so, complying in all respects with the minimum detail
requirements of the American Land Title Association as such requirements are in
effect on the date of preparation of such Survey.
-30-
"Swap Contract" shall mean any agreement entered into in the ordinary
-------------
course of business (as a bona fide hedge and not for speculative purposes)
(including any master agreement and any agreement, whether or not in writing,
relating to any single transaction) that is an interest rate swap agreement,
basis swap, forward rate agreement, commodity swap, commodity option, equity or
equity index swap or option, bond option, interest rate option, foreign exchange
agreement, rate cap, collar or floor agreement, currency swap agreement,
crosscurrency rate swap agreement, swaption, currency option or any other
similar agreement (including any option to enter into any of the foregoing) and
is designed to protect the Obligors against fluctuations in interest rates,
currency exchange rates, or similar risks (including any Interest Rate
Protection Agreement entered into pursuant to Section 9.18).
"Take-Out Securities" shall have the meaning given to such term in the
-------------------
Bridge Loan Agreement.
"Tax Returns" see Section 8.09.
-----------
"Taxes" see Section 8.09.
-----
"Term Loan Commitments" shall mean the Tranche A Term Loan Commitments
---------------------
and the Tranche B Term Loan Commitments, collectively.
"Term Loan Facilities" shall mean the credit facilities comprising the
--------------------
Term Loan Commitments.
"Term Loan Lenders" shall mean the Tranche A Term Loan Lenders and the
-----------------
Tranche B Term Loan Lenders, collectively.
"Term Loan Tranches" shall mean the Term Loans outstanding under the
------------------
Tranche A Term Loans and the Tranche B Term Loans, collectively, and "Term Loan
---------
Tranche" shall mean any of them.
-------
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B
----------
Term Loans, collectively.
"Test Date" shall mean the last day of each fiscal quarter, beginning
---------
with December 31, 1998. Compliance with the Financial Maintenance Covenants
shall be tested, as of each Test Date, on the date on which financial statements
pursuant to Section 9.01(a) or (b) have been, or should have been, delivered for
the applicable fiscal period.
"Title Company" shall mean such title insurance or abstract company as
-------------
shall be designated by, or reasonably acceptable to, Administrative Agent.
"Total Debt" shall mean, at any date, the aggregate amount of
----------
Indebtedness of Borrower and its Consolidated Subsidiaries as of such date
determined on a consolidated basis in accordance with GAAP.
-31-
"Tranche A Term Loan Commitment" shall mean, for each Tranche A Term
------------------------------
Loan Lender, the obligation of such Lender to make a Tranche A Term Loan in an
amount up to but not exceeding the amount set opposite the name of such Lender
on Annex A under the caption "Tranche A Term Loan Commitment" (as the same may
-------
be changed pursuant to Section 12.06(b)).
"Tranche A Term Loan Commitment Percentage" shall mean, with respect
-----------------------------------------
to any Tranche A Term Loan Lender, the ratio of (a) the amount of the Tranche A
Term Loan Commitment of such Lender to (b) the Tranche A Term Loan Commitments.
"Tranche A Term Loan Commitments" shall mean the aggregate sum of the
-------------------------------
Tranche A Term Loan Commitment of all the Lenders.
"Tranche A Term Loan Lenders" shall mean (a) on the date hereof, the
---------------------------
Lenders having
"Tranche A Term Loan Commitments" on the signature pages hereof, and
-------------------------------
(b) thereafter, the Lenders from time to time holding Tranche A Term Loans and
Tranche A Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"Tranche A Term Loans" shall mean the loans provided for by Section
--------------------
2.01(b), which may be ABR Loans and/or LIBOR Loans.
"Tranche B Term Loan Commitment" shall mean, for each Tranche B Term
------------------------------
Loan Lender, the obligation of such Lender to make a Tranche B Term Loan in an
amount up to but not exceeding the amount set opposite the name of such Lender
on Annex A under the caption "Tranche B Term Loan Commitment" (as the same may
-------
be changed pursuant to Section 12.06(b)).
"Tranche B Term Loan Commitment Percentage" shall mean, with respect
-----------------------------------------
to any Tranche B Term Loan Lender, the ratio of (a) the amount of the Tranche B
Term Loan Commitment of such Lender to (b) the Tranche B Term Loan Commitments.
"Tranche B Term Loan Commitments" shall mean the aggregate sum of the
-------------------------------
Tranche B Term Loan Commitment of all the Lenders.
"Tranche B Term Loan Lenders" shall mean (a) on the date hereof, the
---------------------------
Lenders having Tranche B Term Loan Commitments on the signature pages hereof,
and (b) thereafter, the Lenders from time to time holding Tranche B Term Loans
and Tranche B Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b).
"Tranche B Term Loans" shall mean the loans provided for by Section
--------------------
2.01(c), which may be ABR Loans and/or LIBOR Loans.
"Triton" shall mean Triton Coal Company, L.L.C.
------
"Type" see Section 1.03.
----
-32-
"UCC" shall mean the Uniform Commercial Code as in effect in the
---
applicable state of jurisdiction.
"Unrestricted Subsidiary" shall mean any Subsidiary of Borrower, that,
-----------------------
at the time of determination, shall be an Unrestricted Subsidiary (as designated
by the Board of Directors of Borrower, as provided below). The Board of
Directors of Borrower may designate any Subsidiary of Borrower (including any
newly acquired or newly formed Subsidiary at or prior to the time it is so
formed or acquired) to be an Unrestricted Subsidiary if (a) no Default is
existing or will occur as a consequence thereof, (b) such Subsidiary does not
own any Equity Interests of, or own or hold any Lien on any Property of, any
Company, (c) such Subsidiary and each of its Subsidiaries has not at the time of
designation, and does not thereafter, create, incur, issue, assume, guarantee,
or otherwise become directly or indirectly liable with respect any Indebtedness
pursuant to which the lender has recourse to any Property of any Company (except
that such Subsidiary and its Subsidiaries may become Guarantors if consented to
by Arranger), and (d) a default by such Person on any of its Indebtedness will
not result in, or permit any holder of Indebtedness of any Company to declare, a
default on such Indebtedness of any Company or cause the payment thereof to be
accelerated or payable prior to its stated maturity. Any Subsidiary of an
Unrestricted Subsidiary shall be an Unrestricted Subsidiary for purposes of this
Agreement. Each such designation shall be evidenced by filing with
Administrative Agent a certified copy of the resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Unutilized Revolving Credit Commitment" shall mean, for any Revolving
--------------------------------------
Credit Lender, at any time, the excess of such Lender's Revolving Credit
Commitment at such time over the sum of (i) the aggregate outstanding principal
amount of Revolving Credit Loans made by such Lender and (ii) such Lender's
Revolving Credit Commitment Percentage of the aggregate amount of Letter of
Credit Liabilities at such time.
"Wholly Owned Subsidiaries" shall mean, with respect to any Person,
-------------------------
any corporation, partnership or other entity of which all of the Equity
Interests (other than, in the case of a corporation, directors' qualifying
shares or nominee shares required under applicable law) are directly or
indirectly owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person. Unless the context clearly requires otherwise, all
references to any Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary
of Borrower.
"Wholly Owned Unrestricted Subsidiary" shall mean any Unrestricted
------------------------------------
Subsidiary of which all the Equity Interests (other than, in the case of a
corporation, directors' qualifying shares or nominee shares required under
applicable law) are directly or indirectly owned or controlled by Borrower or
one or more Wholly Owned Unrestricted Subsidiaries or by Borrower and one or
more Wholly Owned Unrestricted Subsidiaries.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
--------------------
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
-33-
"Working Capital" shall mean an amount determined for Borrower and the
---------------
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) equal to the sum of all current assets (other than cash)
less the sum of all current liabilities (other than the current portion of long-
term Indebtedness).
1.02. Accounting Terms and Determinations. Except as otherwise
-----------------------------------
provided in this Agreement, all computations and determinations as to accounting
or financial matters shall be made in accordance with GAAP, and all accounting
or financial terms shall have the meanings ascribed to such terms by GAAP as in
effect on the date hereof. All financial statements to be delivered pursuant to
this Agreement shall be prepared in accordance with GAAP. All financial
covenants are to be calculated in accordance with GAAP as in effect on the date
hereof unless such modifications are agreed to by the parties hereto. If
Borrower or any Lender determines that a change in GAAP from that in effect on
the date hereof has altered the treatment of certain financial data to its
detriment under this Agreement, such parry may by written notice to the others
and Arranger not later than ten days after the effective date of such change in
GAAP, request renegotiation of the financial covenants affected by such change.
If Borrower and the Majority Lenders have not agreed on revised covenants within
30 days after delivery of such notice, then, for purposes of this Agreement,
GAAP will mean generally accepted accounting principles on the date just prior
to the date on which the change that gave rise to the renegotiation occurred.
1.03. Classes and Types of Loans. Loans hereunder are distinguished
--------------------------
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a
-----
Loan) refers to whether such Loan is a Revolving Credit Loan, Tranche A Term
Loan or a Tranche B Term Loan, each of which constitutes a Class. The "Type" of
----
a Loan refers to whether such Loan is an ABR Loan or a LIBOR Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
1.04. Rules of Construction. (a) In this Agreement and each other
---------------------
Credit Document, unless the context clearly requires otherwise (or such other
Credit Document clearly provides otherwise), references to (i) the plural
include the singular, the singular the plural and the part the whole; (ii)
Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; (iii) agreements (including this Agreement), promissory notes and
other contractual instruments include subsequent amendments, assignments, and
other modifications thereto, but only to the extent such amendments, assignments
or other modifications thereto are not prohibited by their terms or the terms of
any Credit Document; (iv) statutes and related regulations include any
amendments of same and any successor statutes and regulations; and (v) time
shall be a reference to New York City time. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
(b) In this Agreement and each other Credit Document, unless the
context clearly requires otherwise (or such other Credit Document clearly
provides otherwise), (i) "amend" shall mean "amend, restate, amend and restate,
-----
supplement or modify"; and "amended," "amending," and "amendment" shall have
------- -------- ---------
meanings correlative to the foregoing; (ii) in the computation of periods of
time from a specified date to a later specified date, "from" shall mean "from
----
and including"; "to" and "until" shall mean "to but excluding"; and "through"
-- ----- -------
-34-
shall mean "to and including"; (iii) "hereof," "herein" and "hereunder" (and
------ ------ ---------
similar terms) in this Agreement or any other Credit Document refer to this
Agreement or such other Credit Document, as the case may be, as a whole and not
to any particular provision of this Agreement or such other Credit Document;
(iv) "including" (and similar terms) shall mean "including without limitation"
---------
(and similarly for similar terms); (v) "or" has the inclusive meaning
represented by the phrase "and/or"; (vi) "satisfactory to" any Creditor shall
---------------
mean in form, scope and substance and on terms and conditions satisfactory to
such Creditor; (vii) references to "the date hereof" shall mean the date first
---------------
set forth above; and (viii) "asset" and "Property" shall have the same meaning
----- --------
and effect and refer to all tangible and intangible assets and property, whether
real, personal or mixed and of every type and description.
(c) In this Agreement unless the context clearly requires otherwise,
any reference to (i) an Annex, Exhibit or Schedule is to an Annex, Exhibit or
Schedule, as the case may be, attached to this Agreement and constituting a part
hereof, and (ii) a Section or other subdivision is to a Section or such other
subdivision of this Agreement.
(d) No doctrine of construction of ambiguities in agreements or
instruments against the interests of the party controlling the drafting thereof
shall apply to any Credit Document.
Section 2. Commitments, Letters of Credit, Fees, Register,
Prepayments and Replacement of Lenders.
-------------------------------------------------
2.01. Loans.
-----
(a) Revolving Credit Loans. Each Revolving Credit Lender severally
----------------------
agrees, on the terms and conditions of this Agreement, to make revolving credit
loans (the "Revolving Credit Loans") to Borrower in Dollars during the period
----------------------
from and including the Closing Date to but not including the Revolving Credit
Commitment Termination Date in an aggregate principal amount at any one time
outstanding not exceeding the amount of the Revolving Credit Commitment of such
Lender as in effect from time to time; provided, however, that in no event shall
-------- -------
the sum of the aggregate principal amount of (without duplication) all Revolving
Credit Loans then outstanding, plus the aggregate amount of all Letter of Credit
----
Liabilities at any time exceed the aggregate amount of the Revolving Credit
Commitments as in effect at such time. Subject to the terms and conditions of
this Agreement, during such period Borrower may borrow, repay and reborrow the
amount of the Revolving Credit Commitments by means of ABR Loans and LIBOR Loans
and may Convert Revolving Credit Loans of one Type into Revolving Credit Loans
of another Type (as provided in Section 2.09) or Continue Revolving Credit Loans
of one Type as Revolving Credit Loans of the same Type (as provided in Section
2.09).
(b) Tranche A Term Loans. Each Tranche A Term Loan Lender severally
--------------------
agrees, on the terms and conditions of this Agreement, to make a single term
loan to Borrower in Dollars on the Amendment and Restatement Date in an
aggregate principal amount equal to the Tranche A Term Loan Commitment of such
Lender, such loan to be used to finance the transactions contemplated hereby and
to pay related fees and expenses. Subject to the terms and conditions of this
Agreement, thereafter Borrower may Convert Tranche A Term Loans of one Type into
Tranche A Term Loans
-35-
of another Type (as provided in Section 2.09) or Continue Tranche A Term Loans
of one Type as Tranche A Term Loans of the same Type (as provided in Section
2.09). Each Tranche A Term Loan shall be made by a Tranche A Term Loan Lender
pro rata based on such Lender's Tranche A Term Loan Commitment Percentage. The
--- ----
aggregate sum of the amount of the Tranche A Term Loans made on the Amendment
and Restatement Date shall not exceed the Tranche A Term Loan Commitments or,
with respect to any Lender, its Tranche A Term Loan Commitment.
Tranche A Term Loans that are repaid or prepaid may not be reborrowed.
(c) Tranche B Tenn Loans. Each Tranche B Term Loan Lender severally
--------------------
agrees, on the terms and conditions of this Agreement, to make a single term
loan to Borrower in Dollars on the Amendment and Restatement Date in an
aggregate principal amount equal to the Tranche B Term Loan Commitment of such
Lender, such loan to be used to finance the transactions contemplated hereby and
to pay related fees and expenses. Subject to the terms and conditions of this
Agreement, thereafter Borrower may Convert Tranche B Term Loans of one Type into
Tranche B Term Loans of another Type (as provided in Section 2.09) or Continue
Tranche B Term Loans of one Type as Tranche B Term Loans of the same Type (as
provided in Section 2.09). Each Tranche B Term Loan shall be made by a Tranche B
Term Loan Lender pro rata based on such Lender's Tranche B Term Loan Commitment
--- ----
Percentage. The aggregate amount of the Tranche B Term Loans made on the
Amendment and Restatement Date shall not exceed the Tranche B Term Loan
Commitments or, with respect to any Lender, its Tranche B Term Loan Commitment.
Tranche B Term Loans that are repaid or prepaid may not be reborrowed.
(d) Limit on LIBOR Loans. No more than ten separate Interest Periods
--------------------
in respect of LIBOR Loans of any Class may be outstanding at any one time. LIBOR
Loans made prior to the earlier to occur of December 31, 1998 and such time as
An-anger has notified Borrower that the primary syndication of the credit
commitments and loans hereunder has been completed may only have an Interest
Period of one (1) month. No LIBOR Loans may be made at the Closing Date unless
consented to by An-anger in its sole discretion.
2.02. Borrowings. Borrower shall give Administrative Agent notice of
----------
each borrowing hereunder as provided in Section 4.05. The form of such notice of
borrowing shall be substantially in the form of Exhibit H. Not later than 12:00
---------
noon New York City Time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to Administrative Agent, at an account specified by Administrative
Agent maintained at the Principal Office, in immediately available funds, for
the account of Borrower. Each borrowing of Revolving Credit Loans shall be made
by each Revolving Credit Lender pro rata based on such Lender's Revolving Credit
--- ----
Commitment Percentage. The amounts so received by Administrative Agent shall,
subject to the terms and conditions of this Agreement, be made available to
Borrower by depositing the same, in immediately available funds, in an account
of Borrower maintained with Administrative Agent at the Principal Office
designated by Borrower.
-36-
2.03. Letters of Credit. Subject to the terms and conditions hereof,
-----------------
the Revolving Credit Commitments may be utilized, upon the request of Borrower,
in addition to the Revolving Credit Loans provided for by Section 2.01(a), for
standby and commercial documentary letters of credit (herein collectively called
"Letters of Credit") issued by the Issuing Lender for the account of Borrower or
-----------------
any Subsidiary which is an Obligation that Borrower shall be a co-applicant (and
jointly and severally liable) with respect to each Letter of Credit issued for
the account of any such Subsidiary); provided, however, that in no event shall
-------- -------
(i) the aggregate amount of all Letter of Credit Liabilities, plus the aggregate
----
principal amount of the Revolving Credit Loans then outstanding exceed at any
time the Revolving Credit Commitments as in effect at such time, (ii) the sum of
the aggregate principal amount of Revolving Credit Loans then outstanding made
by any Revolving Credit Lender, plus such Lender's pro rata share (based on the
---- --- ----
Revolving Credit Commitments) of the aggregate amount of all Letter of Credit
Liabilities exceed such Lender's Revolving Credit Commitment as in effect at
such time, (iii) the outstanding aggregate amount of all Letter of Credit
Liabilities exceed $225.0 million, (iv) the face amount of any Letter of Credit
be less than $ 100,000, (v) the expiration date of any Letter of Credit extend
beyond the earlier of (x) the fifth Business Day preceding the Revolving Credit
Commitment Termination Date and (y) the date twelve months following the date of
such issuance for standby Letters of Credit or 180 days after the date of such
issuance for commercial documentary Letters of Credit, unless the Majority
Revolving Credit Lenders have approved such expiry date in writing (but never
beyond the fifth Business Day prior to the Revolving Credit Commitment
Termination Date); provided however, that any (a) standby Letter of Credit may
-------- -------
be automatically extendible for periods of up to one year (but never beyond the
fifth Business Day preceding the Revolving Credit Commitment Termination Date)
so long as such Letter of Credit provides that the Issuing Lender retains an
option satisfactory to the Issuing Lender to terminate such Letter of Credit
prior to each extension date, unless all of the Revolving Credit Lenders have
approved such expiry date in writing and (b) any Letter of Credit issued in
connection with an Investment pursuant to Section 9.09(q) may have an expiration
date of June 30, 2002, or (vi) the Issuing Lender issue any Letter of Credit
after it has received notice from Borrower or the Majority Revolving Credit
Lenders stating that a Default exists until such time as the Issuing Lender
shall have received written notice of (x) rescission of such notice from the
Majority Revolving Credit Lenders, (y) waiver of such Default in accordance with
this Agreement or (z) Administrative Agent's good faith determination that such
Default has ceased to exist. The following additional provisions shall apply to
Letters of Credit:
(a) Borrower shall give Administrative Agent at least three
Business Days' irrevocable prior notice (effective upon receipt) specifying
the date (which shall be no later than thirty days preceding the Revolving
Credit Termination Date) each Letter of Credit is to be issued and
describing in reasonable detail the proposed terms of such Letter of Credit
(including the beneficiary thereof) (including whether such Letter of
Credit is to be a commercial Letter of Credit or a standby Letter of
Credit). Upon receipt of any such notice, Administrative Agent shall advise
the Issuing Lender of the contents thereof. Each Lender hereby authorizes
the Issuing Lender to issue, and perform its obligations under, Letters of
Credit. Letters of Credit shall be issued in accordance with the customary
procedures of the Issuing Lender, which may include an application for
Letters of Credit. The Issuing Lender may refuse to issue any Letter of
Credit the contents of which are not reasonably satisfactory
-37-
to it. If there is any conflict between the procedures required by the
Issuing Lender and this Agreement, this Agreement shall govern.
(b) On each day during the period commencing with the issuance by
the Issuing Lender of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Revolving Credit Commitment of
each Revolving Credit Lender shall be deemed to be utilized for all
purposes hereof in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the then undrawn face amount of such Letter of
Credit. Each Revolving Credit Lender (other than the Issuing Lender) agrees
that, upon the issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in the Issuing Lender's liability
under such Letter of Credit in an amount equal to such Lender's Revolving
Credit Commitment Percentage of such liability, and each Revolving Credit
Lender (other than the Issuing Lender) thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and shall be unconditionally obligated to the Issuing Lender to pay
and discharge when due, its Revolving Credit Commitment Percentage of the
Issuing Lender's liability under such Letter of Credit. The Issuing Lender
shall be deemed to hold a Letter of Credit Liability in an amount equal to
its retained interest in the related Letter of Credit after giving effect
to such acquisition by the Revolving Credit Lenders other than the Issuing
Lender of their participation interests.
(c) Upon the making of any payment to the beneficiary of any
Letter of Credit, the Issuing Lender shall promptly notify Borrower
(through Administrative Agent) of the amount paid by the Issuing Lender and
the date on which payment was made to such beneficiary. Borrower hereby
unconditionally agrees to pay and reimburse the Issuing Lender for the
amount of payment under such Letter of Credit, together with interest
thereon at the Alternate Base Rate plus the Applicable Margin applicable to
Revolving Credit Loans from the date payment was made to such beneficiary
to the date on which payment is due, not later than the next Business Day
after the date on which Borrower receives such notice from the Issuing
Lender. Any such payment due from Borrower and not paid on the required
date shall bear interest at rates specified in Section 3.02(b).
(d) Forthwith upon its receipt of a notice referred to in clause
(c) of this Section 2.03, Borrower shall advise the Issuing Lender whether
or not Borrower intends to borrow hereunder to finance its obligation to
reimburse the Issuing Lender for the amount of the related demand for
payment and, if it does, submit a notice of such borrowing as provided in
Section 4.05. In the event that Borrower fails to so advise Administrative
Agent, or if Borrower fails to reimburse the Issuing Lender for a demand
for payment under a Letter of Credit by the next Business Day after the
date of such notice, Administrative Agent shall give each Revolving Credit
Lender prompt notice of the amount of the demand for payment, specifying
such Lender's Revolving Credit Commitment Percentage of the amount of the
related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Lender)
shall pay to Administrative Agent for account of the Issuing Lender at the
Principal Office in Dollars and in immediately available funds, the amount
of such Lender's Revolving Credit
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Commitment Percentage of any payment under a Letter of Credit upon notice
by the Issuing Lender (through Administrative Agent) to such Revolving
Credit Lender requesting such payment and specifying such amount. Each such
Revolving Credit Lender's obligation to make such payments to
Administrative Agent for account of the Issuing Lender under this clause
(e), and the Issuing Lender's right to receive the same, shall be absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including (i) the failure of any other Revolving Credit Lender to make its
payment under this clause (e), (ii) the financial condition of Borrower or
the existence of any Default or (iii) the termination of the Commitments.
Each such payment to the Issuing Lender shall be made without any offset,
abatement, withholding or reduction whatsoever.
(f) Upon the making of each payment by a Revolving Credit Lender
to the Issuing Lender pursuant to clause (e) above in respect of any Letter
of Credit, such Lender shall, automatically and without any further action
on the part of Administrative Agent, the Issuing Lender or such Lender,
acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Lender by Borrower hereunder
and under the Letter of Credit Documents relating to such Letter of Credit
and (ii) a participation in a percentage equal to such Lender's Revolving
Credit Commitment Percentage in any interest or other amounts payable by
Borrower hereunder and under such Letter of Credit Documents in respect of
such Reimbursement Obligation. Upon receipt by the Issuing Lender from or
for the account of Borrower of any payment in respect of any Reimbursement
Obligation or any such interest or other amounts (including by way of
setoff or application of proceeds of any collateral security) the Issuing
Lender shall promptly pay to Administrative Agent for account of each
Revolving Credit Lender which has satisfied its obligations under clause
(e) above, such Revolving Credit Lender's Revolving Credit Commitment
Percentage of such payment, each such payment by the Issuing Lender to be
made in the same money and funds in which received by the Issuing Lender.
In the event any payment received by the Issuing Lender and so paid to the
Revolving Credit Lenders hereunder is rescinded or must otherwise be
returned by the Issuing Lender, each Revolving Credit Lender shall, upon
the request of the Issuing Lender (through Administrative Agent), repay to
the Issuing Lender (through Administrative Agent) the amount of such
payment paid to such Lender, with interest at the rate specified in clause
(i) of this Section 2.03.
(g) Borrower shall pay to Administrative Agent for the account of
the Issuing Lender in respect of each Letter of Credit a letter of credit
commission in an amount equal to (x) the rate per annum equal to the
--- -----
Applicable Margin for Revolving Credit Loans that would be LIBOR Loans in
effect at the time of issuance thereof, multiplied by (y) the daily average
undrawn face amount of such Letter of Credit (but in no event less than
$500 per Letter of Credit on a per annum basis) for the period from and
--- -----
including the date of issuance of such Letter of Credit (i) in the case of
a Letter of Credit which expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of Credit
which is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated, such fee to be non-
refundable and to be paid in arrears quarterly, on each Quarterly Date (or
such minimum $500 per annum fee to be paid on the date of issuance of the
--- -----
-39-
applicable Letter of Credit), and on the earlier of the Revolving Credit
Commitment Termination Date or the date of the termination of the Revolving
Credit Commitments or the date of such termination, expiration or the
Business Day subsequent to notice of a drawing. The Issuing Lender shall
pay to Administrative Agent for account of each Revolving Credit Lender
(other than the Issuing Lender), from time to time at reasonable intervals
(but in any event at least quarterly), but only to the extent actually
received from Borrower, an amount equal to such Lender's Revolving Credit
Commitment Percentage of all letter of credit commissions referred to in
the first sentence of this clause (g). In addition, Borrower shall pay to
Administrative Agent for account of the Issuing Lender only in respect of
each Letter of Credit a letter of credit issuance fee in an amount equal to
0.25% per annum multiplied by the original face amount from the issue date
--- -----
through the expiry date of such Letter of Credit (but in no event less than
$500 per Letter of Credit), such amount to be payable quarterly in arrears
on each Quarterly Date, plus all charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance, amendment or transfer of each
Letter of Credit and drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the
Issuing Lender shall deliver (through Administrative Agent) to each
Revolving Credit Lender and Borrower a notice describing the aggregate
amount of all Letters of Credit outstanding at the end of such month. Upon
the request of any Revolving Credit Lender from time to time, the Issuing
Lender shall deliver any other information reasonably requested by such
Lender with respect to each Letter of Credit then outstanding.
(i) To the extent that any Revolving Credit Lender fails to pay
an amount required to be paid pursuant to clause (e) or (f) of this Section
2.03 on the due date therefor, such Lender shall pay interest to the
Issuing Lender (through Administrative Agent) on such amount from and
including such due date to but excluding the date such payment is made (i)
during the period from and including such due date to but excluding the
date three Business Days thereafter, at a rate per annum equal to the
--- -----
Federal Funds Rate (as in effect from time to time) and (ii) thereafter, at
a rate per annum equal to the post-default rate (as in effect from time to
--- -----
time) pursuant to Section 3.02(b).
(j) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder that would extend the expiry
date or increase the face amount thereof shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (x) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (y) each
Revolving Credit Lender shall have consented thereto.
(k) Notwithstanding the foregoing, the Issuing Lender shall not
be under any obligation to issue any Letter of Credit if at the time of
such issuance, any order, judgment or decree of any Governmental Authority
or arbitrator shall purport by its terms to enjoin or restrain the Issuing
Lender from issuing such Letter of Credit or any requirement
-40-
of law applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental Authority
shall prohibit, or request that the Issuing Lender refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to such
Letter of Credit any restriction or reserve or capital requirement (for
which the Issuing Lender is not otherwise compensated) not in effect on the
date hereof. At any time that the Issuing Lender shall not be under any
obligation to issue Letters of Credit pursuant to this paragraph (k), the
Issuing Lender may be replaced by Borrower with another Lender reasonably
acceptable to Administrative Agent upon notice to the Issuing Lender and
Administrative Agent. Upon any such replacement, Administrative Agent shall
notify the Lenders of any such replacement of the Issuing Lender and the
replacement Issuing Lender shall agree to be bound by the applicable
provisions of this Agreement. At the time any such replacement shall become
effective, Borrower shall pay all unpaid fees accrued for the account of
the replaced Issuing Lender pursuant to Section 2.03(g). From and after the
effective date of any such replacement, (i) the successor Issuing Lender
shall have all the rights and obligations of the Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term "Issuing Lender" shall be deemed to
refer to such successor or to any previous Issuing Lender, or to such
successor and all previous Issuing Lenders, as the context shall require.
After the replacement of an Issuing Lender hereunder, the replaced Issuing
Lender shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Lender under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but
shall not be required to issue additional Letters of Credit.
The obligations of Borrower under this Agreement and any Letter of Credit
Document to reimburse the Issuing Lender for a drawing under a Letter of Credit,
and to repay any drawing under a Letter of Credit converted into Revolving
Credit Loans, shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement and each such other Letter of
Credit Document under all circumstances, including the following: (i) any lack
of validity or enforceability of this Agreement or any Letter of Credit
Document; (ii) the existence of any claim, setoff, defense or other right that
Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
Letter of Credit Documents or any unrelated transaction; (iii) any draft,
demand, certificate or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit; or any defense based upon the failure of
any drawing under a Letter of Credit to conform to the terms of the Letter of
Credit or any non-application or misapplication by the beneficiary of the
proceeds of such drawing; or (iv) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Borrower or a Guarantor; provided, however, that Borrower shall
-------- -------
not be obligated to reimburse the Issuing Lender for any wrongful payment
determined by a court of competent jurisdiction to have been made by the Issuing
Lender as a result of acts or omissions constituting willful misconduct or gross
-41-
negligence on the part of the Issuing Lender. To the extent that any provision
of any Letter of Credit Document is inconsistent with the provisions of this
Section 2.03, the provisions of this Section 2.03 shall control.
2.04. Termination and Reductions of Commitments. (a) (i) The
-----------------------------------------
aggregate amount of the Revolving Credit Commitments shall be automatically and
permanently reduced to zero on the Revolving Credit Commitment Termination Date.
The aggregate amount of Revolving Credit Commitments shall be permanently
reduced on the date any required prepayments described in Section 2.10(a) are
required to be made in the amount specified in Section 2.10(b)(ii).
(ii) The aggregate amount of the Term Loan Commitments shall be
automatically and permanently reduced to zero immediately after the making of
the Term Loans on the Amendment and Restatement Date.
(b) Borrower shall have the right at any time or from time to time (i)
so long as no Revolving Credit Loans or Letter of Credit Liabilities will be
outstanding as of the date specified for termination, to terminate the Revolving
Credit Commitments, and (ii) to reduce the aggregate amount of the Unutilized
Revolving Credit Commitments of all the Revolving Credit Lenders; provided,
--------
however, that (x) Borrower shall give notice of each such termination or
-------
reduction as provided in Section 4.05, and (y) each partial reduction shall be
in an aggregate amount at least equal to $5.0 million (or a larger multiple of $
1.0 million) or, if less, the remaining Revolving Credit Commitments.
(c) The Commitments once terminated or reduced may not be reinstated.
2.05. Fees. (a) Borrower shall pay to Administrative Agent for the
----
account of each Revolving Credit Lender a commitment fee on the daily average
amount of such Lender's Unutilized Revolving Credit Commitment, for the period
from and including the Closing Date to but not including the earlier of the date
such Revolving Credit Commitment is terminated and the Revolving Credit
Commitment Termination Date, at a rate per annum equal to the Applicable
--- -----
Revolving Credit Fee Percentage. Any accrued commitment fee under this Section
2.05(a) shall be payable in arrears on each Quarterly Date and on the earlier of
the date the Revolving Credit Commitments are terminated and the Revolving
Credit Commitment Termination Date.
(b) Borrower shall pay to Administrative Agent for its own account a
nonrefundable administrative fee pursuant to the terms of the Fee Letter.
2.06. Lending Offices. The Loans of each Type made by each Lender
---------------
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.07. Several Obligations of Lenders. The failure of any Lender to
------------------------------
make any Loan to be made by it on the date specified therefor shall not relieve
any other Lender of its obligation to make its Loan on such date, but neither
any Lender nor Administrative Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender, and (except as
otherwise provided in Section 4.06) no Lender shall have any obligation to
Administrative Agent or
-42-
any other Lender for the failure by such Lender to make any Loan required to be
made by such Lender.
2.08. Notes: Register. (a) (i) At the request of any Revolving Credit
---------------
Lender, the Revolving Credit Loans made by such Revolving Credit Lender shall be
evidenced by one or more promissory notes of Borrower, substantially in the form
of Exhibit A-1, dated the Closing Date, payable to such Lender and otherwise
-----------
duly completed.
(ii) At the request of any Lender, the Tranche A Term Loans made by
such Tranche A Term Loan Lender shall be evidenced by one or more promissory
notes of Borrower, substantially in the form of Exhibit A-2 dated the Closing
-----------
Date, payable to such Lender and otherwise duly completed.
(iii) At the request of any Lender, the Tranche B Term Loans made
by such Tranche B Term Loan Lender shall be evidenced by one or more promissory
notes of Borrower, substantially in the form of Exhibit A-3 dated the Closing
-----------
Date, payable to such Lender and otherwise duly completed.
(b) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan of each Class made by each Lender to
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of any Note
evidencing the Loans of such Class held by it, endorsed by such Lender on the
schedule attached to such Note or any continuation thereof; provided, however,
-------- -------
that the failure of such Lender to make any such recordation or endorsement
shall not affect the obligations of Borrower to make a payment when due of any
amount owing hereunder or under such Note.
(c) Borrower hereby designates Administrative Agent to serve as its
agent, solely for purposes of this Section 2.08, to maintain a register (the
"Register") on which it will record the name and address of each Lender, the
---------
Commitment from time to time of each of the Lenders, the principal amount of the
Loans made by each of the Lenders and each repayment in respect of the principal
amount of the Loans of each Lender. Failure to make any such recordation or any
error in such recordation shall not affect Borrower's obligations in respect of
such Loans. The entries in the Register shall be prima facie evidence of
Borrower's Loans, and Borrower, Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of a Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Credit Documents, notwithstanding any notice to the
contrary. The Register shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
2.09. Optional Prepayments and Conversions or Continuations of Loans.
--------------------------------------------------------------
Subject to Section 4.04, Borrower shall have the right to prepay Loans, or to
Convert Loans of one Type into Loans of another Type or to Continue Loans of one
Type as Loans of the same Type, at any time or from time to time to be applied
as specified by Borrower; provided, however, that: (a) Borrower shall give
-------- -------
Administrative Agent notice of each such prepayment, Conversion or Continuation
as provided in Section 4.05 (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable hereunder);
(b) if LIBOR Loans are prepaid or Converted other
-43-
than on the last day of an Interest Period for such Loans, Borrower shall at
such time pay all expenses and costs required by Section 5.05; and (c)
prepayments of the Term Loans pursuant to this Section 2.09 shall be applied pro
---
rata. among the Term Loan Tranches based upon the remaining unpaid amounts
----
thereof and, as to each such Term Loan Tranche, the amount to be applied thereto
shall be applied pro rata among the remaining Amortization Payments based upon
--- ----
the remaining unpaid amounts thereof. Each notice of Conversion or Continuation
shall be substantially in the form of
Exhibit 1.
---------
Notwithstanding the foregoing, any Tranche B Term Loan Lender may,
with respect to any voluntary prepayment to the extent that Tranche A Term Loans
are outstanding (after giving effect to the application of such voluntary
prepayment to the Tranche A Term Loans), elect not to have all or any part of
any voluntary prepayments applied to such Lender's Tranche B Term Loans, in
which case the aggregate amount of such prepayment so declined shall be applied
to the remaining Amortization Payments with respect to the Tranche A Term Loans
pro rata. If no Tranche A Term Loans are outstanding, such election to decline
--- ----
prepayments shall not be available.
Notwithstanding the foregoing, and without limiting the rights and
remedies of the Lenders under Section 10, in the event that any Event of Default
shall have occurred and be continuing, Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of Borrower to Convert
any Loan into a LIBOR Loan, or to Continue any Loan as a LIBOR Loan, in which
event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) or Continued, as the case may be, as ABR Loans.
2.10. Mandatory Prepayments. (a) Borrower shall prepay the Term Loans
---------------------
as follows (each such prepayment to be effected in each case in the manner,
order and to the extent specified in subsection (b) below of this Section 2.10):
(i) Casualty Events. On the date on which Borrower or any
---------------
Subsidiary receives any Net Available Proceeds from any Casualty Event, in
an aggregate principal amount equal to 100% of such Net Available Proceeds;
provided, however, that
-------- -------
(w) so long as no Default or Event of Default then exists,
the Net Available Proceeds thereof shall not be required to be so
applied on such date to the extent that (1) in the event that such Net
Available Proceeds are less than or equal to $5.0 million, Borrower
has delivered an Officers' Certificate to Administrative Agent on or
prior to such date stating that such proceeds shall be used or (11) in
the event that such Net Available Proceeds exceed $5.0 million
Administrative Agent has elected by notice to Borrower on or prior to
such date to require such proceeds to be used to (A) in the case of
Mortgaged Real Property, repair, replace or restore any Property in
respect of which such Net Available Proceeds were paid or (B) in the
case of Property other than Mortgaged Real Property, fund the
substitution of other Property used or usable in the business of
Borrower and the Subsidiaries or repair, replace or restore such
Property i respect of which such Casualty Event has occurred, in each
case within 360 days following the date of the receipt of such Net
Available Proceeds,
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(x) all such Net Available Proceeds in excess of $ 150,000
individually or $ 1.5 million in the aggregate shall be held in the
Collateral Account and released therefrom only in accordance with the
terms of the Security Agreement, and
(y) if all or any portion of such Net Available Proceeds not
required to be applied to the prepayment of Term Loans pursuant to the
preceding proviso (w) is not so used within 360 days after the date of
the receipt of such Net Available Proceeds, such remaining portion
shall be applied on the last day of such period as specified in
Section 2.10(b).
(ii) Equity Issuance. Upon any Equity Issuance after the Closing
---------------
Date, in an aggregate principal amount equal to 50% of the Net Available
Proceeds of such Equity Issuance; provided, however, no such prepayment
-------- -------
shall be required so long as the Leverage Ratio at the end of the most
recently ended fiscal quarter is less than 3.0:1.0.
(iii) Debt Issuance. Upon any Debt Issuance after the Closing
-------------
Date, in an aggregate principal amount equal to 100% of the Net Available
Proceeds of such Debt Issuance (other than any Debt Issuance consisting of
Subordinated Indebtedness, to the extent the proceeds thereof are used to
refinance Indebtedness incurred pursuant to the Bridge Loan Agreement).
(iv) Disposition Events. Upon the date of receipt of any Net
------------------
Available Proceeds from any Disposition Event, in an aggregate principal
amount equal to 100% of the Net Available Proceeds from such Disposition
Event; provided, however, that
-------- -------
(w) up to $25.0 million in the aggregate in each fiscal year
(or $50.0 million if the Leverage Ratio at the end of the most
recently ended fiscal quarter shall be less than 3.0:1.0) of Net
Available Proceeds from any Disposition (including any Disposition of
any Assets held for Sale to the extent not utilized as provided in
clause(x) below) effected pursuant to Section 9.06(g) shall not be
required to be applied as provided herein on such date if and to the
extent that (1) no Default or Event of Default then exists or would
arise therefrom, and (2) Borrower delivers an Officers' Certificate to
Administrative Agent on or prior to such date stating that such Net
Available Proceeds shall be reinvested in capital assets of Borrower
or any Subsidiary in each case within 360 days following the date of
such Disposition Event (which certificate shall set forth the
estimates of the proceeds to be so expended),
(x) up to $1 0.0 million in the aggregate from the
Disposition of Assets Held for Sale shall not be required to be
applied as provided herein so long as such amounts are applied to
repay a like amount under the Bridge Loan Agreement on or prior to
March 31, 1999,
(y) all such Net Available Proceeds in excess of $150,000
individually and $1.5 million in the aggregate shall be held in the
Collateral Account
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and released therefrom only in accordance with the terms of the
Security Agreement, and
(z) if all or any portion of such Net Available Proceeds
which are permitted to be applied to reinvestment pursuant to the
terms of Section 2.10(a)(iv)(w) is not so used within such 360 day
period, such remaining portion shall be applied on the last day of
such period (or such earlier date as Borrower determines not to
reinvest any portion thereof) as specified in Section 2.10(b) (it
being understood that the foregoing shall in no way affect the
obligation of any Company to obtain the consent of the Majority
Lenders if required pursuant to this Agreement to effect any
Disposition).
(v) Excess Cash Flow. Not later than 95 days after the end of
----------------
each fiscal year of Borrower commencing with the fiscal year ended December
31, 1998, in an aggregate principal amount equal to (A) 75% of Excess Cash
Flow for such fiscal year when the Leverage Ratio at the end of such fiscal
year is greater than or equal to 3.0: 1.0 (as evidenced in an Officers'
Certificate delivered to Administrative Agent) and (B) 50% of Excess Cash
Flow for such fiscal year when the Leverage Ratio at the end of such fiscal
year is less than 3.0: 1.0 (as evidenced in an Officers' Certificate
delivered to Administrative Agent).
(vi) Other Required Prepayments. If the terms of any agreement,
--------------------------
instrument or indenture pursuant to which any Indebtedness pari passu with
---- -----
or junior in right of payment to the Loans is outstanding (or pursuant to
which such Indebtedness is guaranteed) require prepayment of such
Indebtedness out of the proceeds of any Disposition or otherwise unless
such proceeds are used to prepay other Indebtedness, then, to the extent
not otherwise required by this Section 2.10(a), the Loans shall be repaid
in an amount equal to the amount that would be required to be prepaid at
such time as and upon such terms so that such other Indebtedness will not
be required to be prepaid pursuant to the terms of the agreement, indenture
or instrument or guarantee governing such other Indebtedness.
(b) Application. The amount of any required prepayments described in
-----------
Section 2.10(a) shall be applied as follows:
(i) first, the amount of the required prepayment shall be applied
-----
to the reduction of Amortization Payments on the Term Loans required by
Section 3.01(b) pro rata among the Term Loan Tranches based upon the
--- ----
remaining unpaid amounts thereof and, as to Tranche A Term Loans, the
amount to be applied thereto shall be applied pro rata to the remaining
--- ----
Amortization Payments thereunder based on the remaining unpaid amounts
thereof (provided that any prepayments required pursuant to Section
2.10(a)(iv) from the Triton Disposition shall be applied to the Tranche A
Term Loans in inverse order of maturity to the remaining Amortization
Payments thereunder) and as to Tranche B Term Loans, the amount to be
applied thereto shall be applied in inverse order of maturity to the
remaining Amortization Payments thereunder. Notwithstanding the foregoing,
(x) any holder of Tranche B Term Loans may, with respect to any mandatory
prepayment, to the extent that Tranche A Tenn Loans are outstanding (after
giving effect to such required prepayment to the Tranche
-46-
A Term Loans), elect not to have all or any amount of any such required
prepayments applied to such holder's Tranche B Term Loans, as the case may
be, in which case the aggregate amount so declined shall be applied to the
remaining Amortization Payments in respect of the Tranche A Term Loans pro
---
rata and (y) if no Tranche A Term Loans are outstanding (after giving
----
effect to such required prepayment), such election to decline prepayments
shall not be available; and
(ii) second, after such time as no Term Loans remain outstanding,
------
Revolving Credit Commitments shall be permanently reduced (at the same time
that the prepayment of the Term Loans would have been made and assuming an
unlimited amount thereof then outstanding) pro rata in an amount equal to
--- ----
the amount of any such required prepayment that would have been applied to
the Term Loans (assuming an unlimited amount thereof then outstanding) and
to the extent that, after giving effect to such reduction, the aggregate
principal amount of Revolving Credit Loans, plus the aggregate amount of
----
all Letter of Credit Liabilities would exceed the Revolving Credit
Commitments, Borrower shall, first prepay outstanding Revolving Credit
-----
Loans, and second, provide cover for Letter of Credit Liabilities as
------
specified in Section 2.10(d), in an aggregate amount equal to such excess.
Notwithstanding the foregoing, if the amount of any prepayment of
Loans required under this Section 2.10 shall be in excess of the amount of the
ABR Loans at the time outstanding, only the portion of the amount of such
prepayment as is equal to the amount of such outstanding ABR Loans shall be
immediately prepaid and, at the election of Borrower, the balance of such
required prepayment shall be either (i) deposited in the Collateral Account and
applied to the prepayment of LIBOR Loans on the last day of the then next-
expiring Interest Period for LIBOR Loans or (ii) prepaid immediately, together
with any amounts owing to the Lenders under Section 5.05. Notwithstanding any
such deposit in the Collateral Account, interest shall continue to accrue on
such Loans until prepayment.
(c) Revolving Credit Extension Reductions. Until the Revolving Credit
-------------------------------------
Commitment Termination Date, Borrower shall from time to time immediately prepay
the Revolving Credit Loans (and/or provide cover for Letter of Credit
Liabilities as specified in Section 2.10(d)) in such amounts as shall be
necessary so that at all times the aggregate outstanding amount of the Revolving
Credit Loans, plus the aggregate outstanding Letter of Credit Liabilities shall
----
not exceed the Revolving Credit Commitments as in effect at such time, such
amount to be applied, first, to Revolving Credit Loans outstanding and, second,
----- ------
as cover for Letter of Credit Liabilities outstanding as specified in Section
2.10(d).
(d) Cover for Letter of Credit Liabilities. In the event that Borrower
--------------------------------------
shall be required pursuant to this Section 2.10 to provide cover for Letter of
Credit Liabilities, Borrower shall effect the same by paying to Administrative
Agent immediately available funds in an amount equal to the required amount,
which funds shall be retained by Administrative Agent in the Collateral Account
(as provided in the Security Agreement as collateral security in the first
instance for the Letter of Credit Liabilities) until such time as all Letters of
Credit shall have been terminated and all of the Letter of Credit Liabilities
paid in full.
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2.11. Replacement of Lenders. Borrower shall have the right, if no
----------------------
Default then exists, to replace any Lender (the "Replaced Lender") with one or
---------------
more other Eligible Persons reasonably acceptable to Arranger (collectively, the
"Replacement Lender") if (x) such Lender is charging Borrower increased costs
------------------
pursuant to Section 5.01 or 5.06 in excess of those being charged generally by
the other Lenders or such Lender becomes incapable of making LIBOR Loans as
provided in Section 5.03 and/or (y) as provided in Section 12.04(ii), such
Lender refuses to consent to certain proposed amendments, waivers or
modifications with respect to this Agreement; provided, however, that (i) at the
-------- -------
time of any replacement pursuant to this Section 2.11, the Replacement Lender
shall enter into one or more assignment agreements (and with all fees payable
pursuant to said Section 12.06 to be paid by the Replacement Lender) pursuant to
which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and in each case Letter of Credit Interests by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender, an amount equal to the sum of (A) the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender, (B) all Reimbursement
Obligations owing to such Replaced Lender, together with all then unpaid
interest with respect thereto at such time, and (C) all accrued, but theretofore
unpaid, fees owing to the Replaced Lender pursuant to Section 2.05, and (y) the
Issuing Lender an amount equal to such Replaced Lender's Revolving Credit
Commitment Percentage of any Reimbursement Obligations (which at such time
remains a Reimbursement Obligation) to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations of Borrower
owing to the Replaced Lender (other than those specifically described in clause
(i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid, but including any amounts which would be paid to a
Lender pursuant to Section 5.05 if Borrower were prepaying a LIBOR Loan) shall
be paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective assignment agreement, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of Notes executed by
Borrower, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder and be released of
all its obligations as a Lender, except with respect to indemnification
provisions applicable to the Replaced Lender under this Agreement, which shall
survive as to such Replaced Lender.
Section 3. Payments of principal and Interest.
----------------------------------
3.01. Repayment of Loans.
------------------
(a) Revolving Credit. Borrower hereby promises to pay to
----------------
Administrative Agent for the account of each Lender the entire outstanding
principal amount of such Lender's Revolving Credit Loans, and each Revolving
Credit Loan shall mature, on the Revolving Credit Commitment Termination Date.
(b) Term Loan. (1) Tranche A Term Loans. Borrower hereby promises to
--------- --------------------
pay to Administrative Agent for the account of the Tranche A Term Loan Lenders,
in repayment of the principal of the Tranche A Term Loans, the amounts set forth
on Schedule 3.01(b) on the dates set forth on Schedule 3.01(b) (subject to
---------------- ----------------
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
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(2) Tranche B Term Loans. Borrower hereby promises to pay to
--------------------
Administrative Agent, for the account of the Tranche B Term Loan Lenders, in
repayment of the principal of the Tranche B Term Loans, the amounts set forth in
Schedule 3.01(b) on the dates set forth in Schedule 3.01(b) (subject to
---------------- ----------------
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
3.02. Interest. (a) Borrower hereby promises to pay to Administrative
--------
Agent for the account of each Lender interest on the unpaid principal amount of
each Loan made by such Lender for the period from and including the date of such
Loan to but excluding the date such Loan shall be paid in full at the following
rates per annum:
(i) during such periods as such Loan is an ABR Loan, the
Alternate Base Rate (as in effect from time to time), plus the Applicable
----
Margin and
(ii) during such periods as such Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Loan for such
Interest Period, plus the Applicable Margin.
----
(b) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and other overdue amounts owed by any Obligor
under the Credit Documents shall bear interest at a rate per annum equal to (x)
--- -----
in the case of principal of any Loans, the rate which is 2% in excess of the
rate then borne by such Loans, (y) in the case of interest, the rate which is 2%
in excess of the rate otherwise applicable to ABR Loans which are Revolving
Credit Loans from time to time and (z) in the case of such other amounts, the
rate which is 2% in excess of the rate otherwise applicable to ABR Loans which
are Revolving Credit Loans from time to time. Interest which accrues under this
paragraph shall be payable on demand.
(c) Accrued interest on each Loan shall be payable (i) in the case of
an ABR Loan, quarterly on the Quarterly Dates, (ii) in the case of a LIBOR Loan,
on the last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period and (iii) in the case of any LIBOR Loan, upon the payment
or prepayment thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid or Converted), except that
interest payable at the rate set forth in Section 3.02(b) shall be payable from
time to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to Borrower.
Section 4. Payments: Pro Rata Treatment: Computations Etc.
-----------------------------------------------
4.01. Payments. (a) Except to the extent otherwise provided herein,
--------
all payments of principal, interest, Reimbursement Obligations and other amounts
to be made by Borrower under this Agreement and the Notes, and, except to the
extent otherwise provided therein, all payments to be made by the Obligors under
any other Credit Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to Administrative Agent at
its account at the Principal Office, not later than 1:00 p.m. New York City time
on the date on which such
-49-
payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day).
(b) Borrower shall, at the time of making each payment under this
Agreement or any Note for the account of any Lender, specify to Administrative
Agent (which shall so notify the intended recipient(s) thereof) the Loans,
Reimbursement Obligations or other amounts payable by Borrower hereunder to
which such payment is to be applied (and in the event that Borrower fails to so
specify, or if an Event of Default has occurred and is continuing,
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Majority Lenders, subject to Section 4.02, may
determine to be appropriate).
(c) Except to the extent otherwise provided in the second sentence of
Section 2.03(g), each payment received by Administrative Agent under this
Agreement or any Note for the account of any Lender shall be paid by
Administrative Agent to such Lender, in immediately available funds, (x) if the
payment was actually received by Administrative Agent prior to 1:00 p.m. (New
York City time) on any day, on such day and (y) if the payment was actually
received by Administrative Agent after 1:00 p.m. (New York City time) on any
day, on the following Business Day (it being understood that to the extent that
any such payment is not made in full by Administrative Agent, Administrative
Agent shall pay to such Lender, upon demand, interest at the Federal Funds Rate
from the date such amount was required to be paid to such Lender pursuant to the
foregoing clauses until the date Administrative Agent pays such Lender the
amount).
(d) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02. Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.05 in respect of Commitments of a particular Class shall be
made for account of the relevant Lenders, and each termination or reduction of
the amount of the Commitments of a particular Class under Section 2.04 shall be
applied to the respective Commitments of such Class of the relevant Lenders, pro
---
rata according to the amounts of their respective Commitments of such Class; (b)
----
except as otherwise provided in Section 5.04, LIBOR Loans of any Class having
the same Interest Period shall be allocated pro rata among the relevant Lenders
--- ----
according to the amounts of their respective Revolving Credit and Term Loan
Commitments (in the case of the making of Loans) or their respective Revolving
Credit and Term Loans (in the case of Conversions and Continuations of Loans);
(c) each payment or prepayment of principal of Revolving Credit Loans or Term
Loans by Borrower shall be made for account of the relevant Lenders pro rata in
--- ----
accordance with the respective unpaid outstanding principal amounts of the Loans
of such Class held by them; and (d) each payment of interest on Revolving Credit
Loans and Term Loans by Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the amounts of interest on such Loans then
--- ----
due and payable to the respective Lenders.
-50-
4.03. Computations. Interest on LIBOR Loans and commitment fee and
------------
letter of credit fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable and interest on ABR Loans and
Reimbursement Obligations shall be computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
Notwithstanding the foregoing, for each day that the Alternate Base Rate is
calculated by reference to the Federal Funds Rate, interest on ABR Loans and
Reimbursement Obligations shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but excluding the last day),
4.04. Minimum Amounts. Except for mandatory prepayments made pursuant
---------------
to Section 2.10 and Conversions or prepayments made pursuant to Section 5.04,
each borrowing, Conversion and prepayment of principal of Loans shall be in an
amount at least equal to $1.0 million with respect to ABR Loans and $1.0 million
with respect to LIBOR Loans and in multiples of $100,000 in excess thereof
(borrowings, Conversions or prepayments of or into Loans of different Types or,
in the case of LIBOR Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period). Anything in
this Agreement to the contrary notwithstanding, the aggregate principal amount
of LIBOR Loans having the same Interest Period shall be in an amount at least
equal to $1.0 million and in multiples of $100,000 in excess thereof and, if any
LIBOR Loans or portions thereof would otherwise be in a lesser principal amount
for any period, such Loans or portions, as the case may be, shall be ABR Loans
during such period.
4.05. Certain Notices. Notices by Borrower to Administrative Agent of
---------------
terminations or reductions of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans and of Classes of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable and
shall be effective only if received by Administrative Agent not later than 11:00
a.m. New York City time on the number of Business Days prior to the date of the
relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified in the table
below,
NOTICE PERIODS
Notice Number of Business Days Prior
--------------------------------------------------------- -----------------------------
Termination or reduction of Commitments 2
Borrowing or optional prepayment of, or Conversions
into, ABR Loans 1
Borrowing or optional prepayment of, Conversions
into, Continuations as, or duration of Interest Periods
for, LIBOR Loans 3
-51-
Each such notice of termination or reduction shall specify the amount
and the Class of the Commitments to be terminated or reduced. Each such notice
of borrowing, Conversion, Continuation or prepayment shall specify the Class of
Loans to be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.04) and Type of each Loan to be borrowed, Converted, Continued or
prepaid and the date of borrowing, Conversion, Continuation or prepayment (which
shall be a Business Day). Each such notice of the duration of an Interest Period
shall specify the Loans to which such Interest Period is to relate.
Administrative Agent shall promptly notify the Lenders of the contents of each
such notice. In the event that Borrower fails to select the Type of Loan, or the
duration of any Interest Period for any LIBOR Loan, within the time period and
otherwise as provided in this Section 4.05, such Loan (if outstanding as a LIBOR
Loan) will be automatically Converted into a LIBOR Loan with a one month
Interest Period on the last day of the then current Interest Period for such
Loan or (if outstanding as an ABR Loan) will remain as, or (if not then
outstanding) will be made as, an ABR Loan.
4.06. Non-Receipt of Funds by Administrative Age. Unless
------------------------------------------
Administrative Agent shall have received written notice from a Lender or
Borrower (the "Payor" prior to the date on which the Payor is to make payment to
-----
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or a payment to Administrative Agent for the
account of one or more of the Lenders hereunder (such payment being herein
called the "Required Payment"), which notice shall be effective upon receipt,
----------------
that the Payor does not intend to make the Required Payment to Administrative
Agent, Administrative Agent may assume that the Required Payment has been made
and may, in reliance upon such assumption (but shall not be required to), make
the amount thereof available to the intended recipient(s) on such date; and, if
the Payor has not in fact made the Required Payment to Administrative Agent, the
recipient(s) of such payment shall, on demand, repay to Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date (the "Advance Date") such amount was so
------------
made available by Administrative Agent until the date Administrative Agent
recovers such amount at a rate per annum equal to the Federal Funds Rate for
--- -----
such day and, if such recipient(s) shall fail promptly to make such payment,
Administrative Agent shall be entitled to recover such amount, on demand, from
the Payor, together with interest as aforesaid; provided, however, that if
-------- -------
neither the recipient(s) nor the Payor shall return the Required Payment to
Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows (without double
recovery):
(i) if the Required Payment shall represent a payment to be made
by Borrower to the Lenders, Borrower and the recipient(s) shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment at the rate set forth in Section 3.02(b) (without
duplication of the obligation of Borrower under Section 3.02 to pay
interest on the Required Payment at the rate set forth in Section 3.02(b)),
it being understood that the return by the recipient(s) of the Required
Payment to Administrative Agent shall not limit such obligation of Borrower
under Section 3.02 to pay interest at the rate set forth in Section 3.02(b)
in respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan
to be made by the Lenders to Borrower, the Payor and Borrower shall each be
obligated retroactively to
-52-
the Advance Date to pay interest in respect of the Required Payment
pursuant to Section 3.02, it being understood that the return by Borrower
of the Required Payment to Administrative Agent shall not limit any claim
Borrower may have against the Payor in respect of such Required Payment.
4.07. Right of Setoff, Sharing of Payments: Etc. (a) If any Event of
------------------------------------------
Default shall have occurred and be continuing, each Obligor agrees that, in
addition to (and without limitation of) any right of setoff, banker's lien or
counterclaim a Lender may otherwise have, each Lender shall be entitled, at its
option (to the fullest extent permitted by law), to set off and apply any
deposit (general or special, time or demand, provisional or final), or other
indebtedness, held by it for the credit or account of such Obligor at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, Reimbursement Obligations or any other
amount payable to such Lender hereunder that is not paid when due (regardless of
whether such deposit or other indebtedness is then due to such Obligor), in
which case it shall promptly notify such Obligor and Administrative Agent
thereof, provided, however, that such Lender's failure to give such notice shall
-------- -------
not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other than
pursuant to Section 5) any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on, the Loans, Reimbursement Obligations or fees, of a
sum which with respect to the related sum or sums received by other Lenders is
in a greater proportion than the total of such amounts then owed and due to such
Lender bears to the total of such amounts then owed and due to all of the
Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Obligor to such
Lenders in such amount as shall result in a proportional participation by all of
the Lenders in such amount; provided, however, that if all or any portion of
-------- -------
such excess amount is thereafter recovered from such Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest. Borrower consents to the foregoing arrangements.
(c) Borrower agrees that any Lender so purchasing such a participation
may exercise all rights of setoff, banker's lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Loans or other amounts (as the case may be) owing to such Lender in
the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other Indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
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Section 5. Yield Protection. Etc.
----------------------
5.01. Additional Costs. (a) If the adoption of, or any change in, any
----------------
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority or the NAIC made
subsequent to the date hereof
(i) shall subject any Lender or Issuing Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note, any Letter of
Credit or any Lender's participation therein, any Letter of Credit Document
or any LIBOR Loan made by it or change the basis of taxation of payments to
such Lender in respect thereof by any Governmental Authority (except for
taxes covered by Section 5.06 and changes in the rate of tax on the overall
net income of such Lender or its Applicable Lending Office, or any
affiliate thereof or franchise tax by any Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender or Issuing Lender which is not otherwise included in
the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender or Issuing Lender any other
condition (excluding taxes);
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Lender, by an amount which such Lender or Issuing Lender deems to be
material, of making, converting into, continuing or maintaining LIBOR Loans or
issuing or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof then, in any such case, Borrower shall promptly pay
such Lender or Issuing Lender, upon its demand, any additional amounts necessary
to compensate such Lender or Issuing Lender for such increased cost or reduced
amount receivable. If any Lender or Issuing Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify
Borrower, through Administrative Agent, of the event by reason of which it has
become so entitled. A certificate as to any additional amounts setting forth the
calculation of such additional amounts pursuant to this Section 5.01 submitted
by such Lender or Issuing Lender, through Administrative Agent, to Borrower
shall be conclusive in the absence of clearly demonstrable error. Without
limiting the survival of any other covenant hereunder, this Section 5.01 shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder.
(b) In the event that any Lender or Issuing Lender shall have
determined that the adoption of any law, rule, regulation or guideline regarding
capital adequacy (or any change therein or in the interpretation or application
thereof) or compliance by any Lender or Issuing Lender or any corporation
controlling such Lender or Issuing Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
central bank or Governmental Authority or the NAIC, in each case, made
subsequent to the date hereof including, without limitation, the
-54-
issuance of any final rule, regulation or guideline, does or shall have the
effect of reducing the rate of return on such Lender's or Issuing Lender's or
such corporation's capital as a consequence of its obligations hereunder or
under any Letter of Credit to a level below that which such Lender or Issuing
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or Issuing Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender or Issuing Lender to be material, then from time to time, after
submission by such Lender or Issuing Lender to Borrower (with a copy to
Administrative Agent) of a written request therefor, Borrower shall promptly pay
to such Lender or Issuing Lender such additional amount or amounts as will
compensate such Lender or Issuing Lender for such reduction.
5.02. Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of any LIBOR Base Rate for
any Interest Period:
(i) Administrative Agent determines, which determination shall be
conclusive, absent manifest error, that quotations of interest rates for
the relevant deposits referred to in the definition of "LIBOR Base Rate" in
Section 1.01 are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for LIBOR
Loans as provided herein; or
(ii) if the related Loans are Revolving Credit Loans, the
Majority Revolving Credit Lenders or, if the related Loans are Tranche A
Term Loans, the Majority Tranche A Term Loan Lenders or, if the related
Loans are Tranche B Term Loans, the Majority Tranche B Term Loan Lenders
determine, which determination shall be conclusive, that the relevant rates
of interest referred to in the definition of "LIBOR Base Rate" in Section
1.01 upon the basis of which the rate of interest for LIBOR Loans for such
Interest Period is to be determined are not likely adequate to cover the
cost to the applicable Lenders of making or maintaining LIBOR Loans for
such Interest Period, then Administrative Agent shall give Borrower and
each Lender prompt notice thereof, and so long as such condition remains in
effect, the affected Lenders shall be under no obligation to make
additional LIBOR Loans, to Continue LIBOR Loans or to Convert ABR Loans
into LIBOR Loans and Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding LIBOR Loans, either prepay such
Loans or Convert such Loans into ABR Loans in accordance with Section 2.09.
5.03. Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender or
Issuing Lender or its Applicable Lending Office to honor its obligation to make
or maintain LIBOR Loans or issue Letters of Credit hereunder (and, in the sole
opinion of such Lender or Issuing Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender or Issuing Lender), then such Lender or Issuing
Lender shall promptly notify Borrower thereof (with a copy to Administrative
Agent) and such Lender's or Issuing Lender's obligation to make or Continue, or
to Convert Loans of any other Type into, LIBOR Loans or issue Letters of Credit
shall be suspended until such time
-55-
as such Lender or Issuing Lender may again make and maintain LIBOR Loans or
issue Letters of Credit (in which case the provisions of Section 5.04 shall be
applicable).
5.04. Treatment of Affected Loans. If the obligation of any Lender to
---------------------------
make LIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR Loans shall
be suspended pursuant to Section 5.03, such Lender's LIBOR Loans shall be
automatically Converted into ABR Loans on the last day(s) of the then current
Interest Period(s) for such LIBOR Loans (or on such earlier date as such Lender
may specify to Borrower with a copy to Administrative Agent as is required by
law) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.03 which gave rise to such Conversion no
longer exist:
(i) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its ABR
Loans; and
(ii) all Loans which would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as ABR Loans and
all ABR Loans of such Lender which would otherwise be Converted into LIBOR
Loans shall remain as ABR Loans.
If such Lender gives notice to Borrower with a copy to Administrative Agent that
the circumstances specified in Section 5.03 which gave rise to the Conversion of
such Lender's LIBOR Loans pursuant to this Section 5.04 no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans are outstanding, such Lender's ABR Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding LIBOR Loans, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans
and by such Lender are held pro rata (as to principal amounts, Types and
--- ----
Interest Periods) in accordance with their respective Commitments.
5.05. Compensation. (a) Borrower agrees to indemnify each Lender and
------------
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (1) default by Borrower in payment when due
of the principal amount of or interest on any LIBOR Loan, (2) default by
Borrower in making a borrowing of, Conversion into or Continuation of LIBOR
Loans after Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (3) default by Borrower in making any
prepayment after Borrower has given a notice thereof in accordance with the
provisions of the Agreement, or (4) the making of a payment or a prepayment of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto, including in each case, any such loss (including loss of
margin) or expense arising from the reemployment of funds obtained by it or from
fees payable to terminate the deposits from which such funds were obtained.
(b) For the purpose of calculation of all amounts payable to a Lender
under this Section 5.05 each Lender shall be deemed to have actually funded its
relevant LIBOR Loan through the purchase of a deposit bearing interest at the
LIBOR Rate in an amount equal to the amount of the LIBOR Loan and having a
maturity comparable to the relevant Interest Period; provided, however, that
-------- -------
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each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this subsection. Any Lender requesting compensation pursuant to
this Section 5.05 will furnish to Administrative Agent and Borrower a
certificate setting forth the basis and amount of such request and such
certificate, absent manifest error, shall be conclusive. Without limiting the
survival of any other covenant hereunder, this covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
5.06. Net Payments. (a) All payments made by Borrower or any
------------
Guarantor hereunder or under any Note or any Guarantee will be made without
setoff, counterclaim or other defense. Except as provided in Section 5.06(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
Governmental Authority or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding, except as
provided in the second succeeding sentence, any tax imposed on or measured by
the net income or net profits of a Lender pursuant to the laws of the
jurisdiction in which it is organized or the jurisdiction in which the principal
office or Applicable Lending Office of such Lender is located or any
jurisdiction in which such Lender conducts business or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments
or other charges being referred to collectively as "Covered Taxes"). If any
-------------
Covered Taxes are so levied or imposed, Borrower and each Guarantor, as the case
may be, agrees to pay the full amount of such Covered Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement, the Guarantees or under any Note, after withholding or deduction for
or on account of any Covered Taxes, will not be less than the amount provided
for herein or in such Note. If any amounts are payable in respect of Covered
Taxes pursuant to the preceding sentence, Borrower and each Guarantor agrees on
a joint and several basis to reimburse each Lender, upon the written request of
such Lender, (i) for taxes imposed on or measured by the net income or net
profits of such Lender pursuant to the laws of the jurisdiction in which such
Lender is organized or in which the principal office or Applicable Lending
Office of such Lender is located or under the laws of any political subdivision
or taxing authority of any such jurisdiction by reason of the making of payments
in respect of Covered Taxes pursuant to this Section (including pursuant to this
sentence) and (ii) for any withholding of taxes as such Lender shall determine
are payable by, or withheld from, such Lender in respect of amounts paid in
respect of Covered Taxes to or on behalf of such Lender pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Lender pursuant to this sentence. Borrower and each Guarantor, as the case may
be, will furnish to Administrative Agent within 45 days after the date the
payment of any Covered Taxes is due pursuant to applicable law certified copies
of tax receipts evidencing such payment by Borrower or any Guarantor. Borrower
and the Guarantors agree to jointly and severally indemnify and hold harmless
each Lender, and reimburse such Lender upon its written request, for the amount
of any Covered Taxes so levied or imposed and paid by such Lender and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) (a "Non-U.S. Lender") agrees to
------
deliver to Borrower and
-57-
Administrative Agent on or prior to the Closing Date or, in the case of a Lender
that is an assignee or transferee of an interest under this Agreement pursuant
to Section 12.06 (unless the respective Lender was already a Lender hereunder
immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001 (or successor forms) certi to such
Lender's entitlement to a complete exemption from, or reduction in rate of,
United States withholding tax with respect to payments to be made under this
Agreement and under any Note (or, with respect to any assignee Lender, at least
as extensive as the assigning Lender), or (ii) if the Lender is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit K (any such certificate, a
---------
"Section 5.06 Certificate") and (y) two accurate and complete original signed
-------------------------
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Lender's entitlement to a complete exemption from, or reduction in rate of,
United States withholding tax with respect to payments to be made under this
Agreement and under any Note (or, with respect to any assignee Lender, at least
as extensive as the assigning Lender). In addition, each Lender agrees that from
time to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to Borrower and Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001, or Form W-8 and a Section 5.06 Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or it shall immediately notify Borrower and Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such form or certificate pursuant to this
Section 5.06(b). Notwithstanding the foregoing, no Lender shall be required to
deliver any such form or certificate if a change in treaty, law or regulation
has occurred prior to the date on which such delivery would otherwise be
required that renders any such form or certificate inapplicable or would prevent
the Lender from duly completing and delivering any such form or certificate with
respect to it and such Lender so advises Borrower. Borrower shall not be
required to indemnify any Non-U.S. Lender, or to pay any additional amounts to
any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to
paragraph (a) above to the extent that (i) the obligation to withhold amounts
with respect to U.S. Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement; provided however that this clause (i)
----------------
shall not apply to the extent that (x) the indemnity payments or additional
amounts any Lender would be entitled to receive (without regard to this clause
(i)) do not exceed the indemnity payments or additional amounts that the Person
making the assignment or transfer to such Lender would have been entitled to
receive in the absence of such assignment or transfer, or (y) such assignment or
transfer had been requested by Borrower, or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of this Section 5.06(b). Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 5.06 and except as set forth in Section 12.06(b), Borrower agrees
to pay additional amounts and to indemnify each Lender in the manner set forth
in Section 5.06(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of
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any changes after the Closing Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of income or similar Covered Taxes.
(c) In addition, Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Note or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
Section 6. Guarantee.
---------
6.0 1. The Guarantee. The Guarantors hereby jointly and severally
--------------
guarantee as a primary obligor and not as a surety to each Lender, Issuing
Lender and Agent and their respective successors and assigns the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the principal of and interest (including any interest that would accrue but for
the provisions of the Bankruptcy Code after any bankruptcy or insolvency
petition under the Bankruptcy Code) on the Loans made by the Lenders to, and the
Notes held by each Lender of, Borrower and all other Obligations from time to
time owing to the Lenders, Issuing Lender or Agents by Borrower under this
Agreement and under the Notes and by any Obligor under any of the other Credit
Documents, and all obligations of Borrower or any Subsidiary to any Lender or
any Affiliate of any Lender in respect of any Swap Contract and all Obligations
owing to the Issuing Lender under the Letter of Credit Documents, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "Guaranteed Obligations"). The Guarantors hereby jointly
and severally agree that if Borrower shall fail to pay in full when due (whether
at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantors will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
6.02. Obligations Unconditional. The obligations of the Guarantors
--------------------------
under Section 6.01 are absolute, irrevocable and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of Borrower under this Agreement, the Notes or
any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
Guarantor (except for payment in full). Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Guarantors hereunder which shall
remain absolute, irrevocable and unconditional under any and all circumstances
as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
-59-
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be amended in any
respect, or any right under this Agreement, the Notes or any other Credit
Document or any other agreement or instrument referred to herein or therein
shall be amended or waived in any respect or any other guarantee of any of
the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of, the
Issuing Lender or any Lender or Agent as security for any of the
Guaranteed Obligations shall fail to be perfected; or
(v) the release of any other Guarantor.
The Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Issuing Lender or any Agent or any Lender exhaust any right, power or remedy or
proceed against Borrower under this Agreement or the Notes or any other
agreement or instrument referred to herein or therein, or against any other
Person under any other guarantee of, or security for, any of the Guaranteed
Obligations. The Guarantors waive any and all notice of the creation, renewal,
extension, waiver, termination or accrual of any of the Guaranteed Obligations
and notice of or proof of reliance by the Issuing Lender, any Lender or any
Agent upon this guarantee or acceptance of this guarantee, and the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this guarantee, and all dealings between
Borrower and the Issuing Lender, Lenders and Agents shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
guarantee. This guarantee shall be construed as a continuing, absolute,
irrevocable and unconditional guarantee of payment without regard to any right
of offset with respect to the Guaranteed Obligations at any time or from time to
time held by the Issuing Lender, Lenders and Agents, and the obligations and
liabilities of the Guarantors hereunder shall not be conditioned or contingent
upon the pursuit by the Issuing Lender, Lenders or Agents or any other Person at
any time of any right or remedy against Borrower or against any other Person
which may be or become liable in respect of all or any part of the Guaranteed
Obligations or against any collateral security or guarantee therefor or right of
offset with respect thereto. This guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the
Guarantors and the successors and assigns thereof, and shall inure to the
benefit of the Lenders, and their respective successors and assigns,
notwithstanding that from time to time during the term of this Agreement there
may be no Guaranteed Obligations outstanding.
6.03. Reinstatement. The obligations of the Guarantors under this
-------------
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
-60-
or reorganization or otherwise. The Guarantors jointly and severally agree that
they will indemnify the Issuing Lender, each Agent and each Lender on demand for
all reasonable costs and expenses (including reasonable fees of counsel)
incurred by the Issuing Lender, such Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law, other than any costs or expenses resulting from the
gross negligence or bad faith of such Creditor.
6.04. Subrogation; Subordination. Each Guarantor hereby agrees
---------------------------
that until the indefeasible payment and satisfaction in full in cash of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement it shall not exercise any right or remedy
arising by reason of any performance by it of its guarantee in Section 6.0 1,
whether by subrogation or otherwise, against Borrower or any other Guarantor of
any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations. The payment of any amounts due with respect to any indebtedness of
Borrower or any other Guarantor now or hereafter owing to any Guarantor by
reason of any payment by such Guarantor under the Guarantee in this Section 6 is
hereby subordinated to the prior indefeasible payment in full in cash of the
Guaranteed Obligations. Each Guarantor agrees that it will not demand, ▇▇▇ for
or otherwise attempt to collect any such indebtedness of Borrower to such
Guarantor until the Obligations shall have been indefeasibly paid in full in
cash. If, notwithstanding the foregoing sentence, any Guarantor shall prior to
the indefeasible payment in full in cash of the Guaranteed Obligations collect,
enforce or receive any amounts in respect of such indebtedness, such amounts
shall be collected, enforced and received by such Guarantor as trustee for
Agents, the Issuing Lender and the Lenders and be paid over to Administrative
Agent on account of the Guaranteed Obligations without affecting in any manner
the liability of such Guarantor under the other provisions of the guaranty
contained herein.
6.05. Remedies. The Guarantors jointly and severally agree that,
---------
as between the Guarantors and the Lenders, the obligations of Borrower under
this Agreement and the Notes may be declared to be forthwith due and payable as
provided in Section 10 (and shall be deemed to have become automatically due and
payable in the circumstances provided in said Section 10) for purposes of
Section 6.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against Borrower and that, in the event of such declaration (or
such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by Borrower) shall forthwith
become due and payable by the Guarantors for purposes of Section 6.01.
6.06. Instrument for the Payment of Money. Each Guarantor hereby
------------------------------------
acknowledges that the guarantee in this Section 6 constitutes an instrument for
the payment of money, and consents and agrees that any Lender or Agent, at its
sole option, in the event of a dispute by such Guarantor in the payment of any
moneys due hereunder, shall have the right to bring motion-action under New York
CPLR Section 3213.
6.07. Continuing Guarantee. The guarantee in this Section 6 is a
---------------------
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
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6.08. General Limitation on Guarantee Obligations. In any action
--------------------------------------------
or proceeding involving any state corporate law, or any state, Federal or
foreign bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under Section 6.01
would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 6.01, then, notwithstanding any
other provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Lender, any Agent or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding; provided that, without limiting the generality of
the foregoing, in any such action or proceeding in which KRS 371.065 governs,
(i) the maximum aggregate liability of any Guarantor under Section 6.01 shall be
deemed to be $875,000,000 and (ii) the guarantee shall terminate on September
30, 2005; provided, further, that nothing herein shall be construed to imply
-------- --------
that KRS 371.065 governs.
Section 7. Conditions Precedent.
---------------------
7.01. Effectiveness and Initial Extension of Credit. The
----------------------------------------------
effectiveness of this Amended and Restated Credit Agreement and the other Credit
Documents and the obligation of the Lenders to make any initial extension of
credit hereunder (whether by making a Loan or issuing a Letter of Credit) is
subject to the satisfaction of the conditions precedent that:
(i) Documentation and Evidence of Certain Matters. The Agents shall
have received the following documents, each duly executed where appropriate
(with sufficient conformed copies for each Lender), each of which shall be
reasonably satisfactory to the Agents (and to the extent specified below,
to each Lender) in form and substance:
(1) Corporate Documents. Certified true and complete copies of
--------------------
the charter and by-laws and all amendments thereto (or equivalent
documents) of each Obligor and of all corporate authority for each
Obligor (including board of director resolutions and evidence of the
incumbency, including specimen signatures, of officers) with respect
to the execution, delivery and performance of such of the Credit
Documents to which such Obligor is intended to be a party and each
other document to be delivered by such Obligor from time to time in
connection herewith and the extensions of credit hereunder and the
consurnmation of the transactions contemplated hereby, certified as of
the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of Borrower.
(2) Officers' Certificate. An Officers' Certificate of Borrower,
----------------------
dated the Closing Date, to the effect set forth in clauses (a) and (b)
of Section 7.02(i) and to the effect that all conditions precedent to
the making of such extension of credit have been satisfied.
(3) Opinions of Counsel. (a) Opinion of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇
--------------------
PLLC, counsel to the Obligors, substantially in the form of Exhibit ▇-
▇, and (b) an opinion of counsel to the Obligors, substantially in the
form of Exhibit E-2 addressed to
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Agents and the Lenders, in each jurisdiction where Mortgaged Real
Property is located in form and substance reasonably satisfactory to
Agents (and each Obligor hereby instructs such counsel to deliver such
opinion to the Lenders and Agents).
(4) The Credit Agreement. This Agreement, (a) executed and
---------------------
delivered by a duly authorized officer of each Obligor with a
counterpart for each Lender, and (b) executed and delivered by a duly
authorized officer of each Lender and Agent.
(5) Notes. The Notes, duly completed and executed for each Lender
------
that has requested Notes prior to the Closing Date.
(6) Security Agreement. The Security Agreement and such other
-------------------
pledge agreements required under applicable Requirements of Law in the
judgment of counsel to Administrative Agent (each of which shall be in
full force and effect), duly authorized, executed and delivered by the
Obligors and Administrative Agent, together with (a) the certificates,
if any, identified under the name of such Obligors in Schedule I-A and
------------
Schedule I-B to the Security Agreement, accompanied by undated stock
------------
powers or instruments of assignment executed in blank if applicable,
and (b) the notes identified under the name of such Obligors in
Schedule 11 to the Security Agreement, accompanied by undated
-----------
notations or instruments of assignment executed in blank.
(7) Solvency Certificate and Opinion. A certificate from the
---------------------------------
chief financial officer of Borrower and, at Borrower's expense, a
nationally recognized appraisal firm or valuation consultant
reasonably satisfactory to Arrangers in form and substance reasonably
Satisfactory to Arrangers and the Lenders with respect to the Solvency
of each Obligor immediately after giving effect to the transactions
contemplated hereby.
(8) Insurance. Evidence of insurance and certificates of
----------
Insurance complying with the requirements of Section 9.04 and the
Security Documents.
(9) Certain Documents, etc. Any management or similar agreement
-----------------------
entered into with any Excluded Person or any of their respective
Affiliates and all exhibits, appendices, annexes and schedules to any
thereof, each certified by a senior officer of Borrower as true,
complete and correct copies thereof. The Agents shall have had at
least three Business Days to review all documentation to be delivered
pursuant to this paragraph and all such documentation shall be in form
and substance reasonably satisfactory to the Agents.
(10) Officers' Certificate Regarding Covered Properties. An
---------------------------------------------------
Officers' Certificate of Borrower certifying that, to the best of such
Officers' knowledge and in all material respects: (a) except as set
forth on an exhibit to the certificate, on a net basis there are no
take or pay or other prepayments with respect to the Covered
Properties (other than those permitted by the Security Documents)
which would require any Company to deliver coal mined from the Covered
Properties at some
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future time without then or thereafter receiving full payment
therefor, (b) none of the Covered Properties has been sold, and (c)
the Covered Properties are part of the Mortgaged Real Property as of
the Amendment and Restatement Date.
(11) Repayment of Existing Indebtedness. Evidence in the form of
-----------------------------------
a "pay-off" letter that the principal of and interest on, and all
other amounts owing in respect of, the Indebtedness listed on Schedule
--------
7.01(i)(11) have been (or shall be simultaneously) paid in full, that
-----------
any commitments to extend credit under the agreements or instruments
relating to such Indebtedness have been canceled or terminated and
that all guarantees in respect of, and all Liens securing, any such
Indebtedness have been released (or arrangements for such release
satisfactory to Agents have been made); in addition, from any Person
holding any Lien securing any such Indebtedness, such Uniform
Commercial Code termination statements, mortgage releases and other
instruments, in each case in proper form for recording, as Agents
shall have reasonably requested to release and terminate of record the
Liens securing such Indebtedness (or arrangements for such release and
termination reasonably satisfactory to Agents and the Majority Lenders
have been made).
(12) Financial Statements. Unaudited interim financial statements
---------------------
of Borrower and each Acquired Business for each fiscal month and
quarterly period ended subsequent to June 30, 1998 as to which such
financial statements are available and such financial statements shall
not, in the reasonable judgment of the Lenders, reflect any material
adverse change in the financial condition of Borrower and each of the
Acquired Business as reflected in the financial statements previously
furnished to the Lenders.
(13) Business Plan. A detailed budget for fiscal years 1998 and
--------------
1999 and a written analysis of the business and prospects of Borrower
and the Subsidiaries (after giving effect to the transactions
contemplated hereby).
(14) Consents, Licenses and Approvals. A certificate of a
---------------------------------
responsible officer of Borrower stating that all consents,
authorizations and filings (other than the consents set forth on
Schedule 8.06) necessary to enter into and consummate the transactions
-------------
contemplated hereby and perform the obligations under the Credit
Documents are in full force and effect (or there shall be a plan
satisfactory to Agents and the Majority Lenders in their respective
sole discretion for the obtaining thereof) and that all applicable
waiting periods have expired without any action being taken by any
competent authority or threatened which, would restrain, prevent or
otherwise impose materially adverse conditions on any Company, and
each such consent, authorization and filing shall be in form and
substance satisfactory to Agents.
(ii) Management Agreements. The Agents shall be reasonably satisfied
----------------------
with the terms and conditions of any management agreement entered into or
proposed to be entered into with any Excluded Person or any of their
Affiliates or any other Person.
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(iii) Legality. Each of the transactions contemplated hereby to be
---------
consummated on the Amendment and Restatement Date shall be in compliance
with all laws and regulations, or the Agents shall have determined such to
be inapplicable to such transactions.
(iv) [omitted]
(v) [omitted]
(vi) [omitted]
(vii) Reserve Reports. Completed and signed reserve reports by the
----------------
engineering firms previously identified to Agents with respect to the
Obligors, which completed reserve reports will not be materially different
from the summary information previously furnished to Agents.
(viii) No Other Debt or Preferred Stock. After giving effect to the
---------------------------------
transactions contemplated hereby, Borrower and the Subsidiaries shall have
outstanding no Indebtedness or preferred stock (or direct or indirect
guarantee or other credit support in respect thereof) outstanding other
than the Loans under this Agreement, and the Existing Debt.
(ix) No Mat rial Adverse Change. (1) ▇▇▇▇▇▇▇ shall not have sustained
---------------------------
any loss or interference with respect to its business or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding, which loss or interference, in the reasonable judgment of the
Lender, has had or has a material adverse effect on the business, condition
(financial or other), or operations of ▇▇▇▇▇▇▇ and there shall not have
been, in the reasonable judgment of the Lender, any material adverse change
in the business, condition (financial or other), or operations of ▇▇▇▇▇▇▇;
(2) trading generally shall not have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers,
Inc.; (3) a general moratorium on commercial banking activities in New York
shall not have been declared by either Federal or New York State
governmental authorities; and (4) there shall not have occurred any
outbreak or escalation of hostilities or any material adverse change in
financial markets or any calamity or crisis that, in the reasonable
judgment of the Agents, makes it impracticable to sell or syndicate the
Loans and the Commitments. As used in the previous sentence, "material
adverse change in financial markets" shall mean a decline of 12% or more in
the Dow ▇▇▇▇▇ Industrial Average from August 3, 1998.
(x) Pro Forma Balance Sheet. The Lenders shall have received a pro
------------------------
forma consolidated balance sheet of Borrower and the Subsidiaries dated as
of the date of the most recently available financial statements of Borrower
after giving effect to the transactions contemplated hereby, which balance
sheet shall be consistent in all material respects with the sources and
uses of funds and the other conditions contemplated hereby. Each Company
shall also have provided such other financial information as the Lenders or
Agents may reasonably request in connection with the transactions
contemplated hereby.
-65-
(xi) Approvals. Except for the consents set forth on Schedule 8.06,
---------- -------------
all requisite Governmental Authorities and third parties shall have
approved or consented to the transactions contemplated hereby to the extent
required, all applicable appeal periods shall have expired and there shall
be no governmental or judicial action or Proceeding, actual or threatened,
that has had the effect of (or could reasonably be expected to have the
effect of) restraining, preventing or imposing materially burdensome
conditions on any of the transactions contemplated hereby, except, in each
case, as would not, singly or in the aggregate, result in a Material
Adverse Effect.
(xii) No Default in Other Agreements. Any defaults in any material
-------------------------------
agreements of any Company that may result from the transactions
contemplated hereby shall have been resolved or otherwise addressed in a
manner reasonably satisfactory to Agents and the Majority Lenders; and no
law or regulation adopted, proposed or applicable after the date of the
Commitment Letter shall be applicable in the reasonable judgment of Agents
and the Majority Lenders that restrains, prevents or imposes materially
adverse conditions upon any component of the transactions contemplated
hereby or the financing thereof, including the extensions of credit under
this Agreement.
(xiii) Margin Rule Compliance. All Loans and other financing to
-----------------------
Borrower shall be in full compliance with all applicable requirements of
Regulations T, U and X.
(xiv) Satisfactory Environmental Reports Governmental Real Property
-------------------------------------------------------------
Disclosure Requirements. The Agents shall have received (1) reasonably
------------------------
satisfactory third-party environmental reports (including Phase I reports)
of the Borrower and the Subsidiaries reasonably requested by the Agents and
(2) all documentation necessary under all applicable Governmental Real
Property Disclosure Requirements. The Obligors shall take or cause to be
taken all actions necessary in connection with such Governmental Real
Property Disclosure Requirements.
(xv) Other Documentation. All other documentation, including any
--------------------
employment agreement, management compensation arrangement (including any
agreements entered into with any of the senior management of any Company)
after the transactions contemplated hereby or other financing arrangement
of each Company shall be reasonably satisfactory in form and substance to
Agents and the Majority Lenders.
(xvi) Payment of Fees and Expenses. All accrued fees and expenses
-----------------------------
(including the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
special counsel to Agents) of Agents and accrued fees of the Lenders in
connection with the Credit Documents and the Fee Letter shall have been
paid.
(xvii) Filings and Lien Searches. The Obligors shall have authorized,
--------------------------
executed and delivered each of the following:
(1) UCC Financing Statements (Form UCC-1 or UCC-2, as
appropriate) in appropriate form for filing under the UCC and any
other applicable Requirements
-66-
of Law in each jurisdiction as may be necessary or appropriate to
perfect the Liens created, or purported to be created, by the Security
Documents;
(2) certified copies of Requests for Information (Form UCC-11),
tax lien, judgment lien and pending lawsuit searches or equivalent
reports or lien search reports, each of a recent date listing all
effective financing statements, lien notices or comparable documents
that name any Obligor as debtor and that are filed in those state and
county jurisdictions in which any of the Collateral of such Obligor is
located and the state and county jurisdictions in which each such
Obligor's principal place of business is located, none of which
encumber the Collateral covered or intended to be covered by the
Security Documents other than those encumbrances which constitute
Prior Liens;
(3) to the extent equipment or inventory is maintained on a
leased premise located in a Covered Property, a copy of each Lease or
other agreement relating to such possessory interest; and
(4) evidence of the completion of all recordings and filings of,
or with respect to, the Security Agreement, including filings with the
United States Patent, Trademark and Copyright offices, and delivery of
such other security and other documents, including, without
limitation, financial account consent letters and consents of counter
parties to contracts and leases, and the taking of all actions as may
be necessary or, in the opinion of Administrative Agent, desirable, to
perfect the Liens created, or purported to be created, by the Security
Agreement, except for any of the foregoing to be provided after the
Closing Date pursuant to Section 9.13 hereof.
(xviii) Conditions Relating to Covered Property and Real Property.
---------------------------------------------------------
Each Obligor shall have caused to be delivered to Administrative Agent on
behalf of Agents and the Lenders, the following documents and instruments:
(1) (i) a Mortgage Amendment to each Mortgage delivered on the
Closing Date (other than a Mortgage which encumbers the Shipyard
Properties, which shall be subject to the provisions of Section 9.13
hereof), duly authorized and executed, in form for recording in the
recording office of each jurisdiction where the Covered Property
encumbered thereby is situated, together with such other instruments
as shall be necessary or appropriate (in the judgment of the
Administrative Agent) to maintain and create a Lien under applicable
law, all of which shall be in form and substance reasonably
satisfactory to Administrative Agent, which Mortgage Amendment
together with the appropriate Mortgage shall be effective to create
and/or maintain a first priority Lien on such Covered Property subject
to no Liens other than Prior Liens applicable to such Covered Property
or (ii) a Mortgage duly authorized and executed encumbering each
Covered Property described in clause (vi) of the definition thereof
(other than any portions of the Covered Properties affected by the
consents described on Schedule 8.06) in favor of Administrative Agent,
-------------
for the benefit of the
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Agents and the Lenders, in form for recording in the recording office
of each jurisdiction where each such Covered Property is situated,
together with such other instruments as shall be necessary or
appropriate (in the judgment of the Administrative Agent) to create a
Lien under applicable law, all of which shall be in form and substance
reasonably satisfactory to Administrative Agent, which Mortgage and
other instruments shall be effective to create a first priority Lien
on such Covered Property subject to (i) no Liens other than Prior
Liens applicable to such Covered Property and (ii) the inability of
the Obligors to grant a security interest in unrecorded Real Property
interests; provide however, that the Obligors shall endeavor to record
such unrecorded instruments in accordance with Section 1.4 of the
Mortgage;
(2) an Intercompany Lease Agreement, duly authorized and
executed, assigning each Obligor's interest in the Intercompany Leases
to Administrative Agent, for the benefit of the Agents and the
Lenders, in form for recording in the recording office of each
jurisdiction where the Real Property demised under each Intercompany
Lease is situated, together with such other instruments as shall be
necessary or appropriate (in the judgment of Administrative Agent) to
create and/or maintain a Lien under applicable law, all of which shall
be in form and substance reasonably satisfactory to Administrative
Agent, which Intercompany Lease Agreement and other instruments would
be effective to create and/or maintain (upon recordation of such
instruments at the times contemplated in the Intercompany Lease
Agreement) a first priority Lien on such Obligor's interests in the
Intercompany Leases subject to no Liens other than Prior Liens
permitted by the Intercompany Lease Agreement;
(3) except for any of the following which are to be provided
after the Amendment and Restatement Date pursuant to Section 9.13,
with respect to each leased Covered Property and each other leased
Real Property at which significant Pledged Collateral (as determined
in the reasonable discretion of Administrative Agent) is located Lien
Waiver and Access Agreement, substantially in the form of Exhibit L;
(4) with respect to each Covered Property listed on Schedule
--------
1.01(d)(viii)(4) and such Covered Properties as determined in the
----------------
reasonable discretion of the Administrative Agent, a Survey;
(5) with respect to each Real Property, policies or certificates
of insurance of the type required by Section 1.7 of the Mortgages;
(6) with respect to each Real Property, UCC, judgment and tax
Lien searches in form and substance satisfactory to Administrative
Agent;
(7) evidence acceptable to Administrative Agent of payment by
Borrower of all title insurance premiums, search and examination
charges, survey costs, mortgage recording taxes and related charges
required for the recording of the
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Mortgages and issuance of the title insurance policies referred to in
this Section 7.01(xviii);
(8) with respect to each Covered Property, copies of all leases
in which any Obligor holds the landlord's or the tenants interest,
each of which shall be acceptable to Administrative Agent;
(9) with respect to each Covered Property, an Officer's
Certificate substantially in the form of Exhibit O;
---------
(10) except for any of the following which are to be provided
after the Amendment and Restatement Date pursuant to Section 9.13,
with respect to (a) each Covered Property on which significant surface
Improvements are located as indicated on Schedule 1.01(d)(vii) (other
----------------------
than any portions of such Covered Properties affected by the consents
described on Schedule 8.06), a policy (or commitment to issue a
-------------
policy) of title insurance insuring (or committing to insure) the Lien
of the Mortgage encumbering such Covered Property as a valid first
priority Lien on the Real Property and fixtures described therein (or,
if such title insurance is unavailable at commercially reasonable
rate, in the case of significant surface Improvements located on the
portions of the Covered Properties affected by the consents described
on Schedule 8.06, a title opinion or certificate of title containing
-------------
no exceptions to title other than exceptions for Prior Liens and other
exceptions reasonably acceptable to Administrative Agent), and (b)
each other Covered Property except such Covered Property the loss of
which would not materially impair the value or operation of any Mine
Site as determined in the sole discretion of the Administrative Agent,
a title opinion confirming that the Lien of the Mortgage encumbering
such Covered Property constitutes a valid first priority Lien on the
Real Property and fixtures described therein. Each policy (or
commitment to issue a policy) of title insurance shall be in an amount
not less than 115% of the fair market value thereof and shall (i) be
issued by the Title Company, (ii) include such reinsurance
arrangements (with provisions for direct access) as shall be
reasonably acceptable to Administrative Agent, (iii) have been
supplemented by such endorsements (or where such endorsements are not
available, opinions of special counsel or other professionals
acceptable to Administrative Agent) as shall be reasonably requested
by Administrative Agent and shall be available in the applicable
jurisdiction at commercially reasonable rates (including, without
limitation, endorsements on matters relating to usury, first loss,
last dollar, zoning, contiguity, revolving credit, doing business,
road access, variable rate and so-called comprehensive coverage over
covenants and restrictions), (iv) include such affidavits and
instruments of indemnifications by Borrower and the applicable
Subsidiary as shall be reasonably required to induce the Title Company
to issue the policy or policies (or commitment) and endorsements
contemplated in this paragraph and (v) contain no exceptions to title
other than exceptions for Prior Liens and other exceptions reasonably
acceptable to Administrative Agent. Each title opinion shall (a)
contain such supplemental opinions as shall be reasonably requested by
Administrative Agent and shall be
-69-
commercially reasonably available (including, without limitation,
opinions on matters relating to zoning, contiguity and road access),
(b) be accompanied by such affidavits and instruments as shall be
reasonably requested by Administrative Agent in connection with such
opinions and (c) contain no exceptions to title other than exceptions
for Prior Liens and other exceptions reasonably acceptable to
Administrative Agent; and
(11) with respect to each Covered Property (other than any
portions of such Covered Property affected by the consents described
on Schedule 8.06), all such other items as shall be reasonably
-------------
necessary in the opinion of counsel to the Lenders to create a valid
perfected first priority mortgage Lien on such Covered Real Property
subject only to Prior Liens.
(xix) Other Matters. The Lenders shall have received such other legal
--------------
opinions, corporate documents and other instruments and/or certificates,
including, as the Agents or the Majority Lenders may request in their
reasonable discretion.
7.02. Initial and Subsequent Extensions of Credit. The obligation of
--------------------------------------------
the Lenders to make any Loan or otherwise extend any credit to Borrower upon the
occasion of each borrowing or other extension of credit (whether by making a
Loan or issuing a Letter of Credit but excluding any Continuation of any LIBOR
Loan or any Conversion) hereunder (including the initial borrowing) is subject
to the further conditions precedent that:
(i) No Default, Representations and Warranties True. Both immediately
------------------------------------------------
prior to the making of such Loan or other extension of credit and also
after giving pro forma effect thereto and to the intended use thereof
(A) no Default shall have occurred and be continuing; and
(B) the representations and warranties made by the Obligors in
Section 8, and by each Obligor in each of the other Credit Documents
to which it is a party, shall be true and complete on and as of the
date of the making of such Loan or other extension of credit with the
same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date).
(ii) No Legal Bar. The Loans and the use of proceeds thereof shall not
-------------
contravene, violate or conflict with, nor involve any Lender in a violation
of, any law, rule, injunction, or regulation or determination of any court
of law or other Governmental Authority.
(iii) No Material Adverse Effect. There shall not have occurred any
---------------------------
event or circumstances which has had or is reasonably likely to have a
Material Adverse Effect.
(iv) Notice of Borrowing. Administrative Agent shall have received a
--------------------
Notice of Borrowing duly completed and complying with Section 4.05.
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Each notice of borrowing or request for the issuance of a Letter of
Credit by Borrower hereunder shall constitute a certification by Borrower to the
effect set forth in clause (i) above as of the date of such borrowing or
issuance.
Each notice submitted by Borrower hereunder for an extension of credit
hereunder shall constitute a representation and warranty by Borrower, as of the
date of such notice and as of the relevant borrowing date or date of issuance of
a Letter of Credit, as applicable, that the applicable conditions in Sections
7.01 and 7.02 have been satisfied in accordance with the terms hereof.
7.03. Determinations Under Section 7. For purposes of determining
-------------------------------
compliance with the conditions specified in Sections 7.01 and 7.02, each Lender
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 Lenders unless an officer of
Administrative Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
Borrower, by notice to the Lenders, designates as the proposed date of the
extension of credit, specifying its objection thereto.
Section 8. Representations and Warranties. Each Obligor represents and
-------------------------------
warrants to the Creditors that at and as of each Funding Date (in each case
immediately before and immediately after giving effect to the transactions to
occur on such date):
8.01. Corporate Existence. Each Obligor and each Subsidiary: (a)
--------------------
is a corporation, partnership or other entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization; (b)
has all requisite corporate or other power and authority, and has all
governmental licenses, authorizations, consents and approvals necessary to own
its Property and carry on its business as now being conducted; and (c) is
qualified to do business and is in good standing in all jurisdictions in which
the nature of the business conducted by it makes such qualification necessary
and where failure to be so qualified and in good standing individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
8.02. Financial Condition, Etc. (a) Borrower has heretofore
-------------------------
delivered to the Lenders the audited consolidated balance sheets of Borrower and
the Subsidiaries and of each of the businesses acquired prior to the Amendment
and Restatement Date (each an "Acquired Business") as of December 31, 1995,
-----------------
December 31, 1996 and December 31, 1997, and the related statements of earnings,
changes in stockholders' equity and cash flows for the fiscal years ended
December 31, 1996 and December 31, 1997, (B) the unaudited consolidated balance
sheets of Borrower and the Subsidiaries and of each of the Acquired Businesses
as of June 30, 1998, and the related statements of earnings and cash flows for
the fiscal periods ended on June 30, 1998. All of said financial statements,
including in each case the related schedules and notes, are true, complete (in
the case of year-end financial statements) and correct in all material respects,
have been prepared in accordance with GAAP consistently applied and present
fairly and accurately the financial position of Borrower and the Subsidiaries
and each of the Acquired Businesses as of the respective dates of said balance
sheets and the results of their operations for the respective periods covered
thereby, subject (in the case of interim statements) to period-end audit
adjustments.
-71-
(b) Except as set forth in Schedule 8.02(b) or in the financial
----------------
statements referred to in 8.02(a), there are no liabilities of any Company of
any kind, whether accrued, contingent, absolute, determined, determinable or
otherwise, which would, or could reasonably be expected to, have a Material
Adverse Effect and there is no existing condition, situation or set of
circumstances which could reasonably be expected to result in such a liability,
other than liabilities under this Agreement or liabilities incurred in
connection with the transactions contemplated hereby.
(c) Except as set forth in Schedule 8.02(c), since June 30, 1998 there
----------------
has been no Material Adverse Change, or any event, change or circumstance which
could reasonably be expected to have a Material Adverse Change.
(d) Each of the pro forma balance sheet of Borrower and its
Consolidated Subsidiaries (the "Pro Forma Balance Sheets"), certified by the
------------------------
chief financial officer of Borrower, copies of which have been heretofore
furnished to each Lender, is the balance sheet of Borrower and its Consolidated
Subsidiaries as of the date of the latest available balance sheet of Borrower
prior to the Closing Date (the "Pro Forma Date"), adjusted to give effect (as if
--------------
such events had occurred on such date) to the transactions to occur on the
Closing Date and the application of the proceeds of all Indebtedness incurred on
such date. Each Pro Forma Balance Sheet, together with the notes thereto,
accurately reflects in all material respects all adjustments necessary to give
effect to the transactions contemplated hereby, was prepared based on good faith
assumptions, and presents fairly in all material respects on a pro forma basis
the consolidated financial position of Borrower and its Consolidated
Subsidiaries as at the Pro Forma Date, adjusted as described above.
8.03. Litigation. Except as set forth in Schedule 8.03 there is no
----------- -------------
Proceeding pending against, or to the knowledge of Borrower threatened against
or affecting, any Company or any of its respective Properties before any
Governmental Authority which is reasonably likely to have a Material Adverse
Effect.
8.04. No Breach, No Default. (a) None of the execution, delivery
----------------------
and performance by each Obligor of any Credit Document to which it is a party
and the consummation of the transactions herein and therein contemplated will
(i) conflict with or result in a breach of, or require any consent (which has
not been obtained and is in full force and effect) under, any Organic Document
of any Company, or any applicable Requirement of Law or any order, writ,
injunction or decree of any Governmental Authority binding on any Company, or
any term or provision of any Contractual Obligation of any Company, or (ii)
constitute (with due notice or lapse of time or both) a default under any such
Contractual Obligation, or (iii) result in the creation or imposition of any
Lien (except for the Liens created pursuant to the Security Documents) upon any
Property of any Company pursuant to the terms of any such Contractual
Obligation, except with respect to each of the foregoing which could not
reasonably be expected to have a Material Adverse Effect or which could not
reasonably be expected to subject any Agent, Lender or Issuing Lender to any
material risk of damages or liability to third parties.
(b) No Company is in default under or with respect to any Contractual
Obligation or any order, award or decree of any Governmental Authority or
arbitrator binding upon it or any of its Property in any respect which could
reasonably be expected to have a Material Adverse Effect.
-72-
(c) No Default or Event of Default has occurred and is continuing.
8.05. Action. Each Company has all necessary corporate power,
-------
authority and legal right to execute, deliver and perform its obligations under
each Credit Document to which it is a party and to consummate the transactions
herein and therein contemplated; the execution, delivery and performance by each
Company of each Credit Document to which it is a party and the consummation of
the transactions herein and therein contemplated have been duly authorized by
all necessary corporate action on its part; and this Agreement has been duly and
validly executed and delivered by each Obligor and constitutes, and each of the
Notes and the other Credit Documents to which it is a party when executed and
delivered by such Obligor (in the case of the Notes, for value) will constitute,
its legal, valid and binding obligation, enforceable against each Obligor in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws of general applicability from time to time in effect affecting the
enforcement of creditors' rights and remedies and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
8.06. Approvals. No authorizations, approvals or consents of, and
----------
no filings or registrations with, any Governmental Authority, any securities
exchange or any other Person are necessary for the execution, delivery or
performance by any Company of the Credit Documents to which it is a party or for
the granting of a Lien on any Company's Property in favor of Administrative
Agent pursuant to the Security Documents or for the legality, validity or
enforceability hereof or thereof or for the consummation of the transactions
herein and therein contemplated, except for filings and recordings in respect of
the Liens created pursuant to the Security Documents and except for consents,
authorizations and filings (i) that have been obtained or made and are in full
force and effect or (ii) set forth on Schedule 8.06.
-------------
8.07. [Omitted].
-------
8.08. ERISA. No ERISA Event has occurred or is reasonably expected
------
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to have
a Material Adverse Effect. The present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $1.0 million the fair market value of the assets of all such underfunded
Plans. Each member of the ERISA Group is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan.
8.09. Taxes. Except as could not reasonably be expected to have a
------
Material Adverse Effect, (i) all Tax returns, statements, reports and forms
(including estimated Tax or information returns) (collectively, the "Tax
---
Returns") required to be filed with any taxing authority by, or with respect to,
each Company and each Unrestricted Subsidiary have been filed in accordance with
all applicable laws; (ii) each Company and each Unrestricted Subsidiary has
timely paid or made provision for payment of all Taxes shown as due and payable
on Tax Returns that have been so filed,
-73-
and, as of the time of filing, each Tax Return correctly reflected the facts
regarding income, business, assets, operations, activities and the status of
each Company and each Unrestricted Subsidiary (other than Taxes which are being
contested in good faith and for which adequate reserves are reflected on
Borrower's financial statements); (iii) each Company and each Unrestricted
Subsidiary have made provision for all Taxes payable by such Company and each
Unrestricted Subsidiary for which no Tax Return has yet been filed; Ov) the
charges, accruals and reserves for Taxes with respect to each Company and each
Unrestricted Subsidiary reflected on Borrower's financial statements are
adequate under United States generally accepted accounting principles to cover
the Tax liabilities accruing through the date thereof, and (v) there is no
action, suit, proceeding, audit or claim now proposed or pending against or with
respect to any Company or any Unrestricted Subsidiary in respect of any Tax
where there is a reasonable possibility of an adverse determination.
Except as set forth on Schedule 8.09, (i) no extension of a statute of
--------------
limitations relating to material Taxes is in effect with respect to any Company
or any Unrestricted Subsidiary; (ii) no Company or any Unrestricted Subsidiary
has ever been a member of an affiliated group of corporations within the meaning
of Section 1504 of the Code other than an affiliated group of corporations of
which Borrower was the common parent; and (iii) there are no material Tax
sharing agreements or similar arrangements (including Tax indemnity
arrangements) with respect to or involving any Company or any Unrestricted
Subsidiary.
For purposes of this Section 8.09, "Taxes" means any and all taxes,
-----
charges, fees, levies or other assessments, including income, gross receipts,
excise, real or personal property, sales, withholding, social security,
retirement, unemployment, occupation, use, service, license, net worth, payroll,
franchise, and transfer and recording, imposed by the Internal Revenue Service
or any taxing authority (whether domestic or foreign, including any federal,
state, U.S. possession, county, local or foreign government or any subdivision
or taxing agency thereof), whether computed on a separate, consolidated,
unitary, combined or any other basis, including interest, fines, penalties or
additions to tax attributable to or imposed on or with respect to any such
taxes, charges, fees, levies or other assessments.
8.10. Investment Company Act; Public Utility Holding Company Act;
-----------------------------------------------------------
Other Restrictions. No Company is an "investment company", or a company
-------------------
"controlled" by an "investment company", within the meaning of the United States
Investment Company Act of 1940, as amended. No Company is a "holding company",
or an "affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the United States Public Utility Holding Company
Act of 1935, as amended. No Obligor is subject to the Federal Power Act. No
Obligor is subject to regulation under any law or regulation which limits its
ability to incur Indebtedness, including Laws relating to common contract
carriers or the sale of electricity, steam, water or other public utilities,
other than Regulation X of the Board of Governors of the Federal Reserve System.
8.11. Environmental Matters. Except as disclosed in Schedule 8.11
---------------------- -------------
and except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect: (i) each Obligor and the
Subsidiaries are in compliance with and in the last five years have been in
compliance with, and are not subject to liability under, any Environmental Laws
applicable to them and there are no Environmental Laws which would reasonably be
expected to result in
-74-
material expenditures by any Obligor or any Subsidiary, and no such
Environmental Laws would reasonably be expected to interfere in any material way
with current or projected operations of any Obligor or any Subsidiary; (ii) no
Obligor or any Subsidiary has received notice that it or any of their respective
predecessors interests has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), or any similar state or foreign or state law,
------
nor has any Obligor or any Subsidiary received notice that any Hazardous
Materials that it or any of their respective predecessors in interest has used,
generated, stored, treated, handled, transported or disposed of, or arranged for
disposal or treatment of, have been found at any site at which any Person is
conducting or plans to conduct any action pursuant to any Environmental Law, and
no Obligor or any Subsidiary, or to the knowledge of the Obligors, any of their
respective predecessors in interest, has disposed of, arranged for the disposal
or treatment of, or otherwise released Hazardous Materials at any site at which
any Person is conducting or plans to conduct any action under Environmental Law;
(iii) no properties now or formerly owned, leased or operated by any Obligor or
any Subsidiary or, to the knowledge of the Obligors, any of their respective
predecessors in interest, are (x) listed or proposed for listing on the National
Priorities List under CERCLA or (y) listed on the Comprehensive Environmental
Response, Compensation and Liability Information System List promulgated
pursuant to CERCLA or (z) included on any similar lists maintained by any
Governmental Authority; (iv) there are no past or present events, conditions,
activities, practices or actions, or any agreements, judgments, decrees or
orders by which any Obligor or any Subsidiary is bound, which would reasonably
be expected to prevent any Obligor's or any Subsidiary's compliance with any
Environmental Law, or which would reasonably be expected to give rise to any
liability of any Obligor or any Subsidiary under any Environmental Law,
including, without limitation, liability under CERCLA or similar state or
foreign laws; (v) no Lien has been asserted or recorded, or to the knowledge of
the Obligors, threatened, under any Environmental Law with respect to any asset,
facility, inventory or property currently owned, leased or operated by any
Obligor or any Subsidiary; and (vi) there are no underground storage tanks or
related piping at any property owned, operated or leased by any Obligor or any
Subsidiary, (vii) and no such tanks or related piping has been removed from such
properties, and (viii) no Obligor or any Subsidiary is subject to any judicial
or administrative Proceeding alleging the violation of, or liability under, any
Environmental Law and, to the knowledge of the Obligors, no such Proceeding is
threatened.
8.12. Environmental Investigations. All material environmental
-----------------------------
investigations, studies, audits or assessments which have been conducted and
which are in the possession, custody or control of any Company relating (i) to
the current or prior business, operations, facilities or Property of any Company
or any Unrestricted Subsidiary or any of their respective predecessors in
interest or (ii) to any facility, Property or other asset now or previously
owned, operated, leased or used by any Company or any Unrestricted Subsidiary or
any of their respective predecessors in interest have been made available to the
Agents and the Lenders.
8.13. Use of Proceeds. No Company is engaged principally, or as
----------------
one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock and no part of the proceeds of any extension of credit hereunder will be
used directly or indirectly and whether immediately, incidentally or ultimately
to purchase or carry any Margin Stock or to extend credit to others for such
purpose or to refund
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Indebtedness originally incurred for such purpose. Following application of the
proceeds of each extension of credit hereunder, not more than 25 percent of the
value of the assets (either of Borrower only or of Borrower and the Subsidiaries
on a consolidated basis) will be Margin Stock. If requested by any Lender or
Administrative Agent, Borrower will furnish to Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the requirements
of FR Form UI referred to in Regulation U.
8.14. Subsidiaries. As of the Closing Date, Borrower does not have
-------------
any Subsidiaries or interests in partnerships, joint ventures or business trusts
other than the entities set forth on Schedule 8.14(a). Schedule 8.14(b) depicts
---------------- ----------------
the organizational structure of the Obligors as of the Closing Date. Borrower
owns, as of the Closing Date, the percentage of the issued and outstanding
Equity Interests or other evidences of the ownership of each of the
Subsidiaries, partnerships or joint ventures listed on Schedule 8.14(a) as set
----------------
forth on such Schedule. No such Subsidiary, partnership or joint venture has
issued any securities convertible into shares of its Equity Interests (or other
evidence of ownership) or any Equity Rights to acquire such shares or securities
convertible into such shares (or other evidence of ownership), and the
outstanding stock and securities (or other evidence of ownership) of such
Subsidiaries, partnerships or joint ventures are owned by Borrower and the
Subsidiaries free and clear of all Liens and Equity Rights of others of any kind
whatsoever, except for Liens permitted pursuant to the Security Documents with
respect thereto. Any Unrestricted Subsidiary created or acquired after the
Closing Date will be created or acquired in accordance with the terms hereof.
8.15. Properties. (a) Except for such exceptions that do not or
-----------
could not reasonably be expected to have a Material Adverse Effect, Borrower or
a Subsidiary (i) has good and marketable title to all the Real Properties owned
in fee reflected in the Borrower Balance Sheet or in any later financial
statements provided hereunder as being owned by Borrower or any Subsidiary
(except properties sold or otherwise disposed of since the date thereof in the
ordinary course of business), or acquired after the date thereof and (ii) has
valid leasehold interests in all leased Real Properties constituting Covered
Properties and is in possession of the Real Properties purported to be leased
thereunder (except with respect to portions thereof subleased to third parties
in the ordinary course of business and in accordance with the provisions of the
applicable Security Documents), in each case, free and clear of all Liens,
except Liens of the type described as Prior Liens in the Mortgages. To the
knowledge of Borrower, each lease described in clause (ii) of the immediately
preceding sentence is valid without default thereunder by the lessee or lessor
except as disclosed in the Officers' Certificate delivered on the Amendment and
Restatement Date pursuant to the provisions of Section 7.01(xviii)(9). Title to
all Property other than Real Property is held by a Company free and clear of all
Liens except for Prior Liens and other Liens expressly permitted to exist on
such type of Property by the terms of the applicable Security Document.
(b) The estate, title and interest of the Obligors in the Covered
Properties constitute all of the estate, title and interest in Real Properties
as are necessary for the conduct of the business and operations of Borrower and
its Subsidiaries as presently conducted and all of the Covered Properties (other
than the portions thereof affected by the consents described in Schedule 8.06
-------------
and any Mortgaged Leases (as defined in the Mortgage) which are unrecorded) are
as of the date hereof encumbered by Mortgages in favor of Administrative Agent.
The estate, title and interest of
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the Obligors in the Covered Properties listed in Schedule 1.01(d)(i), (ii),
-------------------------
(iii), (iv), (v) and (vi) are the only leasehold or fee simple mineral estates
-------------------------
or interest of the Obligors which are within the Obligors' current five-year
mine plans. The estate, title and interest of the Obligors in their respective
Properties (other than the Real Properties) constitute all of the estate, title
and interest in Properties (other than Real Properties) as are necessary for the
conduct of the business and operations of Borrower and its Subsidiaries as
presently conducted and all such Properties (other than the portions thereof
affected by the consents described in Schedule 8.06) are as of the date hereof
-------------
encumbered by Security Documents in favor of Administrative Agent.
(c) Except for such exceptions that do not, or could not reasonably be
expected to have a Material Adverse Effect, the Property of Borrower and the
Subsidiaries, taken as a whole, is in good operating condition and repair
(ordinary wear and tear excepted), and constitutes all of the assets and
properties which are required for the businesses and operations of Borrower and
the Subsidiaries as presently conducted.
8.16. Security Interest: Absence of Financing Statements; Etc. The
--------------------------------------------------------
Security Documents, once executed and delivered, will create, in favor of
Administrative Agent for the benefit of the Lenders and Agents, as security for
the obligations purported to be secured thereby, a valid and enforceable, and
upon filing or recording with the appropriate Governmental Authorities and
delivery of the applicable documents to Administrative Agent, perfected first
priority security interest in and Lien upon all of the Collateral (and the
proceeds thereof), superior to and prior to the rights of all third persons
other than the holders of Prior Liens and subject to no other Liens except for
Liens expressly permitted to exist on such Collateral by the terms of the
applicable Security Document.
Except with respect to Prior Liens and other Liens expressly permitted
by the terms of the applicable Security Document and the Liens created by the
Security Documents, there is no currently effective financing statement,
security agreement, chattel mortgage, real estate mortgage or other document
filed or recorded with any filing records, registry, or other public office,
that purports to cover, affect or give notice of any present or possible future
Lien on, or security interest in, any assets or Property of any Company or
rights thereunder or any Equity Interests of any Unrestricted Subsidiary.
8.17. Licenses and Permits, Compliance with Laws. The Companies
-------------------------------------------
hold all governmental permits, licenses, authorizations, consents and approvals
(none of which has been modified or rescinded and all of which are in full force
and effect) (collectively, the "Permits") necessary for the Companies to own,
-------
lease, and operate their respective Properties and to carry on their respective
businesses as now being conducted, except for Permits the failure of which to
obtain could not reasonably be expected to have a Material Adverse Effect.
The businesses of the Companies are not being conducted in violation
of any applicable Requirement of Law, Permit, concession, grant or other
authorization of any Governmental Authority, except for violations that could
not reasonably be expected to have a Material Adverse Effect.
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There does not exist any judgment, order or injunction prohibiting or
imposing material adverse conditions upon the performance by any Obligor of its
obligations under the Credit Documents and all applicable Requirements of Law.
8.18. True and Complete Disclosure. The information, reports,
-----------------------------
financial statements, exhibits and schedules furnished in writing by or on
behalf of any Obligor to any Creditor (other than the projections referred to in
the following sentence and other than any reserve studies prepared by third
parties) in connection with the negotiation, preparation or delivery of this
Agreement and the other Credit Documents or included herein or therein or
delivered pursuant hereto or thereto or pursuant to any information memorandum
distributed in connection with the syndication of the Commitments and Loans,
including all filings made with the Commission by any Company, whether prior to
or after the date of this Agreement, when taken as a whole, do not, as of the
date such information was furnished, contain any untrue statement of material
fact or omit to state a material fact necessary in order to make the statements
herein or therein, in light of the circumstances under which they were made, not
materially misleading. The projections and pro forma financial information
furnished at any time by any Obligor to any Creditor pursuant to this Agreement
have been prepared in good faith based on assumptions believed by Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount and no Obligor, however, makes any representation as to the
ability of any Company to achieve the results set forth in any such projections.
Borrower understands that all such statements, representations and warranties
shall be deemed to have been relied upon by the Lenders as a material inducement
to make each extension of credit hereunder. As of the Closing Date, there is no
fact known to any Obligor (other than general economic conditions, which
conditions are commonly known and affect businesses generally) that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Credit Documents or in any other
documents, certificates and statements furnished to Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Credit Documents.
8.19. Solvency; Etc. As of the Closing Date immediately prior to
--------------
and immediately following the consummation of the transactions contemplated
hereby and the extensions of credit to occur on such date each Obligor is and
will be Solvent (after giving effect to Section 6.08). Borrower believes that no
reasonably anticipated final judgment in a pending Proceeding or, to its
knowledge, any threatened Proceeding for money damages will be rendered at a
time when, or in an amount such that, any Company will be unable to satisfy such
judgments promptly in accordance with their terms (taking into account the
maximum reasonable amount thereof and the earliest reasonable time at which such
judgments might be rendered). The cash available to each Company, after taking
into account all other anticipated uses of cash (including the payment of all
such Company's Indebtedness) is anticipated to be sufficient to pay any such
judgments promptly in accordance with their terms. No Company is contemplating
either the filing of a petition by it under any state or federal bankruptcy or
insolvency laws or the liquidating of all or a substantial portion of its
property, and Borrower has no knowledge of any Person contemplating the filing
of any such petition against any Company.
-78-
8.20. Contracts. No Company is in default under any material
----------
contract or agreement to which it is a party or by which it is bound, nor, to
Borrower's knowledge, does any condition exist that, with notice or lapse of
time or both, would constitute such default, excluding in any case such defaults
that could not reasonably be expected to have a Material Adverse Effect.
Schedule 8.20 accurately and completely lists (x) all agreements, if any, among
-------------
the stockholders (or any of their Affiliates other than any Company) of Borrower
on the one hand and any Company on the other in effect on the date hereof and
all (y) material agreements which are in effect on the date hereof in connection
with the conduct of the business of the Companies.
8.21. Labor Matters. Except as set forth in Schedule 8.21 there
-------------- -------------
are no strikes or other labor disputes against any Company pending or, to the
knowledge of Borrower, threatened which could reasonably be expected to have a
Material Adverse Effect. Hours worked by and payments made to employees of the
Companies have not been in violation of the Fair Labor Standards Act or any
other applicable Requirements of Law dealing with such matters that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. To the knowledge of Borrower, all payments due from any
Company on account of employee health and welfare insurance that (individually
or in the aggregate) could reasonably be expected to have a Material Adverse
Effect if not paid have been paid or accrued as a liability on the books of the
relevant Company.
8.22. Year 2000. Each Company has reviewed their operations with a
----------
view to assessing whether their business or operations will, in the receipt,
transmissions, processing, manipulation, storage, retrieval, retransmission or
other utilization of data, be vulnerable to any significant risk that computer
hardware, software or any equipment containing embedded microchips used in their
business or operations will not in the case of dates or time periods occurring
after December 31, 1999 function at least as effectively as in the case of dates
or time periods occurring prior to January 1, 2000. No Company has reason to
believe that the risks associated with the Year 2000 issue could reasonably be
expected to have a Material Adverse Effect.
Section 9. Covenants. Each Obligor, for itself and on behalf of its
----------
Subsidiaries and its Unrestricted Subsidiaries, covenants and agrees with the
Creditors that, so long as any Commitment, Loan or Letter of Credit Liability is
outstanding and until payment in full of all amounts payable by Borrower
hereunder:
9.01. Financial Statements, Etc. The Companies shall deliver to
--------------------------
Administrative Agent and each of the Lenders:
(a) Quarterly Financials. As soon as available and in any event within
---------------------
45 days after the end of each of the first three quarterly fiscal periods
of each fiscal year beginning with the fiscal quarter ending September 30,
1998, consolidated statements of operations, cash flows and stockholders'
equity of Borrower and its Consolidated Subsidiaries for such period and
for the period from the beginning of the respective fiscal year to the end
of such period, and the related consolidated balance sheet of Borrower and
its Consolidated Subsidiaries as at the end of such period, setting forth
in each case in comparative form (i) the corresponding consolidated
statements of operations, cash flows and stockholders' equity for the
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corresponding period in the preceding fiscal year and (ii) the
corresponding budget or plan for such period, accompanied by a certificate
of a Responsible Officer of Borrower, which certificate shall state that
said consolidated financial statements fairly present the consolidated
financial condition, results of operations and cash flows of Borrower and
its Consolidated Subsidiaries in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal year-end
audit adjustments);
(b) Annual Financials. As soon as available and in any event within 90
------------------
days after the end of each fiscal year beginning with the fiscal year
ending December 31, 1998, consolidated and consolidating statements of
operations, cash flows and stockholders' equity of Borrower and its
Consolidated Subsidiaries for such year and the related consolidated and
consolidating balance sheet of Borrower and its Consolidated Subsidiaries
as at the end of such year, setting forth in each case in comparative form
(i) the corresponding consolidated and consolidating information as of the
end of and for the preceding fiscal year and (ii) the corresponding budget
or plan for such period, and accompanied by an opinion, without
qualification or exception, thereon of independent certified public
accountants of recognized national standing reasonably acceptable to the
Lenders, which opinion shall state that said consolidated and consolidating
financial statements fairly present the consolidated and consolidating
financial condition, results of operations and cash flows of Borrower and
its Consolidated Subsidiaries as at the end of, and for, such fiscal year
in accordance with GAAP, consistently applied and a certificate of such
accountants stating that, in making the examination necessary for their
opinion, they obtained no knowledge of any Default; Borrower shall supply
such additional information and detail as to any item or items contained on
any such statement that Lenders may reasonably require; all such
information will be prepared in accordance with GAAP consistently applied;
(c) [reserved];
(d) Other Financial Information. Promptly upon delivery thereof to the
----------------------------
holders of any debt securities or the stockholders of any Company
generally, copies of all financial statements and reports and proxy
statements so delivered, and at the time the same are filed, copies of all
financial statements and reports which any Company may make to or file with
the Commission or any successor or analogous Governmental Authority;
(e) Interest Rate Certificates. Together with the financial statements
---------------------------
delivered pursuant to clause (a) or (b) of this Section 9.01, an Interest
Rate Certificate;
(f) Notice of Default. Promptly after any Company knows or has reason
------------------
to believe that any Default has occurred or that any Company is in default
of any material term or provision of the any other material Contractual
Obligation (other than pursuant to the Credit Documents), a notice of such
Default describing the same in reasonable detail and, together with such
notice or as soon thereafter as possible, a description of the action that
Borrower has taken and proposes to take with respect thereto;
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(g) Environmental Matters. Written notice of any Environmental Claim
----------------------
materially affecting any Company or any Unrestricted Subsidiary, any
Mortgaged Real Property or the operations of any Company, and any notice
from any Person of (i) the occurrence of any release, spill or discharge of
any Hazardous Material that is reportable under any Environmental Law, (ii)
the commencement of any clean-up pursuant to or in accordance with any
Environmental Law of any Hazardous Material at, on, under or within the
Mortgaged Real Property or any part thereof, (iii) any matters relating to
Hazardous Materials or Environmental Laws that may impair, or threaten to
impair, Lenders' security interest in the Mortgaged Real Property or any
Obligor's ability to perform any of its obligations under this Agreement
when such performance is due or (iv) any other condition, circumstance,
occurrence or event, any of which could reasonably be expected to result in
a material liability of any Company or any Unrestricted Subsidiary under
any Environmental Law;
(h) Auditors' Reports. Promptly upon receipt thereof, copies of all
------------------
reports submitted to any Company by independent certified public
accountants in connection with each annual, interim or special audit of
such Company's books made by such accountants, including, without
limitation, any management letter commenting on any Company's internal
controls submitted by such accountants to management in connection with
their annual audit;
(i) Annual Budgets. An annual operating and capital improvements
---------------
budget of Borrower and the Subsidiaries in reasonable detail and financial
projections made in good faith, within 60 days after the end of each fiscal
year of Borrower;
(j) Lien Matters. Written notice of (1) the incurrence of any Lien
-------------
(other than Prior Liens and other Liens expressly permitted by the terms of
the applicable Security Document) on, or claim asserted against any of the
Collateral or (2) the occurrence of any other event which could reasonably
be expected to adversely affect the aggregate value of the Collateral;
(k) Notice of Material Adverse Effect. Written notice of the
----------------------------------
occurrence of any Material Adverse Effect or any event or condition which
could reasonably be expected to result in any Material Adverse Effect;
(1) Governmental Filings and Notices. Promptly after request by
---------------------------------
Administrative Agent, copies of any other reports or documents that were
filed by any Company with any Governmental Agency and copies of any and all
material notices and other material communications from any Federal, state
or local Governmental Authority with respect to any Company;
(m) ERISA Information. Written notice of the occurrence of any ERISA
------------------
Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability to the
Companies in an aggregate amount exceeding $2.0 million;
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(n) Reserve Reports. As soon as available and in any event within 30
----------------
days after the end of each fiscal year, a reserve report in form and
substance satisfactory to the Administrative Agent, and copies of all Coal
Sales Agreements of the Companies, not theretofore delivered to the
Administrative Agent as well as copies of any amendments or modifications
to any Coal Supply Contracts of the Companies not theretofore delivered to
Agent and such other information as the Administrative Agent may request.
(o) [reserved]
(p) Miscellaneous. Promptly, such financial and other information with
--------------
respect to any Obligor or Subsidiary, as any Creditor may from time to time
reasonably request.
(Borrower will furnish to Administrative Agent and each of the
Lenders:
(i) concurrently with the delivery of the financial statements
referred to in Section 9.01(b), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default relating to the covenants contained in
Section 9.11, except as specified in such certificate; and
(ii) at the time it furnishes each set of financial statements
pursuant to paragraph (a) or (b) above, (1) a certificate of a senior
financial officer of Borrower (1) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing
the action that Borrower has taken and proposes to take with respect
thereto), (11) specifying whether or not any Unrestricted Subsidiary
has been created or acquired since the last such certificate and (111)
setting forth in reasonable detail the computations necessary to
determine whether each Company is in compliance with Sections 9.07,
9.08, 9.09, 9. 10 and 9.11 as of the end of the respective quarterly
fiscal period or fiscal year, (2) to the extent not previously
disclosed to Administrative Agent, a listing of any state within the
United States where any Obligor keeps inventory or equipment and of
any licenses arising under the laws of the United States (or any
jurisdiction therein) acquired by any Obligor since the date of the
most recent list delivered pursuant to this clause (II) (or, in the
case of the first such list so delivered, since the Closing Date), and
(3) any final accountants' management letters delivered by the
independent certified public accountants reporting on such financial
statements to Borrower or any Subsidiary.
9.02. Litigation, Etc. Borrower shall promptly give to
----------------
Administrative Agent and each Lender notice of all Proceedings, and any material
development thereof, affecting any Company, except Proceedings which could not
reasonably be expected to have a Material Adverse Effect.
9.03. Existence, Compliance with Law: Payment of Taxes: Inspection
------------------------------------------------------------
Rights: Performance of Obligations, Etc. Each Company shall (i) preserve and
----------------------------------------
maintain its legal existence and all of its material rights, privileges and
franchises; provided, however, that nothing in this Section 9.03
--------- --------
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shall prohibit any transaction expressly permitted under Section 9.06, (ii)
comply with all applicable Requirements of Law of Governmental Authorities,
except to the extent that the failure to do so could not reasonably be expected
to have a Material Adverse Effect, (iii) timely file true, accurate and complete
tax returns required by all Governmental Authorities and pay and discharge all
material taxes, assessments and governmental charges or levies imposed on it or
on its income or profits or on any of its Property prior to the date on which
penalties attach thereto (except for any such tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained in accordance with
GAAP); (iv) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted, except to the
extent that the failure to do so with respect to any such Property could not
reasonably be expected to have a Material Adverse Effect; (v) permit
representatives of any Creditor upon reasonable prior notice, during normal
business hours, to examine, copy and make extracts from its books and records,
to inspect its Properties, and to discuss its business and affairs with its
officers and employees and with the independent accountants of each Company, all
to the extent reasonably requested by such Creditor, provided however that
Administrative Agent or such Lender shall notify Borrower prior to any contact
with such accountants and give Borrower the opportunity to participate in such
discussions; (vi) allow the Agents to consult with Borrower's independent public
accountants and auditors with respect to the financial affairs of the Companies
and authorize such accountants to disclose to the Agents and the Lenders any and
all financial statements and other supporting financial documents and schedules
including copies of any management letter with respect to the business,
financial condition and other affairs of the Companies; at the request of the
Agents, Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this Section 9.03(vi); (vii)
perform in all material respects all of its Contractual Obligations, except
where such failure to so perform, singly or in the aggregate with all other such
failures, could not reasonably be expected to have a Material Adverse Effect;
and (viii) keep proper books of record and accounts, in which full and correct
entries shall be made of all financial transactions and the Property and
business of each Company in accordance with GAAP in effect from time to time or
as otherwise required by applicable rules and regulations of any Governmental
Authority having jurisdiction over such Company.
9.04. Insurance. (A) Each Company shall maintain, with financially
----------
sound and reputable insurers, insurance of the kinds and in the amounts
customarily insured against by companies engaged in the same or similar business
and similarly situated and carry such other insurance as is appropriate for such
Company. Each Company shall pay all insurance premiums payable by them as and
when due.
(B) All policies of insurance required to be maintained by any Company
must name Administrative Agent, on behalf of the Lenders and Agents, as
mortgagee (in the case of property insurance) or additional insured (in the case
of liability insurance), as applicable, or certificate holder (in the case of
workers' compensation insurance) and must provide that no cancellation, non-
renewal or modification (including reduced coverage) of the policies will be
made without thirty days' prior written notice to Administrative Agent and if
the insurance carrier shall have received written notice from Administrative
Agent of the occurrence of an Event of Default, the insurance carrier shall pay
all proceeds otherwise payable to any Company under such policies directly to
Administrative Agent.
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(C) The Obligors shall give immediate written notice of any loss in
excess of $5.0 million to the insurance carrier and to Administrative Agent.
Each Obligor on behalf of itself and its Subsidiaries hereby irrevocably
authorizes and empowers Administrative Agent, as its attorney-in-fact coupled
with an interest, if any Default shall have occurred or such loss is reasonably
likely to be materially adverse to the Lenders, to make proof of loss, to adjust
and compromise any claim under insurance policies, to appear in and prosecute
any action arising from such insurance policies, to collect and receive
insurance proceeds, and to deduct therefrom Administrative Agent's expenses
incurred in the collection of such proceeds. Nothing contained in this Section
9.04(C), however, shall require Administrative Agent to incur any expense or
take any action hereunder.
(D) Each policy of insurance obtained or maintained by any Company
shall: (i) be written by financially responsible companies selected by Borrower
and having an A.M. Best rating of "A" or better and being in a financial size
category of XII or larger, or by other companies reasonably acceptable to
Administrative Agent; (ii) waive all rights of subrogation of the insurers
against the Creditors; (iii) waive any right of the insurers to set-off or
counterclaim or to make any other deduction, whether by way of attachment or
otherwise, as against any Creditor; (iv) waive all claims for insurance premiums
or commissions or additional premiums or assessments against the Creditors; and
(v) provide that, except in the case of third-party liability insurance, the
proceeds of any loss affecting any Property which is Collateral (including Real
Property) or interests therein shall be applied in accordance with the terms of
this Agreement and all applicable Security Documents.
(E) Borrower will advise Administrative Agent promptly of any material
policy cancellation, reduction or amendment.
(F) Borrower will not and will not permit any Subsidiary to materially
modify any of the provisions of any policy with respect to casualty insurance
without delivering the original copy of the endorsement reflecting such
modification to Administrative Agent.
(G) If at any time any Covered Property on which significant surface
Improvements (as determined in the reasonable discretion of the Agent) exist is
located in an area which is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), Borrower shall obtain flood insurance in such total amount as
Administrative Agent or the Majority Lenders may from time to time reasonably
require, and otherwise comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973, as amended from time to
time, or (ii) a "Zone I" area, Borrower shall obtain earthquake insurance in
such total amount as Administrative Agent or the Majority Lenders may reasonably
require, in the case of each of clauses (i) and (ii), to the extent such risks
are customarily insured against by owners of property comparable to and in the
same geographic area as the applicable Covered Property and such insurance is
available at commercially reasonable rates.
9.05. Limitation on Lines of Business; Limitation on Management
---------------------------------------------------------
Agreements. No Company shall directly or indirectly, engage to any material
-----------
extent in any line or lines of business activity other than the business of the
type conducted by Borrower and the Subsidiaries as of the Closing Date or any
business related, ancillary or complementary thereto. No Company shall, directly
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or indirectly, turn over the management of its Properties, rights, licenses and
franchises to any Person other than a full-time employee of the Companies or
enter into any management or similar agreement with any Person.
9.06. Limitation on Fundamental Changes, Acquisitions or
--------------------------------------------------
Dispositions. No Company shall, directly or indirectly, in a single transaction
-------------
or series of transactions, (1) merge, consolidate or amalgamate with or into any
Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), (2) effect any Acquisition, or (3) effect any Disposition (or
agree to do any of the foregoing). Notwithstanding the foregoing provisions of
this Section 9.06, each of the following shall be permitted:
(a) purchases and sales of Property in the ordinary course of
business;
(b) the pledge of the Collateral pursuant to the Security Documents;
(c) the merger, consolidation, dissolution or liquidation of (1) any
Subsidiary with or into (i) Borrower if Borrower shall be the continuing or
surviving corporation or (ii) any Qualified Subsidiary if a Qualified
Subsidiary shall be the continuing or surviving corporation, and (2) any
Subsidiary which is not a Qualified Subsidiary with or into any other
Subsidiary which is not a Qualified Subsidiary;
(d) Dispositions by any Subsidiary to Borrower or to any Qualified
Subsidiary;
(e) Dispositions of used, worn out, obsolete or surplus Property by
any Company in the ordinary course of business;
(f) sale or discount, in each case without recourse, of accounts
receivable past due arising in the ordinary course of business, but only in
connection with the compromise or collection thereof; provided, however,
-------- -------
that in no event may any Company enter into any factor in with respect to
receivables;
(g) In addition to any other Dispositions permitted by this Agreement,
Borrower or any Subsidiary may effect any Disposition for fair market value
resulting in gross proceeds not to exceed $50.0 million in the aggregate in
any fiscal year of Borrower and $200.0 million since the Closing Date;
provided, however, that in each case, the Net Available Proceeds therefrom
-------- -------
are reinvested as specified in Section 2.1(a)(iv) or applied to the
prepayment of the Loans as specified in Section 2.10(a)(iv);
(h) Acquisitions by Borrower or any Qualified Subsidiary of any Person
engaged in or any Property used in the coal business; provided, however,
-------- --------
that each Acquisition under this Section 9.06(h) shall satisfy each of the
following conditions:
(i) no Default then exists or would result therefrom;
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(ii) after giving pro forma effect to such Acquisition, (1)
Borrower shall be in compliance with all covenants set forth in
Section 9.11 as of the most recent Test Date (assuming, for purposes
of Section 9.11, that such Acquisition, and all other Permitted
Acquisitions consummated since the first day of the relevant
measurement period for each financial covenant set forth in Section
9.11 ending on such last day, had occurred on the first day of such
relevant measurement period), and (2) Borrower and the Subsidiaries
can reasonably be expected to remain in compliance with such covenants
through the Final Maturity Date and to have sufficient cash liquidity
to conduct their respective business and pay their respective debts
and other liabilities as they come due;
(iii) no Company shall, in connection with any such Acquisition,
assume or remain liable with respect to any Indebtedness or other
liability (including any material tax or ERISA liability) of the
related seller, except (1) to the extent permitted under Section 9.08,
and (2) obligations of the seller incurred in the ordinary course of
business and necessary or desirable to the continued operation of the
underlying properties, and any other such liabilities or obligations
not permitted to be assumed or otherwise supported by any of the
Companies hereunder shall be paid in full or released as to the assets
being so acquired on or before the consummation of such Acquisition;
(iv) the Properties acquired in connection with any such
Acquisition shall be free and clear of any Liens, other than Permitted
Liens (or, in the event such Properties shall constitute Additional
Collateral or Real Property required, pursuant to the provisions of
Section 9.12, to be pledged to Administrative Agent, Liens of the type
that would constitute Prior Liens under the Security Documents
executed and delivered on the date hereof);
(v) the board of directors of the acquired Person shall not have
indicated publicly its opposition to the consummation of such
Acquisition;
(vi) such Acquisition shall be effected through Borrower or a
Qualified Subsidiary and the Person acquired shall be merged with or
into a Qualified Subsidiary or shall be at the time of consummation
thereof a Qualified Subsidiary;
(vii) with respect to any Acquisition involving Acquisition
Consideration of more than $25.0 million, Borrower shall have provided
the Agents and the Lenders with (1) historical financial statements
for the last three fiscal years of the Person or business to be
acquired (audited if available without undue cost or delay) and
unaudited financial statements thereof for the most recent interim
period which are available, (2) reasonably detailed projections for
the succeeding five years pertaining to the Person or business to be
acquired, (3) a reasonably detailed description of all material
information relating thereto and copies of all material documentation
pertaining to such Acquisition, and (4) all such other information and
data relating to
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such Acquisition or the Person or business to be acquired as may be
reasonably requested by the Agents or the Majority Lenders;
(viii) Borrower shall have delivered to the Agents and the
Lenders an Officers' Certificate certifying that (1) such Acquisition
complies with this Section 9.06(h) (which shall have attached thereto
reasonably detailed backup data and calculations showing such
compliance), and (2) such Acquisition shall not have a Material
Adverse Effect; and
(ix) the Acquisition Consideration (other than Equity Issuances)
for such Acquisition shall not exceed $100.0 million, and the
aggregate amount of the Acquisition Consideration (other than Equity
Issuances) for all Acquisitions effected pursuant to this Section
9.06(h) since the Closing Date shall not exceed $200.0 million.
(i) transfers resulting from any casualty or condemnation of Property;
(j) licenses or sublicenses by any Company of software, trademarks and
other intellectual property and general intangible and leases, licenses or
subleases of other property in the ordinary course of business and which do
not materially interfere with the business of any Company;
(k) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business of any Company;
(1) the making of Investments permitted by Section 9.09 and the
liquidation in the ordinary course of business of (A) Permitted Investments
and (B) Investments made pursuant to Sections 9.09(A)(a) and 9.09(A)(b);
(m) Acquisitions by Borrower or any Subsidiary of any new Subsidiary;
provided however that (1) the sole consideration provided therefor by the
Companies is common Equity Interests of Borrower, and (2) such Acquisition
shall comply with each of clauses (i), (ii), (iii), (iv), (v), (vii) and
(viii) of Section 9.06(h) (with references therein to Section 9.06(h) being
deemed references to this Section 9.06(m));
(n) the restructuring, renegotiation or termination of any Coal Supply
Agreement resulting in Borrower or its Restricted Subsidiaries receiving in
a single transaction, or series of related transactions, cash proceeds of
no greater than $50.0 million.
To the extent the Majority Lenders waive the provisions of this Section 9.06
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 9.06
(other than to any Company), such Collateral in each case shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents and Administrative Agent shall take such actions as are appropriate in
connection therewith.
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9.07. Limitation on Liens and Negative Pledges. No Company shall,
-----------------------------------------
directly or indirectly, create, incur, assume or suffer to exist any Lien upon
or with respect to any Collateral except for Prior Liens and other Liens
expressly permitted by the terms of the applicable Security Documents. No
Company shall, directly or indirectly, create, incur, assume or suffer to exist
any Lien upon any of their respective Property that does not constitute
Collateral, whether now owned or hereafter acquired, or sell any such Property
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property (including the sale of accounts receivable with recourse to any
Company) or assign any right to receive income, except for Liens expressly
permitted by the applicable Security Document and except for the following,
which are herein collectively referred to as "Permitted Liens":
---------------
(a) Liens in existence on the Amendment and Restatement Date and
identified in Schedule 9.07 which Liens are reasonably acceptable to the
-------------
Agents;
(b) Liens imposed by any Governmental Authority for taxes, assessments
or charges not yet due or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Companies, in accordance with GAAP;
(c) Liens imposed by law which were incurred in the ordinary course of
business, such as carriers', warehousemen's, landlords' and mechanics'
Liens and other similar Liens arising in the ordinary course of business,
in each case for sums the payment of which is not required by Section 9.03;
(d) pledges or deposits under workers' compensation, unemployment
insurance and other social security legislation or the deposits securing
the liability to insurance carriers;
(e) pledges or deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(f) The following encumbrances which do not, in any case, individually
or in the aggregate, materially detract from the value of any Mine Site or
Shipyard Property subject thereto or interfere with the ordinary conduct of
the business or operations of any Company as presently conducted on or with
respect to such Mine Site or Shipyard Property:
(i) encumbrances typically found upon Real Property used for
mining purposes in the applicable jurisdiction in which the applicable
Real Property is located to the extent such encumbrances would be
permitted or granted by a prudent operator of mining property similar
in use and configuration to such Real Property (i.e., surface rights
agreements, wheelage agreements and reconveyance agreements);
(ii) rights and easements of owners (i) of undivided interests in
any of the Real Property where the applicable Company owns less than
100% of the fee interest,
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(ii) of interests in the surface of any Real Property where the
applicable Company does not own or lease such surface interests, (iii)
and lessees, if any, of coal or other minerals (including oil and gas)
where the applicable Company does not own such coal or other minerals,
and (iv) and lessees of other coal seams and other minerals (including
oil and gas) not owned or leased by such Company; provided however
-------- -------
that the rights and easements described in clauses (i) through (iv) of
this subclause (b) shall in no event cause any breach of the
----------
representations made in Section 8.15(b);
---------------
(iii) easements, rights-of-way, restrictions or minor defects or
irregularities in title incurred in the ordinary course of business
and encumbrances consisting of zoning restrictions, easements,
licenses or restrictions on the use of the Real Property or minor
imperfections in title thereto;
(iv) with respect to any Real Property in which any Company holds
a leasehold interest, terms, agreements, provisions, conditions, and
limitations (other than royalty and other payment obligations which
shall be permitted hereunder in accordance with the provisions of
Section 9.07(f)(vi)) contained in the leases granting such leasehold
interest and the rights of lessors thereunder (and their heirs,
executors, administrators, successors, and assigns);
(v) farm, grazing, hunting, recreational and residential leases
with respect to which any Company is the lessor encumbering portions
of the Real Properties to the extent such leases would be granted or
permitted by, and contain terms and provisions that would be
acceptable to, a prudent operator of mining properties similar in use
and configuration to such Real Properties;
(vi) royalty and other payment obligations to sellers or
transferors of fee coal or lease properties to the extent such
obligations constitute a lien not yet delinquent;
(vii) rights of others to subjacent or lateral support and
absence of subsidence rights; and
(viii) rights of repurchase or reversion when mining and
reclamation are completed.
(g) Liens upon tangible personal Property acquired after the Closing
Date by Borrower or any Subsidiary, each of which Liens either (A) existed
on such Property before the time of its acquisition and was not created in
anticipation thereof, or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance or refinance, the cost of
such Property or improvements thereon; provided however, that (1) no such
-------- -------
Lien shall extend to or cover any Property of any Company other than the
Property so acquired and improvements thereon, and (2) the principal amount
of Indebtedness secured by any such Lien shall at no time exceed 100% of
the fair market value of such Property at the time it was acquired;
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(h) Liens existing on any Property of any Person at the time such
Person becomes a Subsidiary or is merged or consolidated with or into a
Subsidiary and, in each case, not created in contemplation of or in
connection with such event; provided however, that such Liens do not extend
to any other Property of any Company;
(i) Liens not otherwise permitted hereunder securing obligations of
any Company at any time not exceeding in the aggregate $10.0 million;
(j) Liens securing obligations under Swap Contracts with any Lender or
any Affiliate of a Lender to the extent such Swap Contracts relates to the
Obligations and only so long as the Obligations are secured by the same
collateral on a pari passu basis;
---- -----
(k) Liens consisting of judgment or judicial attachment Liens
(including prejudgment attachment) in existence less than 45 days after the
entry thereof or the enforcement of which is effectively stayed or payment
of which is covered in full (subject to a customary deductible) by
insurance or which do not otherwise result in an Event of Default under
Section 10(h);
(1) Liens securing obligations in respect of Capital Leases solely on
Property subject to such Capital Leases;
(m) any obligations or duties affecting any of the Property of any
Company to any municipality or public authority with respect to any
franchise, grant, license or permit which do not materially impair the use
of such Property for the purposes for which it is held;
(n) leases or subleases granted to third Persons not interfering in
any material respect with the business of any Company;
(o) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(p) any interest or title of a lessor or sublessor under any lease
permitted by this Agreement;
(q) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods so long as such Liens attach only to the imported
goods;
(r) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by any Company in the ordinary course of
business;
(s) Liens created under this Agreement and/or the other Credit
Documents; and
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(t) any extension, renewal or replacement of the foregoing; provided,
--------
however, that the Liens permitted by this Section 9.07(t) shall not cover
-------
any additional Indebtedness or Property (other than like Property
substituted for Property covered by such Lien).
Except with respect to (i) specific Property encumbered pursuant to a
Lien permitted to be incurred pursuant to this Section 9.07 or (ii) specific
Property to be sold pursuant to an executed agreement with respect to a
Disposition consummated in accordance with this Agreement, no Company will
directly or indirectly, enter into any agreement on or after the Closing Date
prohibiting or restricting in any manner (directly or indirectly and including
by way of covenant, representation or warranty or event of default) the creation
or assumption of any Lien upon its Property, whether now owned or hereafter
acquired, except pursuant to the Credit Documents, the Bridge Loan Agreement and
any Permitted Refinancings thereof.
9.08. Prohibition on Disqualified Capital Stock, Limitation on
--------------------------------------------------------
Indebtedness and Contingent Obligation. Except as provided below, no Company
---------------------------------------
shall directly or indirectly issue or permit to be outstanding any Disqualified
Capital Stock, other than Disqualified Capital Stock issued to and held by
Borrower or any Qualified Subsidiary. No Company will incur any Indebtedness or
Contingent Obligation (other than the Loans) which contains any direct or
indirect default, prepayment event, redemption event, repurchase or mandatory
offer to purchase event upon the occurrence or failure to occur of any event or
circumstance relating to any Unrestricted Subsidiary. No Company shall, directly
or indirectly, incur any Indebtedness or any Contingent Obligation, except (each
of which shall be given independent effect):
(a) the Loans and the other Obligations (including the Guarantees)
under the Credit Documents;
(b) Existing Debt and Contingent Obligations outstanding on the
Amendment and Restatement Date and listed in Schedule 9.08 and specified on
-------------
Schedule 9.08 as to remain outstanding after the Amendment and Restatement
-------------
Date (less the aggregate amount of any permanent prepayments or repayments
thereof) and Permitted Refinancings thereof,
(c) Indebtedness and Contingent Obligations of Borrower or any
Subsidiary owing to Borrower or any Qualified Subsidiary; provided however,
-------- --------
that (1) if requested by the Majority Lenders, such Indebtedness shall be
evidenced by an Intercompany Note which shall be pledged to Administrative
Agent on behalf of the Lenders pursuant to the Security Agreement, and (2)
such Indebtedness and Contingent Obligations shall not be held by any
Person other than Borrower or a Qualified Subsidiary and shall not be
subordinate to any other Indebtedness or Contingent Obligations or other
obligation of the obligor unless also subordinated to the Loans on terms no
less favorable to the Lenders than that of any other creditor;
(d) Contingent Obligations in respect of operating leases;
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(e) Indebtedness and Contingent Obligations arising from honoring a
check, draft or similar instrument against insufficient funds; provide
however that such Indebtedness is extinguished within two Business Days of
its incurrence;
(f) Swap Contracts entered into in the ordinary course of business and
designed to protect the Obligors against fluctuations in interest rates,
currency exchange rates, or similar risks (including any Interest Rate
Protection Agreement entered into pursuant to Section 9.18);
(g) Contingent Obligations of Borrower or any Qualified Subsidiary in
respect of Indebtedness or other liabilities of Borrower or any Subsidiary
to the extent that the existence of such Indebtedness or other liabilities
is not prohibited under this Agreement;
(h) Contingent Obligations in connection with Dispositions permitted
under Section 9.06, arising in connection with indemnification and other
agreements in respect of any contract relating to such Disposition, not to
exceed the consideration received by Borrower or any Subsidiary in
connection with such sale and excluding, however, in all cases any
Contingent Obligation with respect to any obligation of any third person
incurred in connection with the acquisition of the Property which is the
subject of such Disposition;
(i) Indebtedness and Contingent Obligations of Borrower and the
Subsidiaries (including Permitted Refinancings thereof) secured by Liens
permitted under Section 9.07(g) or (1) (and extensions, renewals or
replacements thereof pursuant to Section 9.07 (v)) not exceeding (together
with any Permitted Refinancing thereof) $50.0 million in the aggregate at
any time outstanding for Borrower and the Subsidiaries collectively;
(j) Indebtedness of a corporation which becomes a Subsidiary after the
date hereof; provided however, that (1) such Indebtedness existed at the
-------- -------
time such corporation became a Subsidiary and was not created in connection
with or in anticipation thereof, (2) immediately after giving effect to the
acquisition of such corporation by Borrower no Default shall have occurred
and be continuing, and (3) the aggregate amount of Indebtedness outstanding
at any time pursuant to this Section 9.080) shall not exceed $100.0 million
for all Subsidiaries;
(k) unsecured Indebtedness, Contingent Obligations and Disqualified
Capital Stock incurred by Borrower, and any Permitted Refinancing thereof,
not to exceed $50.0 million in the aggregate at any time outstanding;
(l) Indebtedness of Borrower in an aggregate principal amount not to
exceed $25.0 million which is subordinated to the Loans pursuant to
documentation satisfactory to the Agents issued as part of the Acquisition
Consideration for any Acquisition permitted by Section 9.06(h);
(m) the 101/2% Senior Notes due 2005 of AEI in an aggregate principal
amount not to exceed $200.0 million;
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(n) Indebtedness under the Bridge Loan Agreement in an aggregate
principal amount not to exceed $45.0 million and Permitted Refinancings
thereof;
(o) until February 28, 1999, Contingent Obligations under the Letter
of Credit Agreements in an aggregate face amount not to exceed $6.0
million; and
(p) the 11 1/2% Senior Subordinated Notes due 2006 of Borrower in an
aggregate principal amount not to exceed $150,000,000.
All intercompany debt shall be unsecured and subordinate in right of
payment (to the same extent as the subordination provisions set forth in Exhibit
-------
B hereto) to the Obligations. Each Obligor, by its execution and delivery of
-
this Agreement, hereby agrees to subordinate its right of payment under any
intercompany debt owed to it by Borrower or any Subsidiary to the full and
complete payment and performance of the Obligations. No Obligor shall incur any
Subordinated Indebtedness unless such Subordinated Indebtedness shall be
subordinated to the Obligations at least to the same extent and for so long as
such Subordinated Indebtedness is subordinated to such other Indebtedness
pursuant to documentation reasonably acceptable to the Agents.
9.09. Limitation on Investments; Limitation on Creation of
----------------------------------------------------
Subsidiaries and Unrestricted Subsidiaries. (A) No Company shall, directly or
-------------------------------------------
indirectly, make or permit to remain outstanding any Investments, except:
(a) operating deposit accounts and certificates of deposit with banks
in the ordinary course of business;
(b) Permitted Investments;
(c) Investments by (1) Borrower or any Subsidiary in any Qualified
Subsidiary or in any Subsidiary if as a result thereof or in connection
therewith such Subsidiary becomes a Qualified Subsidiary (provided that no
Investment will be permitted in respect of any Subsidiary with respect to
which Borrower has not complied with Section 9.20), and (2) any Subsidiary
in Borrower;
(d) Investments outstanding on the Closing Date and identified with
particularity in Schedule 9.09 and any renewals, amendments and
-------------
replacements thereof that do not increase the amount thereof;
(e) Investments that constitute Indebtedness or Contingent Obligations
permitted under Section 9.08;
(f) advances, loans or extensions of credit by any Company to (1)
employees of any Company; provide however that the aggregate amount of all
such loans, advances and extensions of credit (other than pursuant to
clause (2) of this Section 9.09(f)) shall not at any time exceed in the
aggregate $5.0 million (without giving effect to any write-down or write-
off thereof), and (2) employees of any Company in connection with stock
option plans
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so long as (x) such loans do not involve cash payments by any Company and
(y) no Company incurs any obligations at any time to repurchase the stock
so purchased;
(g) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(h) pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security or similar legislation;
(i) pledges or deposits in connection with (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money),
leases or statutory obligations, (ii) contingent obligations on surety or
appeal bonds, and (iii) other non-delinquent obligations of a like nature,
in each case incurred in the ordinary course of business;
(j) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(k) Borrower and the Subsidiaries may hold additional Investments in
any Subsidiary which is not a Qualified Subsidiary to the "tent that such
Investments reflect an increase in the stockholders' equity of such
Subsidiary resulting from retained earnings of such Subsidiary;
(1) Capital Expenditures permitted by Section 9.11 (d);
(m) Investments by any Company in any Subsidiary which is not a
Qualified Subsidiary to the extent made in the ordinary course to fund or
support the ordinary course operations of such Subsidiary so long as no
Default shall have occurred and be continuing; provided, however that (1)
-------- -------
the amount of such Investments made pursuant to this clause (m) shall not
exceed $5.0 million in the aggregate outstanding at any time (without
giving effect to any write-down or write-off thereof), and (2) upon the
request of the Majority Lenders all such Investments in excess of $1.0
million shall be evidenced by Intercompany Notes, which shall be pledged to
Administrative Agent pursuant to the Security Agreement;
(n) Borrower or any Subsidiary may hold the Equity Interests of any
Subsidiary existing on the Closing Date or created or acquired thereafter
in accordance with the provisions hereof and any additional Equity
Interests issued in exchange therefor or as a dividend thereon;
(o) Investments consisting of non-cash consideration received in the
form of securities, notes or similar obligations in connection with any
Disposition; provided, however, that (1) the aggregate amount of such non-
-------- --------
cash consideration received in connection with any such Disposition shall
not exceed 20% of the total consideration received in connection
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with any such Disposition if the total consideration received in connection
with such Disposition exceeds $5.0 million, and (2) such non-cash
consideration is pledged pursuant to the appropriate Security Document;
(p) Investments made in order to consummate Acquisitions permitted by
Section 9.06(h) and Acquisitions effected in accordance with Section
9.06(n);
(q) Investments consisting of loans to the purchaser of Triton, in an
aggregate principal amount not to exceed $20.0 million (plus any additional
amounts added thereto for accrued interest and fees);
(r) Investments (other than any direct or indirect Guaranty Obligation
in respect of any Indebtedness, Contingent Obligation or other liabilities
or obligations) by Borrower in any Unrestricted Subsidiary with the portion
of the Net Available Proceeds of any Equity Issuance not required to be
applied to the prepayment of the Loans pursuant to Section 2.10(a)(ii) and
not previously expended pursuant to Section 9.09(r); provided, however,
-------- --------
that (1) Borrower shall be in compliance with Section 9.09(D) with respect
to any Unrestricted Subsidiary in which such Investment is being made, (2)
at the time of making any such Investment no Default shall exist or would
arise therefrom, (3) no such Investment shall be permitted to be made until
after the pot portion of the Net Available Proceeds of such Equity Issuance
required to be applied to the prepayment of the Loans pursuant to Section
2.10(a)(ii) shall have been applied to the prepayment of the Loans, and (4)
such Investments shall not exceed in the aggregate outstanding at any time
(without giving effect to any write-downs or write-offs thereof) $5.0
million, net of any cash returns of capital, cash dividends and cash
distributions received in respect thereof;
(s) in addition to the foregoing, other Investments by Borrower or any
Subsidiary not exceeding in the aggregate outstanding at any time (without
giving effect to any write-downs or write-offs thereof) the sum of (1)
$20.0 million, plus (2) the aggregate sum of the portion of the Net
Available Proceeds from all Equity Issuances since the Closing Date not
required to be applied to the prepayment of the Loans pursuant to Section
2.10(a)(ii) and not previously expended pursuant to Section 9.09(q), net of
any cash returns of capital, cash dividends and cash distributions received
in respect thereof and Net Available Proceeds of any Disposition thereof;
provided however, that (x) any Investment made pursuant to this Section
-------- -------
9.06(r) that results in $5.0 million or more being then outstanding
(without giving effect to any write-downs or write-offs thereof) shall only
be made in a Subsidiary or in a Person whom Borrower or a Subsidiary has
the power to control the management and affairs thereof as certified to the
Agents by Borrower in an Officers' Certificate delivered prior to the time
of the making of such Investment and providing documentation evidencing
such control (and such Investment shall be permitted hereunder only so long
as Borrower or a Subsidiary has such control), (y) no such Investment shall
be permitted to be made with the Net Available Proceeds of any Equity
Issuance until after the portion of the Net Available Proceeds of such
Equity Issuance required to be applied to the prepayment of the Loans
pursuant to Section 2. 1 0(a)(ii) shall have been applied to the prepayment
of the Loans, and (z) at the time of making any such Investment no Default
shall exist or would arise therefrom.
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(B) No Company shall, directly or indirectly, create or acquire any
Subsidiary without the prior written consent of the Majority Lenders, which
consent shall not be unreasonably withheld; provided, however, that (1) the
--------- -------
provisions of this Section 9.09(B) shall not require the Majority Lenders'
consent for (I) the creation or acquisition of direct or indirect Wholly Owned
Subsidiaries so long as Section 9.20 is complied with at the time of formation
or acquisition thereof, (II) the creation or acquisition of any Subsidiary which
is not a Wholly Owned Subsidiary so long as the Investment made in connection
therewith complies with Section 9.09(A) and so long as Section 9.20 is complied
with at the time of formation or acquisition thereof, and (iii) the acquisition
of any Subsidiary made in compliance with Section 9.06(o) so long as Section
9.20 is complied with at the time of such acquisition; and (2) all Investments
in any Subsidiary, including in connection with the creation or acquisition
thereof, must comply with Section 9.09(A).
(C) No Company shall cause or permit the majority of the members of
the board of directors or other governing body of any Subsidiary or Unrestricted
Subsidiary to be Persons designated by any Person other than (1) Borrower or
(II) any Subsidiary or (other than with respect to any Subsidiary) Unrestricted
Subsidiary of which the majority of the members of the board of directors or
other governing body are designees of Borrower.
(D) Borrower shall not create or acquire any direct or indirect
Unrestricted Subsidiary unless at the time of creation or acquisition thereof
(1) Borrower shall have or shall have caused the applicable Unrestricted
Subsidiary to comply with Section 9.12 and Section 9.13, and (2) Borrower shall
have entered into a tax sharing agreement which is in full force and effect on
terms and conditions satisfactory to the Agents in their sole discretion.
9.10. Limitation on Dividend Payments. No Company shall, directly
--------------------------------
or indirectly, declare or make any Dividend Payment at any time, except:
(a) any Subsidiary may declare and make Dividend Payments to Borrower
or any Subsidiary;
(b) so long as no Default has occurred and is continuing, Borrower may
make Dividend Payments to Holding if the proceeds thereof are used at the
time of such Dividend Payment by Holding:
(i) to pay out-of-pocket expenses, for administrative, legal and
accounting services provided by third parties that are reasonable and
customary and incurred in the ordinary course of business for the
professional services, or to pay franchise fees and similar costs;
provided, however, that Dividend Payments under this clause (b)(i)
-------- --------
shall not exceed an aggregate amount of $ 1.0 million per year;
(ii) to pay taxes of the Companies as part of a consolidated,
combined or unitary tax filing group or of the separate operations of
Holding which are actually due and payable arising from the ownership
of the Equity Interests of Borrower by Enterprises (not to exceed in
any event the amount of tax that Borrower and the Subsidiaries would
otherwise pay if not part of such filing group); and
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(iii) to redeem Equity Interests (other than Disqualified
Capital Stock) held by current or former employees or directors of any
Company (or their estates or beneficiaries of their estates) upon the
death, disability, retirement or termination of employment or
directorship, as the case may be, pursuant to an agreement in effect
on the Closing Date as in effect on the Closing Date; provided,
--------
however, that the aggregate cash consideration paid, or distributions
-------
made, pursuant to this clause (c)(ii) shall not exceed $5.0 million in
the aggregate in any fiscal year, plus, in each case, the proceeds of
any Excluded Equity Issuance consummated contemporaneously with such
purchase or redemption.
9.11. Financial Covenants.
--------------------
(a) Maximum Leverage Ratio. The Leverage Ratio shall not, as of any
-----------------------
Test Date during any period set forth in the table below, exceed the ratio set
forth opposite such period in the table below:
Period Ratio
------- ---------
December 31, 1998 4.00:1.00
March 31, 1999 3.90:1.00
June 30, 1999 3.75:1.00
September 30, 1999 3.50:1.00
December 31, 1999 3.25:1.00
March 31, 2000 3.25:1.00
June 30, 2000 3.25:1.00
September 30, 2000 3.25:1.00
December 31, 2000 3.00:1.00
March 3 1, 2001 3.00:1.00
June 30, 2001 3.00:1.00
September 30, 2001 3.00:1.00
December 31, 2001 and thereafter 2.75:1.00
(b) Minimum Interest Coverage Ratio. The Interest Coverage Ratio shall
-------------------------------
not, as of any Test Date during any period set forth in the table below, be less
than the ratio set forth opposite such period in the table below:
Period Ratio
------- ---------
December 31, 1998 2.50:1.00
March 31, 1999 2.60:1.00
June 30, 1999 2.75:1.00
September 30, 1999 2.90:1.00
December 3 1, 1999 3.00:1.00
March 31, 2000 3.00:1.00
June 30, 2000 3.00:1.00
September 30, 2000 3.00:1.00
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December 31, 2000 3.25:1.00
March 31, 2001 3.25:1.00
June 30, 2001 3.25:1.00
September 30, 2001 3.25:1.00
December 31, 2001 and thereafter 3.50:1.00
(c) Minimum Net Worth. Consolidated Net Worth shall not, at any time
------------------
on or after December 31, 1997, be less than the sum of negative $125.0 million,
plus 50% of cumulative Consolidated Net Income from October 1, 1998 plus 100% of
the proceeds (net of underwriting discounts and commissions and other costs and
expenses directly associated therewith) from the sale after the Closing Date of
equity securities of the Borrower in any public offering or private placement or
from a capital contribution from any person; Provided that no adjustment shall
be made for any period in which the Borrower has negative Consolidated Net
Income.
(d) Capital Expenditures. (1) The aggregate amount of Capital
---------------------
Expenditures made by the Companies in any fiscal year shall not exceed the
amount set forth below opposite such year:
Fiscal Year Capital Expenditures
----------- --------------------
Amendment and Restatement Date $125.0 million
through 1999
2000 and each fiscal year thereafter $65.0 million
provided, however, that (x) if the aggregate amount of Capital Expenditures for
-------- --------
any fiscal year shall be less than the amount permitted for such fiscal year
(before giving effect to any carryover), then the shortfall may be added to the
amount of Capital Expenditures permitted for the immediately succeeding (but not
any other) fiscal year and (y) in determining whether any amount is available
for carryover, the amount expended in any fiscal year shall first be deemed to
be from the amount allocated to such year before any carryover.
(2) Notwithstanding anything herein to the contrary, so long as no
Default shall have occurred and be continuing, Borrower and the Subsidiaries may
make Capital Expenditures with the Net Available Proceeds of any Disposition
effected in accordance with Section 9.06(g) to the extent that such Net
Available Proceeds have not been otherwise expended by Borrower or any
Subsidiary.
9.12. Pledge or Mortgage of Additional Collateral. Promptly, and
--------------------------------------------
in any event within 30 days, after the acquisition of any Property of the type
that would have constituted Collateral at the Amendment and Restatement Date
(including the Equity Interests of any Subsidiary hereafter created or acquired
and the Property of AEI and its Subsidiaries at such time as AEI and its
Subsidiaries shall cease to be Unrestricted Subsidiaries) other than Real
Property (the "Additional Collateral") and after the creation or acquisition of
---------------------
any Subsidiary or at such time as AEI and its Subsidiaries shall cease to be
Unrestricted Subsidiaries, each Company shall take all action reasonably
necessary or desirable, including the execution and delivery of all such
agreements, assignments, documents, registers and instruments (including
amendments to the Credit Documents), using best efforts to obtain any necessary
consents where applicable (provided, however, that "best efforts" shall not
-------- -------
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require such Company to pay or cause to be paid any remuneration to any third
party in order to obtain any necessary consent to the extent it would be
commercially unreasonable so to do) and the filing of appropriate financing
statements or other documents under the provisions of the UCC or applicable
requirements of any Governmental Authority in each of the offices where such
filing is necessary or appropriate, to grant (in the reasonable judgment of
Administrative Agent or the Majority Lenders) to Administrative Agent for the
benefit of the Issuing Lender, Lenders and Agents a duly perfected first
priority Lien on such Property pursuant to appropriate Security Documents.
In the event that, after the Amendment and Restatement Date, any
Company (including any Subsidiary created or acquired on or after the Amendment
and Restatement Date) acquires or holds any fee or leasehold interest in any
Real Property as a result of such creation, acquisition or merger, such Company
shall notify the Administrative Agent and (i) take such actions and execute such
documents as Administrative Agent or the Majority Lenders shall reasonably
require to confirm the Lien of an existing Mortgage, if applicable, or to create
a new Mortgage on such additional Real Property and (ii) cause to be delivered
to Administrative Agent, on behalf of the Lenders, the documents and instruments
reasonably requested by Administrative Agent with respect to such additional
Real Property, including, without limitation, items of the type set forth in
Section 7.01 relating to Real Property. If requested by the Agents or the
Majority Lenders, Borrower shall obtain at its sole expense and as soon as
practicable but in any event not later than 45 days after request therefor,
Phase I environmental reports from an environmental engineering firm reasonably
acceptable to An-anger with respect to any fee or leasehold Real Property held
by any Company if not delivered on or prior to the Amendment and Restatement
Date.
The costs of all actions taken by the parties in connection with the
pledge of Additional Collateral or in connection with any Mortgage, including
reasonable costs of counsel for Administrative Agent, shall be paid by the
Obligors promptly following written demand.
9.13. Post-Closing Deliveries; Further Assurances.
--------------------------------------------
(i) Post-Closing Deliveries. Each Obligor shall cause to be delivered
------------------------
to Administrative Agent, on behalf of Agents and the Lenders, as soon as
reasonably practicable but in no event later than 120 days after the Amendment
and Restatement Date, the following:
(1) each of the following documents or instruments:
(a) Lien Waiver and Access Agreement to the extent required by
Section 7.01(xviii)(3);
(b) a Survey to the extent required by Section 7.01
(xviii)(4); and
(c) title insurance, title opinions or certificates of title as
required by Section 7.01 (xviii)(I 0);
(2) in the case of all of the Real Property other than the Covered
Properties, each of the following documents or instruments:
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(a) a Mortgage, or amendment to a Mortgage delivered on the
Closing Date or the amendment and Restatement Date (as appropriate),
duly authorized and executed encumbering each Real Property not
encumbered by a Mortgage on the Closing Date or the Amendment and
Restatement Date (other than any Real Property excluded at the
discretion of Administrative Agent or otherwise excluded pursuant to
the proviso set forth in the last paragraph of the Granting Clauses to
the Mortgage), in favor of Administrative Agent, for the benefit of
the Agents and the Lenders, in form for recording in the recording
office of each jurisdiction where each such Real Property is situated,
together with such other instruments as shall be necessary or
appropriate (in the reasonable judgment of Administrative Agent) to
create a Lien under applicable law (subject, however, to the
provisions of Section 1.4.1 of the Mortgage relating to recordation of
memoranda of Leases), all of which shall be in form and substance
reasonably satisfactory to Administrative Agent, which Mortgage and
other instruments shall be effective to create a first priority Lien
on such Real Property subject to no Liens other than Prior Liens
applicable to such Real Property and such other Liens reasonably
acceptable to Administrative Agent; and
(b) an Intercompany Lease Agreement, or amendment to an
Intercompany Lease Agreement delivered on the Amendment and
Restatement Date, duly authorized and executed, assigning each
Obligor's interest in the Intercompany Leases to Administrative Agent,
for the benefit of the Agents and the Lenders, in form for recording
in the recording office of each jurisdiction where the Real Property
demised under each Intercompany Lease is situated, together with such
other instruments as shall be necessary or appropriate (in the
judgment of Administrative Agent) to create a Lien under applicable
law, all of which shall be in form and substance reasonably
satisfactory to Administrative Agent, which Intercompany Lease
Agreement and other instruments would be effective to create (upon
recordation of such instruments at the times contemplated in the
Intercompany Lease Agreement) a first priority Lien on such Obligor's
interests in the Intercompany Leases subject to no Liens other than
Prior Liens permitted by the Intercompany Lease Agreement.
(3) in addition to the foregoing, in the event the contemplated
Disposition of the Shipyard Properties shall not have been consummated on
or before December 31, 1998, the appropriate Obligors shall cause to be
delivered to Administrative Agent on behalf of Agents and the Lenders, in
no event later than December 31, 1998, Mortgage Amendments to the Mortgages
encumbering the Shipyard Properties.
(4) any other instruments or documents of the type described in
Section 7.01 relating to Collateral, as shall be reasonably requested by
Administrative Agent;
provide, however, that with respect to the documents required to be delivered
-----------------
pursuant to subsection (i)(1)(a) of this Section, each Obligor shall be required
to use its best efforts to deliver such documents and such "best efforts" shall
not require such Obligor to pay or cause to be paid any remuneration to any
third party in order to obtain such third-party's consent to the extent it would
be commercially unreasonable so to do.
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(ii) Security Interests, Further Assurances. Each Company shall,
--------------------------------------
promptly, upon the reasonable request of Administrative Agent or any Lender, at
Borrower's expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by Administrative Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
the Liens on the Collateral covered thereby, or obtain any consents as may be
necessary or appropriate in connection therewith.
Each Company shall deliver or cause to be delivered to Administrative
Agent from time to time such other documentation, consents, authorizations,
approvals and orders in form and substance reasonably satisfactory to
Administrative Agent as Administrative Agent shall reasonably deem necessary to
perfect or maintain the Liens on the Collateral.
If any Lender determines in good faith that it is required by any
Governmental Authority or any Requirement of Law to obtain appraisals as to the
market value of any Real Property constituting Collateral, Borrower shall obtain
such appraisals as soon as practicable but in any event not less than 45 days
after request therefor, at the sole cost and expense of Borrower and in
conformity with the requirements of such Governmental Authority and all
Requirements of Law, as from time to time in effect.
Upon the exercise by Administrative Agent or the Lenders of any power,
right, privilege or remedy pursuant to any Credit Document which requires any
consent, approval, registration, qualification or authorization of any
Governmental Authority, each Company shall execute and deliver all applications,
certifications, instruments and other documents and papers that Administrative
Agent or the Lenders may be so required to obtain.
(iii) Letters of Credit. Borrower shall cause to be discharged all
obligations under the Letter of Credit Agreements and the letters of credit
issued thereunder as soon as reasonably practicable but in no event later than
April 8, 1999.
9.14. Compliance with Environmental Laws. (a) Each Company shall
-----------------------------------
comply with all Environmental Laws, and will keep or cause all Real Property to
be kept free of any Liens under Environmental Laws, unless failure to do so
could not reasonably be expected to have a Material Adverse Effect or subject
any Agent, Lender or Issuing Lender to any material risk of damages or
liability; (b) in the event of the presence of any Hazardous Material at, on,
under or emanating from any Real Property which would reasonably be expected to
result in liability under or a violation of any Environmental Law, in each case
which could reasonably be expected to have a Material Adverse Effect, each
Company and Unrestricted Subsidiary shall undertake, and/or cause any of their
respective tenants or occupants to undertake, at their sole expense, any action
required pursuant to Environmental Laws to mitigate and eliminate such presence;
provide however that no Company shall be required to comply with any order or
directive which is being contested in good faith and by proper proceedings so
long as it has maintained adequate reserves with respect to such compliance to
the extent required in accordance with GAAP; (c) each Company shall promptly
notify Administrative Agent of the occurrence of any event specified in clause
(b) of this Section 9.14 and
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shall periodically thereafter keep Administrative Agent informed of any material
actions taken in response to such event and the results of such actions; and (d)
at the written request of Administrative Agent at any time and from time to
time, such Obligor will provide, at such Obligor's sole cost and expense, an
environmental site assessment (including, without limitation, the results of any
groundwater or other testing, conducted if Administrative Agent directs that
such testing be conducted) concerning any Real Property now or hereafter owned,
leased or operated by any Company, conducted by an environmental consulting firm
proposed by such Obligor and approved by Administrative Agent indicating the
presence or absence of Hazardous Materials and the potential cost of any
required investigation or other response or any corrective action in connection
with any Hazardous Materials on, at, under or emanating from such Real Property;
provided, however, that such request may be made only if (a) there has occurred
and is continuing an Event of Default, (b) Administrative Agent reasonably
believes that any Company or any such Real Property is not in material
compliance with Environmental Law or (c) circumstances exist that reasonably
could be expected to form the basis of an Environmental Claim against such
Company or any such Real Property which could materially and adversely affect
any Company. If any Obligor fails to provide the same within 60 days after such
request was made, Administrative Agent may but is under no obligation to conduct
the same, and such Obligor shall grant and hereby grants to Administrative Agent
and its agents access to such Real Property and specifically grants
Administrative Agent an irrevocable non-exclusive license, subject to the rights
of tenants, to undertake such an assessment, all at such Obligor's sole cost and
expense.
9.15. Limitation on Transactions with Affiliates. No Company
-------------------------------------------
shall, directly or indirectly: enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property, the rendering of any service, or a merger or consolidation), with or
for the benefit of any Affiliate (an "Affiliate Transaction") unless such
Affiliate Transaction is (i) otherwise not prohibited under this Agreement, (ii)
in the ordinary course business and (iii) on fair and reasonable terms that are
not less favorable to such Company than those that are reasonably obtainable at
the time in an arm's-length transaction with a Person that is not such an
Affiliate; provided, however that so long as no Default shall have occurred and
be continuing, the following shall be permitted: (a) Dividend Payments permitted
by Section 9. 10, (b) reasonable fees and compensation paid to, and customary
indemnity and reimbursement provided on behalf of, officers, directors and
employees of any Company in the ordinary course of business; (c) loans or
advances to employees permitted by Section 9.09; (d) transactions and agreements
in existence on the Closing Date and listed and described with particularity in
Schedule 9.15 (as such agreements are in effect on the Closing Date, the
-------------
"Existing Affiliate Agreements") and the transactions contemplated by each of
the Existing Affiliate Agreements.
9.16. Limitation on Accounting Changes, Limitation on Investment
----------------------------------------------------------
Company Status. No Company shall make or permit, any change in (i) accounting
---------------
policies or reporting practices, except immaterial changes and except as
required by generally accepted accounting principles or (ii) its fiscal year end
(December 31 of each year). No Obligor shall be or become an investment company
subject to the registration requirements under the United States Investment
Company Act of 1940, as amended.
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9.17. Limitation on Modifications of Certain Documents, Etc. No
------------------------------------------------------
Company shall, directly or indirectly, consent to any modification, supplement,
waiver, or amendment, in any manner which could be materially adverse to the
Lenders, of any of the provisions of any Organic Document.
9.18. Interest Rate Protection Agreements. Borrower shall obtain,
------------------------------------
on or within 90 days after the Amendment and Restatement Date, interest rate
protection agreements (or in lieu thereof, shall have Refinanced Indebtedness
which accrues interest at a fixed rate) having terms and with counter parties
reasonably satisfactory to An-anger as shall result in effectively limiting the
interest cost to the Companies of 50% of the aggregate principal amount of then
outstanding Total Debt of the Companies for such period of time as the An-anger
may reasonably request from the date the initial interest rate protection
agreements were obtained (not to exceed three years).
9.19. Limitation on Certain Restrictions Affecting Subsidiaries.
-----------------------------------------------------------
No Company shall, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any direct or indirect encumbrance or restriction on
the ability of any Subsidiary to (a) pay dividends or make any other
distributions on such Subsidiary's Equity Interests or any other interest or
participation in its profits owned by any Company, or pay any Indebtedness or
any other obligation owed to any Company, (b) make Investments in or to any
Company, or (c) transfer any of its Property to any Company. The foregoing shall
not prohibit (i) any such encumbrances or restrictions existing under or by
reason of applicable law or the Credit Documents, the Bridge Loan Agreement, the
Senior Indenture or the Senior Subordinated Indenture, or documents governing
any Permitted Refinancing thereof, (ii) restrictions on the transfer of assets
subject to a Lien permitted under Section 9.07, (iii) customary restrictions on
subletting or assignment of any lease governing a leasehold interest of any
Company, and (iv) restrictions on the transfer of any Property subject to a
Disposition permitted under this Agreement.
9.20. Additional Obligors. Upon any Company creating or acquiring
--------------------
any Subsidiary after the Closing Date or at such time as AEI and its
Subsidiaries shall cease to constitute Unrestricted Subsidiaries hereunder (each
such Subsidiary and each of AEI and its Subsidiaries referred to herein as an
"Additional Obligor" and collectively as the "Additional Obligors"), Borrower
------------------- --------------------
shall (i) cause each Additional Obligor to execute and deliver all such
agreements, guarantees, documents and certificates (including any amendments to
the Credit Documents and a Joinder Agreement substantially in the form of
Exhibit J as Administrative Agent may reasonably request and do such other acts
---------
and things as Administrative Agent may reasonably request in order to have such
Additional Obligor guarantee the Obligations in accordance with the terms of the
Credit Documents, (ii) promptly (1) execute and deliver to Administrative Agent
such amendments to the Security Documents as Administrative Agent deems
necessary or advisable in order to grant to Administrative Agent, for the
benefit of the Agents and the Lenders, a perfected first priority security
interest in the Equity Interests and debt securities of such Additional Obligor
which are owned by Borrower or any Subsidiary and required to be pledged
pursuant to the Security Agreement, (11) deliver to Administrative Agent the
certificates representing such Equity Interests and debt securities, together
with (A) in the case of such Equity Interests, undated stock powers endorsed in
blank, and (B) in the case of such debt securities, endorsed in blank, in each
case executed and delivered by a responsible officer of Borrower or such
Additional Obligor, as the case may be, (111) cause such Additional Obligor to
take such actions necessary or advisable to grant to Administrative Agent for
the benefit
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of the Agents and the Lenders a perfected first priority security interest in
the collateral described in the Security Agreement with respect to such
Additional Obligor, including, without limitation, the filing of UCC financing
statements in such jurisdictions as may be required by the Security Agreement or
by Requirements of Law or as may be reasonably requested by Administrative
Agent, and (IV) if reasonably requested by Administrative Agent, deliver to
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to Administrative Agent.
9.21. Limitation on Leases. No Company shall become liable in any
---------------------
way, whether directly or by assignment or as a guarantor or other surety, for
the obligations of the lessee under any operating lease, unless, immediately
after giving effect to the incurrence of liability with respect to such lease,
the Consolidated Rental Payments at the time in effect shall not exceed $5.0
million per annum.
9.22. Limitation on Other Restrictions on Amendment of Credit
-------------------------------------------------------
Documents. No Company shall, directly or indirectly, enter into, suffer to exist
----------
or become or remain subject to any agreement or instrument (other than the
Credit Documents) that (a) would, directly or indirectly prohibit or restrict or
require the consent of any Person to, any amendment to, or waiver or consent to
departure from the terms of, any of the Credit Documents or (b) contains any
provision that would contravene any provision of any Credit Document.
9.23. Designated Senior Debt. No Company shall designate any
-----------------------
Indebtedness or other obligation, other than Indebtedness under this Agreement
and under the Senior Notes Indenture, as "Designated Senior Debt" or other
similar designation in the documents governing any Indebtedness of any Company
that confers upon the holders of such Indebtedness or other obligation (or any
Person acting on their behalf) the right to initiate blockage periods under any
other Indebtedness of such Company.
9.24. Limitation on Issuance or Dispositions of Equity Interests of
-------------------------------------------------------------
Borrower, Subsidiaries and Unrestricted Subsidiaries. Holding shall not,
-----------------------------------------------------
directly or indirectly, effect any Disposition of any Equity Interests or Equity
Rights of Borrower. No Subsidiary shall issue, sell, assign, transfer or
otherwise dispose of any of its Equity Interests or Equity Rights, except (a) to
any Subsidiary, to Borrower or a Qualified Subsidiary and (b) directors'
qualifying shares as required by law. Neither Borrower nor any Subsidiary shall
effect the Disposition of any Equity Interests of any Subsidiary unless all
Equity Interests owned by Borrower and the Subsidiaries are sold pursuant
thereto.
9.25. Limitation on Payments or Prepayments of Indebtedness or
---------------------------------------------------------
Modification of Debt Documents. Borrower shall not, and shall not cause or
-------------------------------
permit any Subsidiary to, directly or indirectly:
(a) make any payment or prepayment (optional or otherwise) on or
redemption of or any payments in redemption, defeasance or repurchase of
any Indebtedness (other than the Loans) (whether in cash, securities or
other Property), except (1) regularly scheduled mandatory payments of
interest, (2) pursuant to any Permitted Refinancing, (3) the
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conversion or exchange of any Indebtedness into shares of common Equity
Interests of Borrower and (4) so long as no Default or Event of Default
shall have occurred and is continuing, regularly scheduled mandatory
payments of principal on the Mid-Vol Note, the ▇▇▇▇▇▇ Note and Indebtedness
under the ▇▇▇▇▇ ▇▇▇▇▇ Note and any Indebtedness incurred pursuant to
Section 9.08(l);
(b) amend, supplement, waive or otherwise modify any of the provisions
of any Existing Debt (or any Permitted Refinancing thereof):
(i) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest or dividends on, or increases the
amount or shortens the time of payment of any principal, liquidation preference
or premium payable whether at maturity, at a date fixed for prepayment or by
acceleration or otherwise of such Indebtedness, or increases the amount of, or
accelerates the time of payment of, any fees payable in connection therewith
(other than the exercise by Borrower of its rights under the Cyprus Acquisition
Agreement to accelerate royalty payments thereunder);
(ii) which relates to the affirmative or negative covenants, events
of default or remedies under the documents or instruments evidencing
such Indebtedness and the effect of which is to subject Borrower or
any of the Subsidiaries to any more onerous or more restrictive
provisions; or
(iii) which otherwise adversely affects the interests of the Lenders
as senior creditors or the interests of the Lenders under this
Agreement or any other Credit Document in any respect.
9.26. Take or Pay Contracts. No Company shall or enter into or be
----------------------
a party to any arrangement for the purchase of materials, supplies, other
property or services if such arrangement by its express terms requires that
payment be made by such Company regardless of whether such materials, supplies,
other property or services are delivered or furnished to it.
9.27. Tax Sharing Arrangements. No Company shall enter into or
-------------------------
permit to exist any tax sharing agreement or similar arrangement unless the same
shall have been reviewed by, and consented to, by the Agents.
9.28. Maintenance of Corporate Separateness. Borrower shall not,
--------------------------------------
and shall not permit any of the Subsidiaries or Unrestricted Subsidiaries to,
(a) fail to satisfy customary corporate formalities, including, without
limitation, (i) the holding of regular board of directors' and shareholders'
meetings, (ii) the maintenance of separate corporate records and (iii) the
maintenance of separate bank accounts in its own name; (b) fail to act solely in
its own corporate name and through its authorized officers and agents; (c)
commingle any money or other assets of Borrower or any of the Subsidiaries with
any money or other assets of any Unrestricted Subsidiary; or (d) take any
action, or conduct its affairs in a manner, which could be expected to result in
the separate corporate existence of each of Borrower, each of the Subsidiaries
and each of its Unrestricted Subsidiaries from being
-105-
ignored or the assets and liabilities of Borrower or any of the Unrestricted
Subsidiaries being substantively consolidated with those of the Borrower or any
other Company in any Insolvency Proceeding. No Company shall make any payment to
any creditor of any Unrestricted Subsidiary. All financial statements of each
Unrestricted Subsidiary distributed to any creditor of an Unrestricted
Subsidiary shall clearly establish the separateness of such Unrestricted
Subsidiary from the Companies.
9.29. Changes in Factual Information Regarding the Collateral.
--------------------------------------------------------
Each Company will furnish to the Administrative Agent prompt written notice of
any change (i) in any Obligor's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of any Obligor's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (iii) in any Obligor's identity or corporate structure, (iv)
resulting in any tangible Collateral being located in any jurisdiction in which
a financing statement must be, but has not been, filed in order to perfect the
Administrative Agent's Liens, (v) in respect of any patents, trademarks
copyrights or applications therefor owned by or licensed to any Obligor, or (vi)
in any Obligor's Federal Taxpayer Identification Number. Each Company will not
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral and will promptly notify the Administrative Agent if any
material portion of the Collateral is damaged or destroyed.
9.30. Casualty and Condemnation. Each Company will furnish to the
--------------------------
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of any Collateral or the
commencement of any action or proceeding for the taking of any material portion
of the Collateral or any part thereof or interest therein under power of eminent
domain or by condemnation or similar proceeding.
Section 10. Events of Default. If one or more of the following
------------------
events (herein called "Events of Default") shall occur and be continuing:
(a) (i) Borrower shall default in the payment when due (whether at
stated maturity upon prepayment or repayment or acceleration or otherwise)
of any principal of any Loan or Reimbursement Obligation, or (ii) Borrower
shall default in the payment when due of interest on any Loan or any
Reimbursement Obligation or any fee or any other amount payable by it
hereunder or under any other Credit Document when due and such default
under this clause (ii) shall have continued unremedied for three or more
Business Days; or
(b) Any Company shall (i) default (x) in any payment under any coal
lease with aggregate lease payments in excess of $25.0 million or (y) in
the payment when due of any principal of or interest on any of its
Indebtedness (other than the Loans) aggregating $25.0 million or more,
beyond the period of grace, if any, provided in the instrument or agreement
under which such lease or Indebtedness was created, after giving effect to
any consents or waivers relating thereto obtained before the expiration of
any such period of grace; or (ii) any event specified in any lease, note,
agreement, indenture or other document evidencing or
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relating to any lease with aggregate lease payments in excess of $25.0
million or Indebtedness aggregating $25.0 million or more if the effect of
such event (after giving effect to any consents or waivers relating thereto
obtained before the expiration of any such period of grace) is to cause, or
(with the giving of any notice or the lapse of time or both) to permit the
lessor under such lease or the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such lease
to be terminated (and which termination could reasonably be expected to
have a Material Adverse Effect) or such Indebtedness to become due, or to
be prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity; or
(c) Any representation or warranty made or deemed made in any Credit
Document (or in any modification or supplement thereto) by any Relevant
Party or in any certificate furnished to any Creditor pursuant to the
provisions thereof, shall prove to have been false or misleading as of the
time made, deemed made or furnished in any material respect; or
(d) Any Obligor shall default in the performance of any of its
obligations under any of Sections 9.0 1 (f) or 9.05 through 9.11, 9.13
through 9.15 or 9.20 through 9.24; or Borrower shall default in the
performance of its obligations under Section 9.0 1 (e) or (k) or 9.18 and
such default shall continue unremedied for five Business Days; or any
Obligor shall default in the performance of any of its other obligations in
this Agreement, the Security Documents or the Letter of Credit Documents
and such default shall continue unremedied for a period of thirty days
after written notice thereof to such Obligor or Borrower by Administrative
Agent or any Lender; or
(e) Any Company shall not, or shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts become due; or
(f) Any Company shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its Property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
or consents to any Insolvency Proceeding, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, (v)
fail to controvert within 30 days or in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
insolvency Proceeding, or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) (i) Any Insolvency Proceeding is commenced or filed against any
Company, or any writ, judgment, wan-ant of attachment, execution or similar
process is issued or levied against any Company, and either (1) such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within 30 days after commencement, filing or levy
or (2) such proceeding shall not be actively contested by the Company; (ii)
any Company admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-
U.S. law) is ordered in any Insolvency Proceeding; (iii) any
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Company acquiesces in the appointment of a receiver, receiver and manager,
trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar person for itself or a substantial
portion of its Property or business; or (iv) an order of relief against any
Company shall be entered in any Involuntary Proceeding; or
(h) A final judgment or judgments for the payment of money in excess
of $25.0 million in the aggregate (exclusive of judgment amounts to the
extent covered by insurance) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against any
Company and the same shall not be discharged (or provision shall not be
made for such discharge), vacated or bonded pending appeal, or a stay of
execution thereof shall not be procured, within 30 days from the date of
entry thereof and such Company shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(i) An ERISA Event shall have occurred that, in the opinion of the
Majority Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of any
Company in an aggregate amount exceeding $5.0 million; or
0) Any Change of Control shall occur; or
(k) Any Security Document after delivery thereof by any Obligor at any
time shall cease to be in full force and effect or shall for any reason
fail to create or cease to maintain a valid and duly perfected first
priority security interest in and Lien upon (subject to Prior Liens and
other Liens expressly permitted by the terms of the applicable Security
Document) any material portion of the Collateral; or
(1) Any Guarantee ceases to be in full force and effect; or
(in) Any Credit Document or any material provision thereof shall at
any time and for any reason be declared by a court of competent
jurisdiction to be null and void, or a Proceeding shall be commenced by any
Company or any other Person, or by any Governmental Authority, seeking to
establish the invalidity or unenforceability thereof (exclusive of
questions of interpretation of any provision thereof), or any Company shall
repudiate or deny that it has any liability or obligation for the payment
of principal or interest or other obligations purported to be created under
any Credit Document; or
(n) Any non-monetary judgment, order or decree is entered against any
Company which does or could reasonably be expected to have a Material
Adverse Effect, and there shall be any period of 10 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.
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10, Administrative Agent may, with the consent
of the Majority Lenders, and upon
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written direction of the Majority Lenders shall, by notice to Borrower,
terminate the Commitments and/or declare the principal amount then outstanding
of, and the accrued interest on, the Loans, the Reimbursement Obligations and
all other amounts payable by Borrower hereunder and under the Notes (including
any amounts payable under Section 5.05 or 5.06) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Borrower, reduce any claim to judgment, take any other
action permitted by law and/or take any action permitted to be taken by the
Security Documents during the existence of an Event of Default; and (2) in the
case of the occurrence of an Event of Default referred to in clause (f) or (g)
of this Section 10 with respect to the Borrower or any Significant Subsidiary,
the Commitments shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans, the Reimbursement
Obligations and all other amounts payable by Borrower hereunder and under the
Notes (including any amounts payable under Section 5.05 or 5.06) shall
automatically become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by Borrower.
In addition, Borrower agrees, upon the occurrence and during the
continuance of any Event of Default if Administrative Agent has declared the
principal amount then outstanding of, and accrued interest on, the Revolving
Credit Loans, and all other amounts payable to the Revolving Credit Lenders
hereunder and under the Notes evidencing such Loans to be due and payable, it
may and shall, if requested by the Majority Revolving Credit Lenders through
Administrative Agent (and, in the case of any Event of Default referred to in
clause (f) or (g) of this Section 10 with respect to the Borrower or any
Significant Subsidiary, forthwith, without any demand or the taking of any other
action by Administrative Agent or such Lenders) provide cover for the Letter of
Credit Liabilities by paying to Administrative Agent immediately available funds
in an amount equal to the then aggregate undrawn face amount of all Letters of
Credit, which funds shall be held by Administrative Agent in the Collateral
Account as collateral security in the first instance for the Letter of Credit
Liabilities and be subject to withdrawal only as provided in the Security
Agreement.
Section 11. Agents.
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11.01. General Provisions. Each of the Lenders, the Issuing Lender
-------------------
and Arranger hereby irrevocably appoints Administrative Agent as its agent and
authorizes Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to Administrative Agent by the terms
hereof and the Security Documents, together with such actions and powers as are
reasonably incidental thereto. Administrative Agent agrees to give promptly to
each Lender a copy of each notice or other document received by it pursuant to
any Credit Document (other than any that are required to be delivered to the
Lenders by any Obligor).
The Lender or other financial institution serving as any Agent or
Issuing Lender hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not
such Agent or Issuing Lender, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Company or other Affiliate thereof as if it were not such Agent or Issuing
Lender hereunder.
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No Agent or Issuing Lender shall have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) no Agent or Issuing Lender shall be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) no Agent or Issuing Lender shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that such Agent or Issuing
Lender is required to exercise in writing by the Majority Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 12.0-4), and (c) except as expressly set
forth herein, no Agent or Issuing Lender shall have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to any
Company that is communicated to or obtained by the financial institution serving
as such Agent or Issuing Lender or any of its Affiliates in any capacity. No
Agent or Issuing Lender shall be liable for any action taken or not taken by it
with the consent or at the request of the Majority Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 12.04) or in the absence of its own gross negligence or
willful misconduct. No Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to Administrative Agent and
such Agent by Borrower or a Lender, and no Agent or Issuing Lender shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Credit Document, (ii) the contents of any certificate, report or other
document delivered hereunder or under any other Credit Document or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
Credit Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Section 7 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent.
Each Agent and Issuing Lender shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. Each
Agent and Issuing Lender also may rely upon any statement made to it orally or
by telephone and reasonably believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. Each Agent and Issuing Lender
may consult with legal counsel (who may be counsel for Borrower), independent
accountants and other experts reasonably selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts. Each Agent and Issuing Lender may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with such Agent or Issuing Lender. Each Agent and Issuing Lender shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Majority Lenders (or, if so specified by this Agreement, all
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent and Issuing Lender shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Majority Lenders (or, if so
specified by this
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Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
Each Agent and Issuing Lender may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by such Agent or Issuing Lender. Each Agent, Issuing Lender and any
such sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Affiliates, directors, officers, employees,
agents and advisors ("Related Parties"). The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Agent and Issuing Lender and any such sub-agent, and shall apply
to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as such Agent or Issuing
Lender.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders, the Issuing Lender (with respect to Administrative Agent only) and
Borrower. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor which, so long as no Default is continuing, shall be
reasonably acceptable to Borrower. If no successor shall have been so appointed
by the Majority Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders and the Issuing Lender, appoint a successor
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by Borrower to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between Borrower and such
successor. After the Agent's resignation hereunder, the provisions of this
Section I I shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as such Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent, Issuing Lender or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent,
Issuing Lender or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any
related agreement or any document furnished hereunder or thereunder. No Agent or
Issuing Lender shall be deemed a trustee or other fiduciary on behalf of any
party.
11.02. Indemnification. Each Lender agrees to indemnify and hold
----------------
harmless each Agent and the Issuing Lender (to the extent not promptly
reimbursed under Section 12.03, but without limiting the obligations of Borrower
under Section 12.03), ratably in accordance with the aggregate principal amount
of the respective Commitments of and/or Loans and Reimbursement Obligations held
by the Lenders, for any and all liabilities (including pursuant to any
Environmental Law), obligations, losses, damages, penalties, actions, judgments,
deficiencies, suits, costs, expenses
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(including reasonable attorney's fees) or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against such Agent or
Issuing Lender (including by any Lender) arising out of or by reason of any
investigation in or in any way relating to or arising out of any Credit Document
or any other documents contemplated by or referred to therein for any action
taken or omitted to be taken by such Agent or Issuing Lender under or in respect
of any of the Credit Documents or other such documents or the transactions
contemplated thereby (including the costs and expenses that Borrower is
obligated to pay under Section 12.03, and including also any payments under any
indemnity that Administrative Agent is required to issue to any Lender referred
to in Section 4.0 1 (c) of the Security Agreement, or to any bank referred to in
Section 4.02 of the Security Agreement to which remittances in respect of
Accounts, as defined therein, are to be made, but excluding, unless a Default
has occurred and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or of any such other documents; provided
however that no Lender shall be liable for any of the foregoing to the extent
they are determined by a court of competent jurisdiction in a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of the party to be indemnified. The agreements set forth in this
Section 11.02 shall survive the payment of all Loans and other obligations
hereunder and shall be in addition to and not in lieu of any other
indemnification agreements contained in any other Credit Document.
11.03. Consents Under Other Credit Documents. Except as otherwise
--------------------------------------
provided in this Agreement and the other Credit Documents, Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the other Credit
Documents.
11.04. Collateral Sub-Agent. Each Lender by its execution and
---------------------
delivery of this Agreement agrees, as contemplated by Section 9 of the Security
Agreement, that, in the event it shall hold any Permitted Investments referred
to therein, such Permitted Investments shall be held in the name and under the
control of such Lender, and such Lender shall hold such Permitted Investments as
a collateral sub-agent for Administrative Agent thereunder. Borrower by its
execution and delivery of this Agreement hereby consents to the foregoing.
Section 12. Miscellaneous.
--------------
12.01. Waiver. No failure on the part of any Creditor to exercise
-------
and no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under any Credit Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
any Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies provided herein
are cumulative and not exclusive of any remedies provided by law.
12.02. Notices. All notices, requests and other communications
--------
provided for herein and under the Security Documents (including any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including by facsimile) delivered to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof-, or, as to any party, at such other address as shall be designated
by such party in a notice to
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each other party. Except as otherwise provided in this Agreement all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid. Any Notice of Borrowing
or Notice of Continuation/Conversion shall be deemed to have been received when
actually received.
12.03. Expenses, Indemnification, Etc. (a) The Obligors, jointly
-------------------------------
and severally, agree to pay or reimburse:
(i) the Issuing Lender, Arranger and Administrative Agent for all of
their reasonable out-of-pocket costs and expenses (including the reasonable
fees and expenses of legal counsel) in connection with (1) the negotiation,
preparation, execution and delivery of the Credit Documents and the
extension of credit hereunder, (2) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of any Credit
Document (whether or not consummated or effective) and (3) the primary
syndication of the Loans and Commitments;
(ii) each of the Lenders, the Issuing Lender and Administrative Agent
for all reasonable out-of-pocket costs and expenses of the Lenders, the
Issuing Lender and Administrative Agent (including the reasonable fees and
expenses of legal counsel) in connection with (1) any Default and any
enforcement or collection proceedings resulting therefrom, including all
manner of participation in or other involvement with (x) bankruptcy,
insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the
workout, restructuring or transaction contemplated thereby is consummated),
(2) the enforcement of this Section 12.03 and (3) any documentary taxes;
and
(iii) each of the Lenders, the Issuing Lender and Administrative
Agent for all reasonable costs, expenses, taxes, assessments and other
charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated by any Credit Document or
any other document referred to therein.
(b) The Obligors, jointly and severally, hereby agree to indemnify
each Creditor and their respective Affiliates, directors, trustees, officers,
employees and agents (each, an "Indemnitee") from, and hold each of them
harmless against, and that no Indemnitee will have any liability for, any and
all Losses incurred by any of them (including any and all Losses incurred by
Administrative Agent, Arranger or the Issuing Lender to any Lender, whether or
not any Creditor is a party thereto) directly or indirectly arising out of or by
reason of or relating to the negotiation, execution, delivery, performance,
administration or enforcement of any Credit Document, any of the transactions
contemplated by the Credit Documents, any breach by any Obligor of any
representation, warranty, covenant or other agreement contained in any of the
Credit Documents in connection with any of the transactions contemplated hereby,
the use or proposed use of any of the Loans or Letters of Credit, the issuance
of or performance under any Letter of Credit or the use of any collateral
security for the Loans (including the exercise by any Creditor of the rights and
remedies or any power of attorney with respect thereto and any action or
inaction in respect thereof), but excluding any such Losses to
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the extent finally determined by a court of competent jurisdiction in a final
and nonappealable judgment to have arisen from the gross negligence or bad faith
of the Indemnitee.
Without limiting the generality of the foregoing, the Obligors.
jointly and severally, will indemnify each Creditor and each other Indemnitee
from, and hold each Creditor and each other Indemnitee harmless against, any
Losses described in the preceding sentence arising under any Environmental Law
as a result of (A) the past, present or future operations of any Company (or any
predecessor in interest to any Company), (B) the past, present or future
condition of any site or facility owned, operated, leased or used at any time by
any Company (or any such predecessor in 'interest), or (C) any Release or
threatened Release of any Hazardous Materials at, on, under or from any such
site or facility, including any such Release or threatened Release that shall
occur during any period when any Creditor shall be in possession of any such
site or facility following the exercise by such Creditor of any of its rights
and remedies hereunder or under any of the Security Documents; pro- vided,
however that the indemnity hereunder shall be subject to the exclusions from
indemnification set forth in the preceding sentence.
To the extent that the undertaking to indemnify and hold harmless set
forth in this Section 12.03 or any other provision of any Credit Document
providing for indemnification is unenforceable because it is violative of any
law or public policy or otherwise, the Obligors, jointly and severally, shall
contribute the maximum portion that each of them is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses to
any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to in
any indemnification or expense reimbursement provisions set forth in this
Agreement or any other Credit Document, except to the extent that any Loss is
determined by a court of competent jurisdiction in a final nonappealable
judgment to have resulted from the gross negligence or bad faith of such
Indemnitee.
The Obligors agree that, without the prior written consent of
Administrative Agent, An-anger and the Majority Lenders which consent shall not
be unreasonably withheld, no Obligor will settle, compromise or consent to the
entry of any judgment in any pending or threatened Proceeding in respect of
which indemnification is reasonably likely to be sought under the
indemnification provisions of this Section 12.03 (whether or not any Indemnitee
is an actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release of each
Indemnitee from all liability arising out of such Proceeding and
does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of any Indemnitee and does not involve any
payment of money or other value by any Indemnitee or any injunctive relief or
factual findings or stipulations binding on any Indemnitee.
12.04. Amendments, Etc. (i) Any provision of any Credit Document
----------------
may be amended, modified or supplemented by an instrument in writing signed by
the Obligors party thereto and the Majority Lenders, or by the Obligors party
thereto and Administrative Agent acting with the written
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consent of the Majority Lenders, and any provision of any Credit Document may be
waived by an instrument in writing signed by the Obligors party thereto and the
Majority Lenders, or by the Obligors party thereto and Administrative Agent
acting with the written consent of the Majority Lenders; provide however that:
---------------
(a) no amendment or waiver shall, unless by an instrument signed by
all of the Lenders or by Administrative Agent acting with the written
consent of each Lender (with Obligations directly affected in the case of
clause (I)): (1) extend the scheduled final maturity of any Loan or Note,
or extend the stated expiration date of any Letter of Credit beyond the
Revolving Credit Commitment Termination Date, or reduce the rate of
interest (other than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to clause (b) of Section 3.02) or
fees thereon, or extend the time of payment of interest or fees thereon, or
reduce the principal amount thereof, or make any change to the definition
of Applicable Margin or Applicable Revolving Credit Fee Percentage, (11)
extend the final maturity of any of the Commitments (or reinstate any
Commitment terminated pursuant to Section 10), (111) change the currency in
which any Obligation is payable, (IV) amend the terms of this Section 12.04
or Section 4.07, 5 or 11.03, (V) reduce the percentages specified in the
definition of the term "Majority Lenders" or "Supermajority Lenders" or
amend any provision of any Credit Document requiring the consent of all the
Lenders or reduce any other percentage of the Lenders required to make any
determinations or waive any fights hereunder or to modify any provision
hereof (it being understood that, with the consent of the Majority Lenders,
other additional extensions of credit pursuant to this Agreement may be,
included in the determination of the Majority Lenders and Supermajority
Lenders without notice to or consent of any other Lender or Agent on
substantially the same basis as the Commitments (and related extensions of
credit) are included on the Closing Date), (VI) release any Guarantor from
its obligations under Section 6 (unless permitted by this Agreement), (VII)
consent to the assignment or transfer by any Obligor of any of its rights
and obligations under any Credit Document, (VIII) release all or
substantially all the Collateral or terminate the Lien under any Credit
Document in respect of all or substantially all the Collateral (except as
permitted by the Credit Documents) or agree to additional obligations
(other than the Obligations) being secured by the Collateral, or (IX) amend
Section 12.03 or any other indemnification and expense reimbursement
provision set forth in any Credit Document (it being understood that any
prepayment required by Section 2. 1 0(a) may be waived or amended by the
Majority Lenders);
(b) no such amendment or waiver shall increase the Commitments of any
Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that amendments or waivers of conditions
precedent, covenants or Defaults shall not constitute an increase of the
Commitment of any Lender);
(c) any modification or supplement of or waiver with respect to
Section I I which affects any Agent in their respective capacities as such
shall require the consent of such Agent;
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(d) no consent of any Lender need be obtained, and Administrative
Agent is hereby authorized, to release any Lien securing the Obligations on
Property which is the subject of any disposition permitted by the Credit
Documents;
(e) subject to clause (a)(1) above of this proviso to this Section
12.04(i), the consent of the Supermajority Lenders of the Affected Class as
well as the Supermajority Lenders shall be required with respect to any
extension of any scheduled Amortization Payment or any reduction in the
amount of any scheduled Amortization Payment (it being understood that,
subject to clause (f) below of this Section 12.04, any prepayment required
by Section 2. 10 may be modified, supplemented or waived by the Majority
Lenders);
(f) no modification, supplement or waiver shall, unless by an
instrument signed by the Supermajority Lenders of the Affected Class or by
Administrative Agent acting with the written consent of the Supermajority
Lenders of the Affected Class, change the timing of the receipt or the
application of mandatory prepayments hereunder as among the Tranche A Term
Loans and the Tranche B Term Loans or the order in which any such
prepayment is applied to the Tranche A Term Loans or Tranche B Term Loans
(although any required prepayment set forth in Section 2. 10 may otherwise
be modified, supplemented or waived by the Majority Lenders);
(g) no reduction of the percentage specified in the definition of
"Majority Revolving Credit Lenders," "Majority Tranche A Term Loan Lenders"
or "Majority Tranche B Term Loan Lenders" shall be made without the consent
of each Revolving Credit Lender, each Tranche A Term Loan Lender or each
Tranche B Term Loan Lender, respectively (it being understood that only the
Class of such Loan to which such definition relates need consent to any
such reduction and that the Increased Facility Amount, if extended by any
Lender, shall be, and, with the consent of the Majority Lenders, other
additional extensions of credit pursuant to this Agreement may be, included
in any such definition without notice to or consent of any other Lender or
Agent on substantially the same terms as the Commitments (and related
extensions of credit) are included on the Closing Date);
(h) no reduction of the percentage specified in the definition of (1)
"Majority Tenn Lenders" shall be made without the consent of the Majority
Tranche A Term Loan Lenders and the Majority Tranche B Term Loan Lenders or
(11) "Supermajority Lenders of the Affected Class" shall be made without
the consent of each Term Loan Lender (it being understood, that with the
consent of the Majority Lenders, additional extensions of credit pursuant
to this Agreement may be included in either such definition without notice
to or consent of any other Lender or Agent on substantially the same terms
as the Commitments (and related extensions of credit) are included on the
Closing Date);
(i) (reserved];
0) no amendment or waiver shall affect the rights or duties of the
Issuing Lender in its capacity as such or alter the obligation of any
Revolving Credit Lender pursuant to Section 2.03(e) or 2.03(f) without the
consent of the Issuing Lender;
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(k) no consent of any Lender need be obtained to effect any amendment
of any Credit Document necessary to comply with Section 9.12 or Section
9.19; and
(1) no amendment, modification, supplement or waiver may be made to
any condition precedent to any extension of credit under the Revolving
Credit Facility set forth in subsection 7.02 without the written consent of
the Majority Revolving Credit Lenders, it being understood that no
amendment to or waiver of any representation or warranty or any covenant
contained in this Agreement or any other Credit Document, or of any
Default, shall be deemed to be effective for purposes of determining
whether the conditions precedent set forth in subsection 7.02 to the making
of any extension of credit under the Revolving Credit Loans have been
satisfied unless the Majority Revolving Credit Lenders shall have consented
to such amendment or waiver.
(ii) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
Section 12.04(i)(a) (other than clause (1) of such section), the consent of the
Majority Lenders, Majority Tranche A Term Loan Lenders, Majority Tranche B Tenn
Loan Lenders, Majority Revolving Credit Lenders, Majority Term Lenders,
Supermajority Lenders or Supermajority Lenders of the Affected Class, as the
case may be, is obtained but the consent of one or more of such other Lenders
whose consent is required is not obtained, then Borrower shall have the right to
replace each such non-consenting Lender or Lenders (so long as all non-
consenting Lenders are so replaced) with one or more Replacement Lenders
pursuant to Section 2.11 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge or
termination; provided however, that Borrower shall not have the right to replace
a Lender solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant to clause (1) of
Section 12.04(i)(a).
12.05. Successors and Assigns. This Agreement shall be binding upon
-----------------------
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.06. Assignments and Participations. (a) No Obligor may assign
-------------------------------
its respective rights or obligations hereunder or under the Notes or any other
Credit Document without the prior written consent of all of the Lenders.
(b) Each Lender may assign to any Eligible Person any of its Loans,
its Notes, its Letter of Credit Interests and its Commitments (but only with the
consent (which shall not be unreasonably withheld, delayed or conditioned) of
Borrower and the Administrative Agent and, in the case of the Revolving Credit
Commitments, the Issuing Lender); provided, however that (i) no such consent by
Borrower, the Issuing Lender or the Administrative Agent shall be required in
the case of any assignment to another Lender or any Lender's Affiliate or an
Approved Fund of any Lender (in which case, the assignee and assignor Lenders
shall give notice of the assignment to the Administrative Agent); (ii) no
consent of Borrower need be obtained if any Default shall have occurred and be
continuing; (iii) each assignment, other than to a Lender or any Lender's
Affiliate or an Approved Fund of any Lender and other than any assignment
effected by UBS AG or any of its Affiliates in connection with the syndication
of the Commitments and/or Loans, shall be in an
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aggregate amount at least equal to $5.0 million unless the assigning Lender's
exposure is reduced to $0 or unless Borrower and the Administrative Agent
otherwise agree and (iv) in no event may any such assignment be made to any
Obligor or any of its Affiliates without consent of all Lenders. Any assignment
of a Loan shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of a Loan shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan (if a Note was issued in respect thereof), accompanied by an instrument in
writing substantially in the form of Exhibit F, and upon consent thereto by
Borrower, the Administrative Agent and the Issuing Lender to the extent required
above, one or more new Notes (if requested by the New Lender) in the same
aggregate principal amount shall be issued to the designated assignee and the
old Notes shall be returned by Administrative Agent to Borrower marked
"canceled". Upon execution and delivery by the assignee to Borrower and the
Administrative Agent of an instrument in writing substantially in the form of
Exhibit F and upon consent thereto by Borrower, the Administrative Agent and the
Issuing Lender to the extent required above, and in the case of a Loan, upon
appropriate entries being made in the Register the assignee shall have, to the
extent of such assignment (unless otherwise provided in such assignment with the
consent of Administrative Agent), the obligations, rights and benefits of a
Lender hereunder holding the Commitment(s), Loans (or portions thereof) and
Letter of Credit Interests assigned to it (in addition to the Commitment(s),
Letter of Credit Interests and Loans, if any, theretofore held by such assignee)
and the assigning Lender shall, to the extent of such as assignment, be released
from the Commitment(s) (or portion(s) thereof) so assigned. Upon any such
assignment (other than to a Lender or any Affiliate of a Lender or an Approved
Fund of any Lender and other than any assignment by UBS AG or any of its
Affiliates) the assignee Lender shall pay a fee of $3,500 to Administrative
Agent. Upon any such assignment, certain rights and obligations of the assigning
Lender shall survive as set forth in Section 12.07.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans and Letter of Credit Interests
held by it, or in its Commitments, in which event each purchaser
of a participation (a "Participant") shall be entitled to the rights and
benefits of the provisions of Section 5 (provide however, that no Participant
shall be entitled to receive any greater amount pursuant to Section 5 than the
transferor Lender would have been entitled to receive in respect of the
participation effected by such transferor Lender had no participation occurred)
with respect to its participation in such Loans, Letter of Credit Interests and
Commitments as if such Participant were a "Lender" for purposes of said Section,
but, except as other wise provided in Section 4.07(c), shall not have any other
rights or benefits under this Agreement or any Note or any other Credit Document
(the Participant's rights against such Lender in respect of such participation
to be those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by Borrower to any Lender under Section 5 in
respect of Loans, Letter of Credit Interests and its Commitments shall be no
greater than the amount that would have applied if such Lender had not sold or
agreed to sell any participation in such Loans, Letter of Credit Interests and
Commitments, and as if such Lender were funding each of such Loan, Letter of
Credit Interests and Commitments in the same way that it is funding the portion
of such
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Loan, Letter of Credit Interests and Commitments in which no participations have
been sold. In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder or under any
other Credit Document, except that such Lender may agree with the Participant
that it will not, without the consent of the Participant, agree to any
modification or amendment set forth in subclauses (1), (11), (111) or
(VIII) of clause (a) of the proviso to Section 12.04.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may assign and pledge
all or any portion of its Loans and its Notes to any United States Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank and, in the case of a Lender that is an investment
fund, any such Lender may assign or pledge all or any portion of its Loans and
its Notes to its trustee in support of"its obligations to its trustee, without
notice to or consent of Borrower, Administrative Agent, Arranger or Issuing
Lender. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning any Company in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants) subject, however, to the
provisions of Section 12.11. In addition, each of Administrative Agent and
Arranger may furnish any information concerning any Obligor or any of its
Affiliates in Administrative Agent's or Arranger's possession to any Affiliate
of Administrative Agent or Arranger, subject, however, to the provisions of
Section 12.11. The Obligors shall assist any Lender in effectuating any
assignment or participation pursuant to this Section 12.06 (including during
syndication) in whatever manner such Lender reasonably deems necessary,
including participation in meetings with prospective mansferees.
12.07. Survival. The obligations of the Obligors under Sections
---------
5.01, 5.05, 5.06 and 12.03, the obligations of each Guarantor under Section
6.03, and the obligations of the Lenders under Sections 5.06 and 11.02, shall
survive the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments and, in the case of any Lender that may assign
any interest in its Commitments, Loans or Letter of Credit Interest hereunder,
shall (to the extent relating to such time as it was a Lender) survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder. In addition, each representation and warranty made,
or deemed to be made by a notice of any extension of credit, herein or pursuant
hereto shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the Notes and
the making of any extension of credit hereunder, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty.
12.08. Captions. The table of contents and captions and section
---------
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
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12.09. Counterparts Interpretation, Effectiveness. This Agreement
-------------------------------------------
may be executed in counterparts (and by different parties hereto an different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to Administrative Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof, other than the indemnity,
confidentiality, waiver of jury trial and governing law provisions of the
Commitment Letter, which are not superseded and survive. Except as provided in
Section 7.01, this Agreement shall become effective when it shall have been
executed by Administrative Agent and when Administrative Agent shall have
received counterparts hereof which, when taken together, bear the signatures of
each of the other parties hereto, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
12.10. Governing Law: Submission to Jurisdiction, Waivers. Etc.
---------------------------------------------------
Each Credit Document shall be governed by, and construed in accordance with, the
law of the State of New York, without regard to the principles of conflicts of
laws thereof (except in the case of the other Credit Documents, to the extent
otherwise expressly stated therein). Each Obligor hereby irrevocably and
unconditionally: (I) submits for itself and its Property in any Proceeding
relating to any Credit Document to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Supreme Court of the State of New York sitting in New York
County, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof-, (II) consents that any such
Proceeding may be brought in any such court and waives trial by jury and any
objection that it may now or hereafter have to the venue of any such Proceeding
in any such court or that such Proceeding was brought in an inconvenient court
and agrees not to plead or claim the same; (111) agrees that service of process
in any such Proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage prepaid,
to Borrower at its address set forth in Section 12.02 or at such other address
of which Administrative Agent shall have been notified pursuant thereto; and
(IV) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction.
12.11. Confidentiality. Each Lender agrees to keep information
----------------
obtained by it pursuant hereto and the other Credit Documents identified as
confidential in writing at the time of delivery confidential in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
employees, representatives, directors, attorneys, auditors, agents, professional
advisors, trustees or affiliates who are advised of the confidential nature of
such information or to any direct or indirect contractual counter party in swap
agreements or such contractual counter party's professional advisor (so long as
such contractual counter party or professional advisor to such contractual
counter party agrees to be bound by the provision of this Section 12.11), (b) to
the extent such information presently is or hereafter becomes available to such
Lender on a non-confidential basis from any source of such information that is
in the public domain at the time of disclosure, (c) to the extent disclosure is
required by law (including
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applicable securities laws), regulation, subpoena or judicial order or process
(provide that notice of such requirement or order shall be promptly furnished to
Borrower unless such notice is legally prohibited) or requested or required by
bank, securities, insurance or investment company regulations or auditors or any
administrative body or commission (including the Securities Valuation Office of
the National Association of Insurance Commissioners) to whose jurisdiction such
Lender may be subject, (d) to any rating agency to the extent required in
connection with any rating to be assigned to such Lender, (e) to assignees or
participants or prospective assignees or participants who agree to be bound by
the provisions of this Section 12.11, (f) to the extent required in connection
with any litigation between any Obligor and any Lender with respect to the Loans
or this Agreement and the other Credit Documents or (g) with Borrower's prior
written consent.
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S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
AEI RESOURCES, MC., as Borrower
By:___________________________________
Name:
Title:
Address for Notices:
c/o AEI Resources, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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▇-▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇., ▇▇▇▇▇-▇▇▇▇▇ CO., INC.,
ACECO, INC., ▇▇▇▇▇▇ COAL COMPANY,
▇▇▇▇▇▇▇▇▇ MINING, INC., ▇▇▇▇▇▇ RESOURCES, INC.,
AEI COAL SALES COMPANY, INC., ▇▇▇▇▇▇ RESOURCES MANAGEMENT, INC.,
AEI HOLDING COMPANY, INC., MEADOWLARK, INC.,
AEI RESOURCES HOLDING, INC., MEGA MINERALS, INC.,
AMERICOAL DEVELOPMENT COMPANY, MIDWEST COAL SALES COMPANY,
APPALACHIAN REALTY COMPANY, MID-VOL LEASING, INC.
AYRSHIRE LAND COMPANY, MINING TECHNOLOGIES, INC.,
BELLAIRE TRUCKING COMMAND, MOUNTAIN-CLAY, INCORPORATED (d/b/a
BLUEGRASS COAL DEVELOPMENT COMPANY, Mountain Clay, Inc.),
Bowie Resources Limited PHOENIX LAND COMPANY,
CC COAL COMPANY, PREMIUM PROCESSING, INC.,
COAL VENTURES HOLDING COMPANY, INC., PREMIUM COAL DEVELOPMENT COMPANY,
EAST KENTUCKY ENERGY CORPORATION, PRO-LAND, INC. (d/b/a ▇▇▇▇ Coal
Company)
EMPLOYEE BENEFITS MANAGEMENT, INC., R. & F. COAL COMPANY,
ENCOAL CORPORATION, RIVER COAL COMPANY, INC.,
ENERZ CORPORATION, ROARING CREEK COAL COMPANY,
EVERGREEN MINING COMPANY, SHIPYARD RIVER COAL TERMINAL
COMPANY,
FAIRVIEW LAND COMPANY, STRAIGHT CREEK COAL RESOURCES
COMPANY,
FRANKLIN COAL SALES COMPANY, TENNESSEE MINING, INC.,
GRASSY COVE COAL MINING COMPANY, TURRIS COAL COMPANY,
HERITAGE MINING COMPANY, WYOMING COAL TECHNOLOGY, INC.,
HIGHLAND COAL, INC., ▇▇▇▇▇▇▇ COAL HOLDING COMPANY,
▇▇▇▇▇▇▇ ENVIRONMENTAL SERVICES
COMPANY,
ZENERGY, INC.,
Each as a guarantor
By:___________________________________
Name: ▇.▇. ▇▇▇▇
Title: VICE PRESIDENT
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S-3
BEECH COAL COMPANY.
CANNELTON, INC.,
CANNELTON INDUSTRIES. INC..
CANNELTON LAND COMPANY,
CANNELTON SALES COMPANY.
▇▇▇▇ COAL & DOCK COMPANY,
▇▇▇▇▇▇ HOLDINGS, INC.,
KANAWRA CORPORATION,
KINDILL HOLDING, INC.,
KINDILL MINING, INC.,
MIDWEST COAL COMPANY,
MOUNTAINEER COAL
DEVELOPMENT COMPANY,
MOUNTAIN COALS CORPORATION,
OLD BEN COAL COMPANY,
WEST VIRGINIA-INDIANA COAL
HOLDING
COMPANY, INC.,
each as a Guarantor
By: __________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: SEC SECRETARY/TREASURER
BENTLEY COAL COMPANY.
SKYLINE COAL COMPANY.
KENTUCKY PRINCE MINING
COMPANY,
each as Pledgor
By: GRASSY COVE COAL MINING
COMPANY,
ROARING CREEK COAL COMPANY,
each as General Partner of each of the
entities listed above
By: __________________________________
Name: ▇. ▇. ▇▇▇▇
Title: VICE-PRESIDENT
S-4
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NUCOAL. LLC,
as Pledgor
By: AMERICOAL DEVELOPMENT
COMPANY
ENCOAL CORPORATION
each as Member
By: _________________________________
Name: ▇. ▇. ▇ ▇ ▇ ▇
Title: VIC E-P RE S I D E N T
Address for Notices for all Guarantors:
c/o AEI Resources. Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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S-5
UBS AG, Stamford Branch,
as Administrative Agent. Issuing Lender and
as a Lender
By: ___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
Leveraged Finance
Address for Notices:
UBS AG. Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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S-6
WARBURG DILLON READ LLC.
as Syndication Agent. and Arranger
By: ___________________________________
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
High Yield Corporate Finance
Address for Notices:
Warburg Dillon Read LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.:(▇▇▇) ▇▇▇-▇▇▇▇
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ANNEX A
ALLOCATIONS
As of the Closing Date:
Allocation
-----------------------------------------------------
Revolving Tranche A Tranche B
Credit Term Loan Term Loan
Institution Commitments Commitment Commitment Total
------------------------------------------- ------------ ------------ ------------ ------------
UBS AG. $350,000,000 $150,000,000 $250,000,000 $750,000,000
Total $350,000,000 $150,000,000 $250,000,000 $750,000,000
============ ============ ============ ============
As of the Amendment and Restatement Date:
Allocation
--------------------------------------------------------------------
Revolving Outstanding Tranche A Outstanding
Credit Tranche A Term Loan Tranche B
Institution Commitments Term Loans Commitment Term Loans Total
------------------------------------------- ------------ ------------ ------------ ------------ ------------
UBS AG. $300,000,000 $150,000,000 $175,000,000 $250,000,000 $875,000,000
Total $300,000,000 $150.000,000 $175,000,000 $250,000.000 $875,000,000
============ ============ ============ ============ ============
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