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EXHIBIT 10.1
$100,000,000
CREDIT AGREEMENT
Dated as of August 12, 1999
Among
ALLIANCE RESOURCE GP, LLC
as Borrower
and
THE INITIAL LENDERS AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders and Swing Line Bank
and
THE CHASE MANHATTAN BANK
as Paying Agent
and
THE CHASE MANHATTAN BANK and CITICORP USA, INC.
as Co-Administrative Agents
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.....................................................................2
SECTION 1.03. Accounting Terms.........................................................................34
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Term Advances...................................................34
SECTION 2.02. Making the Advances......................................................................35
SECTION 2.03. Repayment of Advances....................................................................37
SECTION 2.04. Termination or Reduction of the Commitments .............................................38
SECTION 2.05. Prepayments..............................................................................39
SECTION 2.06. Interest.................................................................................40
SECTION 2.07. Fees.....................................................................................42
SECTION 2.08. Conversion of Advances...................................................................42
SECTION 2.09. Increased Costs, Etc.....................................................................44
SECTION 2.10. Payments and Computations................................................................45
SECTION 2.11. Taxes....................................................................................47
SECTION 2.12. Sharing of Payments, Etc.................................................................49
SECTION 2.13. Use of Proceeds..........................................................................50
SECTION 2.14. Defaulting Lenders.......................................................................50
SECTION 2.15. Evidence of Debt.........................................................................53
SECTION 2.16. Replacement of Certain Lenders...........................................................53
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit......................................54
SECTION 3.02. Conditions Precedent to Each Borrowing...................................................59
SECTION 3.03. Determinations Under Section 3.01........................................................60
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower...........................................60
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants....................................................................68
SECTION 5.02. Negative Covenants.......................................................................71
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SECTION 5.03. Reporting Requirements...................................................................80
SECTION 5.04. Financial Covenants......................................................................83
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................................................87
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action.................................................................91
SECTION 7.02. Agents' Reliance, Etc....................................................................91
SECTION 7.03. Chase, Citicorp and Affiliates...........................................................92
SECTION 7.04. Lender Party Credit Decision.............................................................92
SECTION 7.05. Indemnification..........................................................................92
SECTION 7.06. Successor Agents.........................................................................93
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc..........................................................................95
SECTION 8.02. Notices, Etc.............................................................................96
SECTION 8.03. No Waiver; Remedies......................................................................96
SECTION 8.04. Costs and Expenses.......................................................................96
SECTION 8.05. Right of Set-off.........................................................................98
SECTION 8.06. Binding Effect...........................................................................99
SECTION 8.07. Assignments and Participations...........................................................99
SECTION 8.08. Execution in Counterparts...............................................................102
SECTION 8.09. Confidentiality.........................................................................103
SECTION 8.10. Release of Collateral...................................................................103
SECTION 8.11. Jurisdiction, Etc.......................................................................103
SECTION 8.12. Governing Law...........................................................................104
SECTION 8.13. Non-Recourse to the General Partner and Associated Persons..............................104
SECTION 8.14. Waiver of Jury Trial....................................................................104
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule 4.01(a) - Capital Stock
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(p) - Plans, Multiemployer Plans and Welfare Plans
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Schedule 4.01(q) - Environmental Disclosure
Schedule 4.01(r) - Open Years
Schedule 4.01(t) - Existing Debt
Schedule 4.01(u) - Surviving Debt
Schedule 4.01(v) - Liens
Schedule 4.01(w) - Investments
Schedule 4.01(x) - Material Contracts
Schedule 5.01(q) - Transactions with Affiliates
EXHIBITS
Exhibit A-1 - Form of Working Capital Note
Exhibit A-2 - Form of Term Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Subsidiary Guaranty
Exhibit F - Form of Solvency Certificate
Exhibit G - Form of Opinion of Counsel to the Loan Parties
Exhibit H - Form of Assumption Agreement
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of August 12, 1999 among ALLIANCE
RESOURCE GP, LLC, a Delaware limited liability company (the "COMPANY"), the
banks, financial institutions and other institutional lenders listed on the
signature pages hereof as the Initial Lenders (the "INITIAL LENDERS"), the
Swing Line Bank (as hereinafter defined), THE CHASE MANHATTAN BANK ("CHASE"),
as paying agent (together with any successor paying agent appointed pursuant to
Article VII, the "PAYING AGENT"), and CITICORP USA, INC. ("CITICORP") and
CHASE, as co-administrative agents (together with any successor administrative
agent appointed pursuant to Article VII, the "CO-ADMINISTRATIVE AGENTS" and,
together with the Paying Agent, the "AGENTS") for the Lender Parties (as
hereinafter defined).
PRELIMINARY STATEMENTS:
(1) Alliance Resource Partners, L.P., a Delaware limited
partnership (the "MLP"), intends to complete an initial public offering (the
"INITIAL PUBLIC OFFERING") of common units (the "MLP UNITS"), representing an
approximate 57.7% ownership interest in the MLP on a fully diluted basis and
yielding net proceeds of approximately $[140,000,000], and the remainder of
which will be owned by the Equity Investor (as hereinafter defined) or one or
more of its affiliates.
(2) The Company intends to issue at least $180,000,000 of
senior notes as most recently amended (as defined in Section 1.02) (the "SENIOR
NOTES") in a private placement pursuant to the Note Purchase Agreement (as
hereinafter defined). Immediately upon the closings under the Note Purchase
Agreement and this Agreement, Alliance Resource Operating Partners, L.P., a
Delaware limited partnership ("AROP"), will assume the obligations of the
Company under the Loan Documents and under the Note Purchase Agreement and the
Senior Notes. The Initial Public Offering, the issuance and sale of the Senior
Notes, the making of the Advances (as hereinafter defined) under this Agreement
and all related transactions are hereinafter collectively referred to as the
"TRANSACTION". As used herein, the term "BORROWER" shall mean (i) prior to the
time the Assumption Agreement (as hereinafter defined) shall become effective,
the Company, and (ii) thereafter, AROP.
(3) The Borrower has requested the Lender Parties lend to the
Borrower up to $100,000,000 to purchase Qualifying Securities (as hereinafter
defined) that will be liquidated from time to time to finance certain capital
expenditures of AROP and its Subsidiaries (as hereinafter defined), to pay cash
distributions to the holders of the MLP Units, to provide working capital for
the Borrower and its Subsidiaries and for other general business purposes of
AROP and its Subsidiaries (including, without limitation, acquisitions and
capital expenditures). The Lender Parties have indicated their willingness to
agree to lend such amount on the terms and conditions of this Agreement.
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NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ACCEPTABLE BANK" means (a) any bank or trust company (i)
which is organized under the laws of the United States of America or
any State thereof, (ii) which has capital, surplus and undivided
profits aggregating at least $500,000,000, and (iii) (A) whose
long-term unsecured debt obligations (or the long-term unsecured debt
obligations of the holding company owning all of the capital stock of
such bank or trust company) shall have been given a rating of "AA-" or
better by S&P, "Aa3" or better by ▇▇▇▇▇'▇ or an equivalent rating by
any other credit rating agency of recognized national standing or (B)
the commercial paper or other short-term unsecured debt obligations of
which (or the short-term unsecured debt obligations of the holding
company owning all of the capital stock of such bank or trust company)
shall have been given a rating of "Al " or better by S&P or "Prime 1"
or better by ▇▇▇▇▇'▇ or an equivalent rating by any other credit
rating agency of recognized national standing or (b) any Lender Party.
"ACCEPTABLE BROKER-DEALER" means any Person other than a
natural person (a) which is registered as a broker or dealer pursuant
to the Exchange Act and (b) whose long-term unsecured debt obligations
shall have been given a rating of "AA-" or better by S&P, "Aa3" or
better by ▇▇▇▇▇'▇ or an equivalent rating by any other credit rating
agency of recognized national standing.
"ADVANCE" means a Term Advance, a Working Capital Advance, a
Revolving Credit Advance or a Swing Line Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
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Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Borrower; provided,
however, the Borrower shall not be an Affiliate of any Restricted
Subsidiary and no Restricted Subsidiary shall be an Affiliate of the
Borrower or any Restricted Subsidiary.
"AGENTS" has the meaning specified in the recital of parties
to this Agreement.
"ALLIANCE RESOURCE GROUP" means the Wholly Owned Subsidiaries
of Alliance Resource Holdings, Inc., a Delaware corporation.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender Party, such Lender Party's Domestic Lending Office in the case
of a Base Rate Advance and such Lender Party's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means (a) in the case of Secured
Advances, (i) during the period from the Effective Date to the
one-year anniversary of the Effective Date, in the case of Eurodollar
Rate Advances, 0.75% per annum and, in the case of Base Rate Advances,
0% per annum, (ii) during the period from the one-year anniversary of
the Effective Date to the two-year anniversary of the Effective Date,
in the case of Eurodollar Rate Advances, 1.25% per annum and, in the
case of Base Rate Advances, 0.25% per annum, and (iii) thereafter, a
percentage per annum determined by reference to the Consolidated Net
Debt to Consolidated Cash Flow Ratio as set forth below and (b) in the
case of all other Advances, (i) during the period from the Effective
Date to the six-month anniversary of the Effective Date, in the case
of Eurodollar Rate Advances, 1.5% per annum, and in the case of Base
Rate Advances, 0.5% per annum, and (ii) thereafter, a percentage per
annum determined by reference to the Consolidated Net Debt to
Consolidated Cash Flow Ratio as set forth below:
Consolidated Net Debt to
Consolidated Cash Flow Ratio Base Rate Advances Eurodollar Rate Advances
Level I
less than 1.75:1.0 0.00% 1.00%
Level II
1.75:1.0 or greater,
but less than 2.50:1.0 0.25% 1.25%
Level III
2.50:1.0 or greater,
but less than 3.50:1.0 0.50% 1.50%
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Level IV
3.50:1.0 or greater 0.75% 1.75%
In the case of Advances for which the Applicable Margin is determined
based on the preceding table, the Applicable Margin for each Advance
shall be determined by reference to the Consolidated Net Debt to
Consolidated Cash Flow Ratio in effect from time to time which ratio
shall be determined by reference to the financial statements most
recently delivered in accordance with Section 5.03(b) or (c), as the
case may be; provided, however, that the Applicable Margin shall be at
Level IV for so long as the Borrower has not submitted to the Paying
Agent the financial statements as and when required under Section
5.03(b) or (c), as the case may be.
"APPLICABLE PERCENTAGE" means (a) during the period from the
date hereof to the six-month anniversary hereof, 0.50% per annum and
(b) thereafter, a percentage per annum determined by reference to the
Consolidated Net Debt to Consolidated Cash Flow Ratio as set forth
below:
Consolidated Net Debt to
Consolidated Cash Flow Ratio Applicable Percentage
Level I
less than 1.75:1.0 0.375%
Level II
1.75:1.0 or greater,
but less than 2.50:1.0 0.375%
Level III
2.50:1.0 or greater,
but less than 3.50:1.0 0.500%
Level IV
3.50:1.0 or greater 0.500%
In the case of the Applicable Percentage specified in clause (b), the
Applicable Percentage shall be determined by reference to the
Consolidated Net Debt to Consolidated Cash Flow Ratio, in effect from
time to time, which ratio shall be determined by reference to the
financial statements most recently delivered in accordance with
Section 5.03(b) or (c), as the case may be; provided, however, that
the Applicable Margin shall be at Level IV for so long as the Borrower
has not submitted to the Paying
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Agent the financial statements as and when required under Section
5.03(b) or (c), as the case may be.
"APPROPRIATE LENDER" means, at any time, with respect to (a)
any of the Term or Revolving Credit or Working Capital Facilities, a
Lender that has a Commitment with respect to such Facility at such
time, or (b) the Swing Line Facility, (i) the Swing Line Bank and (ii)
if the Revolving Credit Lenders have made Swing Line Advances pursuant
to Section 2.02(b) that are outstanding at such time, each such
Revolving Credit Lender.
"AROP" has the meaning specified in Preliminary Statement
(2).
"ASSET ACQUISITION" means (a) an Investment by the Borrower
or any Restricted Subsidiary in any other Person pursuant to which
such Person shall become a Restricted Subsidiary or shall be merged
with or into the Borrower or any Restricted Subsidiary, (b) the
acquisition by the Borrower or any Restricted Subsidiary of the assets
of any Person (other than a Restricted Subsidiary) which constitute
all or substantially all of the assets of such Person or (c) the
acquisition by the Borrower or any Restricted Subsidiary of any
division or line of business of any Person (other than a Restricted
Subsidiary).
"ASSIGNMENT AND ACCEPTANCE" means an assignment and
acceptance entered into by a Lender Party and an Eligible Assignee,
and accepted by the Paying Agent, in accordance with Section 8.07 and
in substantially the form of Exhibit C hereto.
"ASSUMPTION AGREEMENT" has the meaning specified in Section
3.01(a)(x).
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by The
Chase Manhattan Bank in New York, New York, from time to
time, as its prime rate; and
(b) 1/2 of 1% per annum above the Federal Funds
Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"BEACON INVESTORS" means collectively, The Beacon Group
Energy Investment Fund, L.P., a Delaware limited partnership, and MPC
Partners, L.P., a Delaware limited partnership.
"BEACON CONTROLLED AFFILIATE" means any Person which directly
or indirectly, is in control of, is controlled by, or is under common
control with The Beacon Group
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Energy Investment Fund, L.P. or the Equity Investor or its Affiliates;
for purposes of this definition, "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person shall mean the power, direct or indirect, to direct or cause
the direction of the management and policies of such Person whether by
contract or otherwise, but shall not include any Person who is a
director or officer of any Beacon Investor or such Person.
"BORROWER" has the meaning specified in Preliminary Statement
(2).
"BORROWER'S ACCOUNT" means the account of the Borrower
maintained by the Borrower with Chase at its office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. __________, or such
other account as the Borrower shall specify in writing to the Paying
Agent.
"BORROWING" means a Term Borrowing, a Working Capital
Borrowing, a Revolving Credit Borrowing or a Swing Line Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"BUSINESS PLAN" means a rolling five year business plan for
the Borrower which shall include, without limitation, forecasts
prepared by management of the Borrower, in form satisfactory to the
Co-Administrative Agents, of balance sheets, income statements and
cash flow statements on an annual basis for each of the next five
Fiscal Years and which shall set forth (without limitation) mine
development plans, an analysis of business outlook (including the
▇▇▇▇▇▇ County Project) for the term of the Facility in form and scope
satisfactory to the Co-Administrative Agents, capital expenditures,
coal reserve profiles, property acquisitions, production levels and
other similar items, which Business Plan may be revised by the
Borrower from time to time to reflect changes in operating and market
conditions.
"CAPITAL EXPENDITURES" means, for any Person for any period,
the sum of, without duplication, all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or
for replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance
sheet of such Person or have a useful life of more than one year.
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"CAPITAL LEASE" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the acquisition
of an asset and the incurrence of a liability in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" means, with respect to any Person
and a Capital Lease, the amount of the obligation of such Person as
the lessee under such Capital Lease which would, in accordance with
GAAP, appear as a liability on a balance sheet of such Person.
"CAPITAL STOCK" shall mean, with respect to any Person, any
and all shares, units representing interests, participations, rights
in or other equivalents (however designated) of such Person's capital
stock, including, (a) with respect to partnerships, partnership
interests (whether general or limited) and any other interest or
participation that confers upon a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such
partnership, (b) with respect to limited liability companies, member
interests, and (c) with respect to any Person, any rights (other than
debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock.
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the Borrower or any of its Restricted Subsidiaries free and
clear of all Liens other than Liens created under the Pledge Agreement
and, unless otherwise specified below, having a maturity of not
greater than two years from the date of acquisition thereof:
(a) United States Governmental Securities maturing
within one year (or, in the case of Qualifying Securities,
two years) from the date of acquisition;
(b) certificates of deposit, banker's acceptances or
other bank instruments maturing within one year from the date
of acquisition thereof, issued by Acceptable Banks;
(c) Repurchase Agreements;
(d) obligations of any state of the United States of
America, or any municipality of any such state, in each case
rated "AA" or better by S&P, "Aa2" or better by ▇▇▇▇▇'▇ or an
equivalent rating by any other credit rating agency of
recognized national standing, provided that such obligations
mature within one year from the date of acquisition thereof;
and
(e) commercial paper maturing in 270 days or less
from the date of issuance which, at the time of acquisition
by the Borrower or any Restricted
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Subsidiary, is rated A-l or better by S&P or P1 or better by
▇▇▇▇▇'▇ or an equivalent rating by any other credit rating
agency of recognized national standing.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CHANGE OF CONTROL" means the occurrence of either of the
following: (a) Beacon Investors and the Beacon Controlled Affiliates
shall at any time for any reason cease collectively to own, directly
or indirectly, at least 51% of the managing ownership interest of the
sole or managing general partner, as the case may be, of the Borrower
or (b) the managing general partner of the Borrower shall at any time
for any reason cease to be either the sole or managing general partner
of Alliance Resource Partners, L.P.
"CHASE" has the meaning specified in the recital of parties
to this Agreement.
"CITICORP" has the meaning specified in the recital of
parties to this Agreement.
"CO-ADMINISTRATIVE AGENTS" has the meaning specified in the
recital of parties to this Agreement.
"COLLATERAL" means all "Collateral" referred to in the Pledge
Agreement and all other property that is or is intended to be subject
to any Lien in favor of the Paying Agent for the benefit of the
Secured Parties.
"COMMITMENT" means a Term Commitment, a Working Capital
Commitment, a Revolving Credit Commitment or a Swing Line Commitment.
"COMPANY" has the meaning specified in the recital of parties
to this Agreement.
"CONFIDENTIAL INFORMATION" means information that any Loan
Party furnishes to any Agent or any Lender Party as confidential;
provided, however, that such term does not include any such
information that is or becomes generally available to the public or
that is or becomes available to such Agent or such Lender Party from a
source other than the Loan Parties (it being understood that except as
set forth in the proviso, all information that any Loan Party submits
to any Agent or any Lender Party is confidential).
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"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONSOLIDATED CASH FLOW" means, as of any date of
determination for any applicable period, the excess, if any, of (a)
the sum of, without duplication, the amounts for such period, taken as
a single accounting period, of (i) Consolidated Net Income for such
period, plus (ii) to the extent deducted in the determination of
Consolidated Net Income for such period, without duplication, (A)
Consolidated Non-Cash Charges, (B) Consolidated Interest Expense and
(C) Consolidated Income Tax Expense, over (b) any non-cash items
increasing Consolidated Net Income for such period to the extent that
such items constitute reversals of Consolidated Non-Cash Charges for a
previous period and which were included in the computation of
Consolidated Cash Flow for such previous period pursuant to the
provisions of the preceding clause (a), provided that in calculating
Consolidated Cash Flow for any such period, (1) full effect shall be
given to the proviso to the definition of "Consolidated Interest
Expense" set forth below and (2) Consolidated Cash Flow shall be
calculated after giving effect on a pro forma basis for such period,
in all respects in accordance with GAAP, to any Transfer or Asset
Acquisitions (including, without limitation any Asset Acquisition by
the Borrower or any Restricted Subsidiary giving rise to the need to
determine Consolidated Cash Flow as a result of the Borrower or one of
its Restricted Subsidiaries (including any Person that becomes a
Restricted Subsidiary as result of any such Asset Acquisition)
incurring, assuming or otherwise becoming liable for any Debt)
occurring during the period commencing on the first day of such period
to and including the date of the transaction, as if such Transfer or
Asset Acquisition occurred on the first day of such period.
"CONSOLIDATED INCOME TAX EXPENSE" means, with respect to any
period, all provisions for Federal, state, local and foreign income
taxes of the Borrower and its Restricted Subsidiaries for such period
as determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, as of the date of any
determination for any applicable period, the sum (without duplication)
of the following (in each case, eliminating all offsetting debits and
credits between the Borrower and its Restricted Subsidiaries and all
other items required to be eliminated in the course of the preparation
of consolidated financial statements of the Borrower and its
Restricted Subsidiaries in accordance with GAAP): (a) all interest in
respect of Debt of the Borrower and its Restricted Subsidiaries
whether paid or accrued (including non-cash interest payments and
imputed interest on Capital Lease Obligations) deducted in determining
Consolidated Net Income for such period, and (b) all debt discount
(but not expense) amortized or required to be amortized in the
determination of Consolidated Net Income for such period, less (c) all
interest earned or accrued with respect to Qualifying Securities
during such period; provided that for purposes of calculating the
Consolidated Net Debt to
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Consolidated Cash Flow Ratio, Consolidated Interest Expense shall be
determined on a pro forma basis giving effect to the incurrence of all
Debt (and the application of proceeds thereof) which either (x) is the
subject of such computation, or (y) was issued after the end of such
period and prior to such date of computation, as if all of such Debt
had been incurred (and the proceeds thereof applied) on the first day
of such period. In computing Consolidated Interest Expense for any
period prior to the end of the first four fiscal quarters ending after
the Effective Date, Consolidated Interest Expense of the Borrower and
the Restricted Subsidiaries shall be determined with respect to the
principal amount of Debt actually outstanding from time to time but on
the basis of interest accruing at a rate equal to the weighted average
interest rate payable on the date of determination with respect to
Debt outstanding under the Senior Notes and this Agreement, rather
than the rates of interest actually applicable to the Debt refinanced
thereby.
"CONSOLIDATED NET DEBT" means, as of any date of
determination, the aggregate outstanding principal amount of all Debt
of the Borrower and its Restricted Subsidiaries outstanding on such
date, after eliminating all offsetting debits and credits between the
Borrower and its Restricted Subsidiaries and all other items required
to be eliminated in the course of the preparation of consolidated
financial statements of the Borrower and its Restricted Subsidiaries
in accordance with GAAP; less the principal amount of all Qualifying
Securities held by the Borrower and its Restricted Subsidiaries.
"CONSOLIDATED NET DEBT TO CONSOLIDATED CASH FLOW RATIO"
means, at any date of determination, the ratio of Consolidated Net
Debt of the Borrower and its Restricted Subsidiaries as at the end of
the most recently ended fiscal quarter of the Borrower for which
financial statements are required to be delivered to the Lender
Parties pursuant to Section 5.03(b) or (c), as the case may be, to
Consolidated Cash Flow of the Borrower and its Restricted Subsidiaries
for such fiscal quarter and the immediately preceding three fiscal
quarters; provided, however, that for purposes of calculating the
Consolidated Net Debt to Consolidated Cash Flow Ratio for the periods
commencing on October 1, 1999 and ending on the last day of the fiscal
quarters of the Borrower ending December 31, 1999, March 31, 2000 and
June 30, 2000, Consolidated Cash Flow for purposes of this definition
shall be the actual Consolidated Cash Flow for such period multiplied
by a fraction the numerator of which is four and the denominator of
which is the actual number of fiscal quarters that have elapsed since
October 1, 1999.
"CONSOLIDATED NET INCOME" means, with reference to any
period, the net income (or loss) of the Borrower and its Restricted
Subsidiaries for such period (taken as a cumulative whole), as
determined in accordance with GAAP, provided that there shall be
excluded:
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(a) the income (or loss) of any Person accrued prior
to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or a Subsidiary, and the
income (or loss) of any Person, substantially all of the
assets of which have been acquired in any manner, realized by
such other Person prior to the date of acquisition,
(b) the income (or loss) of any Person (other than a
Restricted Subsidiary) in which the Borrower or any
Restricted Subsidiary has an ownership interest, except to
the extent that any such income has been actually received by
the Borrower or such Restricted Subsidiary in the form of
cash dividends or similar cash distributions,
(c) the undistributed earnings of any Restricted
Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted
Subsidiary is not at the time permitted by the terms of its
charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
such Restricted Subsidiary,
(d) any aggregate net gain or loss during such
period arising from the sale, conversion, exchange or other
disposition of capital assets (such term to include, without
limitation, (i) all non-current assets, and, without
duplication, (ii) the following, whether or not current: all
fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets, and
all Securities), and
(e) any net income or gain or loss during such
period from (i) any change in accounting principles in
accordance with GAAP, (ii) any prior period adjustments
resulting from any change in accounting principles in
accordance with GAAP, or (iii) any extraordinary or unusual
items.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to the
Borrower and its Restricted Subsidiaries for any period, the aggregate
depreciation, depletion and amortization (other than amortization of
debt discount and expense), the non-cash portion of advance royalties
and any non-cash employee compensation expenses for such period, in
each case, reducing Consolidated Net Income of the Borrower and its
Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"CONSTITUTIVE DOCUMENTS" means, with respect to any Person,
the certificate of incorporation or registration or formation
(including, if applicable, certificate of change of name), articles of
incorporation or association, memorandum of association, charter,
16
12
bylaws, partnership agreement, trust agreement, joint venture
agreement, limited liability company operating or members agreement,
joint venture agreement or one or more similar agreements, instruments
or documents constituting the organization or formation of such
Person.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement
dated as of August 12, 1999 between the Company and AROP, as most
recently amended in accordance with this Agreement.
"CONTRIBUTION TRANSACTION" has the meaning specified in
Section 3.01(m).
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.06(d), 2.08 or 2.09.
"CURRENT ASSETS" of any Person means all assets of such
Person that would, in accordance with GAAP, be classified as current
assets, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"CURRENT LIABILITIES" of any Person means (a) all Debt of
such Person that by its terms is payable on demand or matures within
one year after the date of determination (excluding current maturities
of long term Debt and any Debt renewable or extendible, at the option
of such Person, to a date more than one year from such date or arising
under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one
year from such date), and (b) all other items (including taxes accrued
as estimated) that in accordance with GAAP would be classified as
current liabilities of such Person.
"DEBT" means, with respect to any Person, without
duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price
of property acquired by such Person (excluding accounts
payable arising in the ordinary course of business but
including, without limitation, all liabilities created or
arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) its Capital Lease Obligations;
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13
(d) all liabilities secured by any Lien with respect
to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of
credit or instruments serving a similar function issued or
accepted for its account by banks or other financial
institutions (whether or not representing obligations for
borrowed money), other than any thereof incurred in the
ordinary course of business of such Person and which are
issued (i) to support such Person's obligations in respect of
workmen's compensation or unemployment insurance laws, the
payment of retirement benefits or performance guarantees
relating to coal deliveries or insurance deductibles and
aggregating no more than $10,000,000 at any time outstanding
for all of the foregoing or (ii) in respect of current trade
payables of such Person;
(f) Swaps of such Person, to the extent required to
be reflected on a balance sheet of such Person prepared as of
any date of determination in accordance with GAAP;
(g) Preferred Stock of Restricted Subsidiaries owned
by Persons other than the Borrower, a Subsidiary Guarantor or
a Wholly-Owned Restricted Subsidiary; and
(h) any Guaranty of such Person with respect to
liabilities of a type described in any of clauses (a) through
(g) hereof.
Debt of any Person shall include all obligations of such
Person of the character described in clauses (a) through (h) to the
extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be extinguished
under GAAP.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party
at any time, the portion of any Advance required to be made by such
Lender Party to the Borrower pursuant to Section 2.01 or 2.02 at or
prior to such time that has not been made by such Lender Party or by
the Paying Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.14(a),
the remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made
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pursuant to Section 2.01 on the same date as the Defaulted Advance so
deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Swing Line Bank pursuant to Section
2.02(b) to purchase a portion of a Swing Line Advance made by the
Swing Line Bank, (b) the Paying Agent pursuant to Section 2.02(e) to
reimburse the Paying Agent for the amount of any Advance made by the
Paying Agent for the account of such Lender Party, (c) any other
Lender Party pursuant to Section 2.12 to purchase any participation in
Advances owing to such other Lender Party and (d) any Agent pursuant
to Section 7.05 to reimburse such Agent for such Lender Party's
ratable share of any amount required to be paid by the Lender Parties
to such Agent as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.14(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party
that, at such time (a) owes a Defaulted Advance or a Defaulted Amount
or (b) shall take any action or be the subject of any action or
proceeding of a type described in Section 6.01(f).
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(i).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Paying Agent.
"DOMESTIC SUBSIDIARY" means any Subsidiary other than a
Foreign Subsidiary.
"EFFECTIVE DATE" means the first date on which the conditions
set forth in Article III shall have satisfied.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender that qualifies under clause (c), (d), (e), or (f) of this
definition; (c) a commercial bank organized under the laws of the
United States, or any state thereof, and having total assets in excess
of $1,000,000,000; (d) a commercial bank organized under the laws of
any other country
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15
which is a member of the OECD, or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000; provided
that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a
member of the OECD; (e) the central bank of any country which is a
member of the OECD; and (f) any other financial institution approved
by the Paying Agent and, unless a Default has occurred and is
continuing at the time any assignment is effected pursuant to Section
8.07, the Borrower (which approvals shall not be unreasonably withheld
or delayed); provided, however, that neither any Loan Party nor any
Affiliate of a Loan Party, nor any competitor, or Affiliate of a
competitor, of the Borrower shall qualify as an Eligible Assignee
under this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any Federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ,
judgment, injunction, decree or judicial or agency interpretation,
policy or guidance relating to pollution or protection of the
environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous
Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"EQUITY INVESTOR" means The Beacon Group, LP, a Delaware
limited partnership.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of
Section 414 of the Internal Revenue Code.
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16
"ERISA EVENT" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC or (ii) the requirements of Section
4043(b) of ERISA apply with respect to a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such
Plan, pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan
Party or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for imposition of a lien under Section
302(f) of ERISA shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Paying Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) (i) the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in
U.S. dollars at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period for a period equal to such Interest
Period (provided that, if for any reason such rate is not available,
the term "Eurodollar Rate" shall mean, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, the
rate per annum (rounded upwards,
21
17
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars
at approximately 11:00 A.M. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates) by (ii) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period
or (b) upon 3 Business Days' prior written request by the Borrower to
the Paying Agent, (i) the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period (or, if such Reference Bank
shall not have such a Eurodollar Rate Advance, $1,000,000) and for a
period equal to such Interest Period by (ii) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Paying Agent on the basis of applicable rates
furnished to and received by the Paying Agent from the Reference Banks
two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.06.
"EURODOLLAR RATE ADVANCE" means an Advance that bears
interest as provided in Section 2.06(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section
6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
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"EXISTING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before giving effect to the
consummation of the Transaction.
"FACILITY" means the Term Facility, the Working Capital
Facility, the Revolving Credit Facility or the Swing Line Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day for such
transactions received by the Paying Agent from three Federal funds
brokers of recognized standing selected by it.
"FEE LETTER" means the fee letter dated July 6, 1999 between
the Borrower and the Agents, as amended.
"FISCAL YEAR" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"FOREIGN SUBSIDIARY" means a Subsidiary organized under the
laws of a jurisdiction other than the United States or any State
thereof or the District of Columbia.
"GAAP" has the meaning specified in Section 1.03.
"GENERAL PARTNER" means Alliance Resource Management GP, LLC,
a Delaware limited liability company.
"▇▇▇▇▇▇ COUNTY PROJECT" means the mining development project
on the property of the Borrower located in ▇▇▇▇▇▇ County, Indiana.
"GREENFIELD PROJECT" means any mine development project
involving the expenditure of greater than $5,000,000 for the
development of mine infrastructure to access unmined reserves.
"GUARANTY" and, with correlative meaning, "GUARANTEED" means,
with respect to any Person, any obligation (except the endorsement in
the ordinary course of business of negotiable instruments for deposit
or collection) of such Person guaranteeing or in effect guaranteeing
any Debt of any other Person in any manner, whether directly or
indirectly,
23
19
including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a) to purchase such Debt or any property constituting
security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such Debt, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other
Person or otherwise to advance or make available funds for the
purchase or payment of such Debt;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Debt of the
ability of any other Person to make payment of the Debt; or
(d) otherwise to assure the owner of such Debt against loss
in respect thereof.
In any computation of the Debt of the obligor under any
Guaranty, the Debt that is the subject of such Guaranty shall be
assumed to be a direct obligation of such obligor. The amount of any
Guaranty shall be equal to the outstanding amount of the Debt
guaranteed, or such lesser amount to which the maximum exposure of
such Person shall have been specifically limited.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INFORMATION MEMORANDUM" means the information memorandum
dated July 1999 used by the Joint Arrangers in connection with the
syndication of the Commitments.
"INITIAL EXTENSION OF CREDIT" means the initial Borrowing
hereunder.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INITIAL PUBLIC OFFERING" has the meaning specified in
Preliminary Statement (1).
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"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTEREST COVERAGE RATIO" means, at any date of
determination, the ratio of (a) Consolidated Cash Flow to (b)
Consolidated Interest Expense during the four consecutive fiscal
quarters most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be; provided, however, that for
purposes of calculating the Interest Coverage Ratio for the fiscal
quarters of the Borrower ending December 31, 1999, March 31, 2000 and
June 30, 2000, each component of the Interest Coverage Ratio for
purposes of this definition shall be the actual amount of such
component for the period ending at the end of such fiscal quarter
since October 1, 1999 multiplied by a fraction the numerator of which
is four and the denominator of which is the number of fiscal quarters
that have elapsed since October 1, 1999.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending
on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six or, if available to each Appropriate Lender,
nine or twelve months, as the Borrower may, upon notice received by
the Paying Agent not later than 12:00 noon (New York City time) on the
third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for
such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur
on the next succeeding Business Day, provided, however, that,
25
21
if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"INVENTORY" means inventory held for sale or lease in the
ordinary course of business.
"INVESTMENT" means any investment, made in cash or by
delivery of property, by the Borrower or any of its Restricted
Subsidiaries (a) in any Person, whether by acquisition of stock, debt
or other obligations or Security, or by loan, guaranty of any debt,
advance, capital contribution or otherwise, or (b) in any property.
"JOINT ARRANGERS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Chase
Securities, Inc. and/or its Affiliates.
"LENDER PARTY" means any Lender or the Swing Line Bank.
"LENDERS" means the Initial Lenders and each Person that
shall become a Lender hereunder pursuant to Section 8.07 for so long
as such Initial Lender or Person, as the case may be, shall be a party
to this Agreement.
"LIEN" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest, production payment or other
encumbrance, or any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or
other title retention agreement or Capital Lease, upon or with respect
to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements); provided, however, "Lien" shall not include any
negative pledge.
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c)
the Subsidiary Guaranty, (d) the Pledge Agreement, (e) the Fee Letter
and (f) the Assumption Agreement, in each case as amended.
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22
"LOAN PARTIES" means the Company, AROP and the Subsidiary
Guarantors.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change
in the business, operations, affairs, financial condition, assets or
properties of the Borrower and its Restricted Subsidiaries, taken as a
whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets or
properties of the Borrower and its Restricted Subsidiaries taken as a
whole, (b) the ability of the Borrower to perform its payment
obligations, its obligations under Article V or any other material
obligations under any Loan Document to which it is a party, (c) the
ability of any Subsidiary Guarantor to perform its payment obligations
or other material obligations under the Subsidiary Guaranty, or (d)
the validity or enforceability of any Loan Document.
"MLP" has the meaning specified in Preliminary Statement (1).
"MLP AGREEMENT" means the First Amended and Restated
Agreement of Limited Partnership of Alliance Resource Partners, L.P.,
as amended, to the extent permitted under the Loan Documents.
"MLP UNITS" has the meaning specified in Preliminary
Statement (1).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, lease,
transfer or other disposition of any asset or the incurrence or
issuance of any Debt or the sale or issuance of any Capital Stock
(including, without limitation, any capital contribution) by any
27
23
Person, the aggregate amount of cash received from time to time
(whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection
with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other
similar fees and commissions, and (b) the amount of taxes payable in
connection with or as a result of such transaction and (c) the amount
of any Debt secured by a Lien on such asset that, by the terms of the
agreement or instrument governing such Debt, is required to be repaid
upon such disposition, in each case to the extent, but only to the
extent, that the amounts so deducted are, at the time of receipt of
such cash, actually paid to a Person that is not an Affiliate of such
Person or any Loan Party or any Affiliate of any Loan Party and are
properly attributable to such transaction or to the asset that is the
subject thereof.
"NOTE" means a Term Note, a Working Capital Note or a
Revolving Credit Note.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement
dated as of August 1, 1999 among the Borrower and the purchasers of
the Senior Notes, pursuant to which the Senior Notes are issued, as
amended, to the extent permitted under the Loan Documents.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, for purposes of the Pledge Agreement and
the Subsidiary Guaranty, with respect to any Loan Party, any payment,
performance or other obligation of such Loan Party of any kind,
including, without limitation, any liability of such Loan Party on any
claim, whether or not the right of any creditor to payment in respect
of such claim is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, disputed, undisputed, legal, equitable, secured
or unsecured, and whether or not such claim is discharged, stayed or
otherwise affected by any proceeding referred to in Section 6.01(f),
including without limitation, (a) the obligation to pay principal,
interest, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by such Loan Party under any
Loan Document and (b) the obligation of such Loan Party to reimburse
any amount in respect of any of the foregoing that any Lender Party,
in its sole discretion, may elect to pay or advance on behalf of such
Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OPEN YEAR" has the meaning specified in Section
4.01(r)(iii).
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"OTHER TAXES" has the meaning specified in Section 2.11(b).
"PARTNERSHIP AGREEMENT" means the partnership agreement of
AROP, as most recently amended in accordance with the terms of this
Agreement.
"PAYING AGENT" has the meaning specified in the recital of
parties to this Agreement.
"PAYING AGENT'S ACCOUNT" means the account of the Paying
Agent maintained by the Paying Agent with Chase at its office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. __________,
Attention: _______________, or such other account as the Paying Agent
shall specify in writing to the Lender Parties.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED LIENS" means each of the following:
(a) Liens for property taxes, assessments or other
governmental charges which are not yet due and payable and
delinquent or the validity of which is being contested in
good faith in compliance with Section 5.01(b);
(b) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
similar Liens, in each case, incurred in the ordinary course
of business for sums not yet due and payable or the amount,
applicability or validity thereof is being contested by the
Borrower or such Restricted Subsidiary on a timely basis in
good faith and in appropriate proceedings, and the Borrower
or a Restricted Subsidiary has established adequate reserves
therefor in accordance with GAAP on the books of the Borrower
or such Restricted Subsidiary;
(c) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business
(i) in connection with workers' compensation, unemployment
insurance and other types of social security or retirement
benefits, or (ii) to secure (or to obtain letters of credit
that secure) the performance of tenders, statutory
obligations, surety bonds, appeal bonds, bids, leases (other
than Capital Leases), performance bonds, purchase,
construction or sales contracts and other similar
obligations, in each case not incurred or made in connection
with the borrowing of money, the obtaining of advances or
credit or the payment of the deferred purchase price of
property;
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(d) any attachment or judgment Lien for the payment
of money in an aggregate amount not to exceed $10,000,000,
provided that the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby
are contested by the Borrower or such Restricted Subsidiary
on a timely basis in good faith and in appropriate
proceedings, and the Borrower or a Restricted Subsidiary has
established adequate reserves therefor in accordance with
GAAP on the books of the Borrower or such Restricted
Subsidiary; and
(e) leases or subleases granted to others, zoning
restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of
property or irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other
encumbrances incurred, created, assumed or permitted to exist
and arising by, through or under a landlord or owner of the
leased property, with or without consent of the lessee), and
not interfering with, the ordinary conduct of the business of
the Borrower or any of its Restricted Subsidiaries, provided
that such Liens do not, in the aggregate, materially detract
from the value of such property or impair the use of such
property.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency
thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLEDGE AGREEMENT" has the meaning specified in Section
3.01(a)(ii).
"PREFERRED STOCK" of any Person means any class of Capital
Stock of such Person that is preferred over any other class of Capital
Stock of such Person as to the payment of dividends or the payment of
any amount upon liquidation or dissolution of such Person.
"PREPAYMENT DATE" has the meaning specified in Section
2.05(b)(i).
"PRO RATA SHARE" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times
a fraction the numerator of which is the amount of such Lender's
Revolving Credit Commitment at such time (or, if the Commitments shall
have been terminated pursuant to Section 2.04 or 6.01, such Lender's
Revolving Credit Commitment as in effect immediately prior to such
termination) and the denominator of which is the Revolving Credit
Facility at such time (or, if the
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Commitments shall have been terminated pursuant to Section 2.04 or
6.01, the Revolving Credit Facility as in effect immediately prior to
such termination).
"QUALIFYING SECURITIES" means readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States to
the extent owned by the Borrower free and clear of all Liens (other
than Liens created under the Pledge Agreement) and having a remaining
maturity not greater than 24 months and which have been pledged to,
and are under the control of, the Paying Agent pursuant to, and in
accordance with the terms of, the Pledge Agreement as Collateral for
the Term Advances.
"REFERENCE BANKS" means Citicorp, Chase and Bankers Trust
Company.
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Note Purchase Agreement, the
Partnership Agreement, the MLP Agreement, the Contribution Agreement
and the Senior Notes.
"REPURCHASE AGREEMENT" means any written agreement:
(a) that provides for (i) the transfer of one or
more United States Governmental Securities in an aggregate
principal amount at least equal to the amount of the Transfer
Price (defined below) to the Borrower or any of its
Restricted Subsidiaries from an Acceptable Bank or an
Acceptable Broker-Dealer against a transfer of funds (the
"Transfer Price") by the Borrower or such Restricted
Subsidiary to such Acceptable Bank or Acceptable
Broker-Dealer, and (ii) a simultaneous agreement by the
Borrower or such Restricted Subsidiary, in connection with
such transfer of funds, to transfer to such Acceptable Bank
or Acceptable Broker-Dealer the same or substantially similar
United States Governmental Securities for a price not less
than the Transfer Price plus a reasonable return thereon at a
date certain not later than 365 days after such transfer of
funds,
(b) in respect of which the Borrower or such
Restricted Subsidiary shall have the right, whether by
contract or pursuant to applicable law, to liquidate such
agreement upon the occurrence of any default thereunder, and
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(c) in connection with the Borrower or such
Restricted Subsidiary, or an agent thereof, shall have taken
all action required by applicable law or regulations to
perfect a Lien in such United States Governmental Securities.
"REQUIRED LENDERS" means, at any time, Lenders owed or
holding at least a majority in interest of the sum of (a) the
aggregate principal amount of the Advances outstanding at such time,
(b) the aggregate Unused Term Commitments at such time, (c) the
aggregate Unused Working Capital Commitments at such time and (d) the
aggregate Unused Revolving Credit Commitments at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Lenders at
such time (A) the aggregate principal amount of the Advances owing to
such Lender (in its capacity as a Lender) and outstanding at such
time, (B) the Unused Term Commitment of such Lender at such time, (C)
Unused Working Capital Commitment of such Lender at such time and (D)
the Unused Revolving Credit Commitment of such Lender at such time.
For purposes of this definition, the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank shall be considered
to be owed to the Revolving Credit Lenders ratably in accordance with
their respective Revolving Credit Commitments.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or
any of its Subsidiaries.
"RESTRICTED PAYMENT" has the meaning set forth in Section
5.02(g).
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Borrower
(a) of which more than 50% (by number of votes) of each class of (i)
Voting Stock, and (ii) all other securities convertible into,
exchangeable for or representing the right to purchase, Voting Stock
is beneficially owned, directly or indirectly, by the Borrower, (b)
which is organized under the laws of the United States or any State
thereof, (c) which maintains substantially all of its assets and
conducts substantially all of its business within the United States,
and (d) which is properly designated as such by the Borrower in the
most recent notice (or, prior to any such notice, on Schedule 4.01(b)
hereto, including, without limitation, Alliance Coal, LLC, a Delaware
limited liability company), with respect to such Subsidiary given by
the Borrower pursuant to and in accordance with the provisions of
Section 5.02(r).
"REVOLVING CREDIT ADVANCE" has the meaning specified in
Section 2.01(c).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
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"REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Revolving Credit
Commitment", or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Paying Agent pursuant to Section 8.07(d) as such
Lender's "Revolving Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.04.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments
at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a
Revolving Credit Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the
Borrower payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-3 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances and Swing Line Advances made by such Lender,
as amended.
"S&P" means Standard & Poor's Ratings Group, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SBHC" means Salomon Brothers Holding Company Inc.
"SECURED ADVANCES" means Term Advances that are secured by
Qualifying Securities. For purposes of this definition, the amount of
Term Advances constituting Secured Advances on any day shall be equal
to the aggregate ▇▇▇▇-to-market value of the Qualifying Securities
held by the Paying Agent as Collateral on such day which value shall
be marked-to-market by the Paying Agent from time to time but no less
frequently than monthly.
"SECURED OBLIGATIONS" has the meaning specified in Section 2
of the Pledge Agreement.
"SECURED PARTIES" means the Term Lenders.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SECURITY" has the meaning set forth in Section 2(a)(1) of
the Securities Act.
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"SENIOR NOTE PERCENTAGE" means, at any time, an amount,
expressed as a percentage, equal to (a) the principal amount
outstanding at such time under the Senior Notes divided by (b) the sum
of the principal amount outstanding at such time under the Senior
Notes plus the outstanding at such time principal amount of the Term
Advances.
"SENIOR NOTES" has the meaning specified in Preliminary
Statement (2).
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on
a particular date, that on such date (a) the fair value of the
property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability
to pay such debts and liabilities as they mature and (d) such Person
is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become
an actual or matured liability.
"SPECIAL GENERAL PARTNER" means Alliance Resource GP, LLC, a
Delaware limited liability company, and its successors and permitted
assigns as a special general partner of AROP.
"SUBSIDIARY" means, with respect to any Person, any
corporation, limited liability company, partnership, joint venture,
association, trust or other entity of which (or in which) more than
50% of (a) the issued and outstanding Capital Stock having ordinary
voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time Capital Stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interests in
the capital or profits of such partnership, limited liability company,
joint venture or association with ordinary voting power to elect a
majority of the board of directors (or Persons performing similar
functions) of such partnership, limited liability company,
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joint venture or association, or (c) the beneficial interests in such
trust or other entity with ordinary voting power to elect a majority
of the board of trustees (or Persons performing similar functions) of
such trust or other entity, is at the time directly or indirectly
owned or controlled by such Person, by such Person and one or more of
its Subsidiaries, or by one or more of such Person's other
Subsidiaries.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the
Borrower listed on Schedule II hereto and each other Restricted
Subsidiary of the Borrower that shall be required to execute and
deliver a guaranty pursuant to Section 5.01(j).
"SUBSIDIARY GUARANTY" has the meaning specified in Section
3.01(a)(iii).
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the Transaction.
"SWAPS" means, with respect to any Person, payment
obligations with respect to interest rate swaps, currency or commodity
swaps and hedging obligations obligating such Person to make payments,
whether periodically or upon the happening of a contingency. For the
purposes of this Agreement, the amount of the obligation under any
Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based
on the assumption that such Swap had terminated at the end of such
fiscal quarter, and in making such determination, if any agreement
relating to such Swap provides for the netting of amounts payable by
and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in
each such case, the amount of such obligation shall be the net amount
so determined.
"SWING LINE ADVANCE" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(d) or (b) any Revolving Credit
Lender pursuant to Section 2.02(b).
"SWING LINE BANK" means Chase.
"SWING LINE BORROWING" means a borrowing consisting of a
Swing Line Advance made by the Swing Line Bank pursuant to Section
2.01(d) or the Revolving Credit Lenders pursuant to Section 2.02(b).
"SWING LINE COMMITMENT" means, with respect to the Swing Line
Bank, the amount of the Swing Line Facility set forth in Section
2.01(d), as such amount may be reduced at or prior to such time
pursuant to Section 2.04.
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"SWING LINE FACILITY" has the meaning specified in Section
2.01(d).
"TAXES" has the meaning specified in Section 2.11(a).
"TERM ADVANCE" has the meaning specified in Section 2.01(a).
"TERM BORROWING" means a borrowing consisting of simultaneous
Term Advances of the same Type made by the Term Lenders.
"TERM COMMITMENT" means, with respect to any Term Lender at
any time, the amount set forth opposite such Lender's name on Schedule
I hereto under the caption "Term Commitment" or, if such Lender has
entered into one or more Assignment and Acceptances, set forth for
such Lender in the Register maintained by the Paying Agent pursuant to
Section 8.07(d) as such Lender's "Term Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.04.
"TERM FACILITY" means, at any time, the aggregate amount of
the Term Lenders' Term Commitments at such time.
"TERM LENDER" means any Lender that has a Term Commitment.
"TERM LOAN PERCENTAGE" means, at any time, a percentage equal
to 100% less the Senior Note Percentage at such time.
"TERM NOTE" means a promissory note of the Borrower payable
to the order of any Term Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term Advance made by such Lender, as amended.
"TERMINATION DATE" means the earlier of August 12, 2004 and
the date of termination in whole of the Working Capital Commitments,
the Revolving Credit Commitments, the Swing Line Commitment and the
Term Commitments pursuant to Section 2.04 or 6.01.
"TRANSACTION" has the meaning specified in Preliminary
Statement (2).
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Related Documents.
"TRANSFER" means, with respect to any Person, any transaction
in which such Person sells, conveys, abandons, transfers, leases (as
lessor), or otherwise disposes of any
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of its assets; provided, however, that "Transfer" shall not include
(a) the granting of any Liens permitted to be granted pursuant to this
Agreement, (b) any transfer of assets permitted pursuant to Section
5.02(d), (c) the making of any Restricted Payment permitted pursuant
to Section 5.02(g) or (d) the making of any Investments permitted
pursuant to Section 5.02(f).
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNITED STATES GOVERNMENTAL SECURITY" means any direct
obligation of, or obligation guaranteed by, the United States of
America, or any agency controlled or supervised by or acting as an
instrumentality of the United States of America pursuant to authority
granted by the Congress of the United States of America, so long as
such obligation or guarantee shall have the benefit of the full faith
and credit of the United Sates of America which shall have been
pledged pursuant to authority granted by the Congress of the United
States of America.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary which is not a
Restricted Subsidiary.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any Revolving Credit Lender at any time (a) such Lender's Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances and Swing Line
Advances made by such Lender (in its capacity as a Lender and not as
the Swing Line Bank) and outstanding at such time plus (ii) such
Lender's Pro Rata Share of the aggregate principal amount of all Swing
Line Advances made by the Swing Line Bank pursuant to Section 2.01(d)
and outstanding at such time.
"UNUSED TERM COMMITMENT" means with respect to any Term
Lender at any time, such Lender's unused Term Commitment at such time.
"UNUSED WORKING CAPITAL COMMITMENT" means, with respect to
any Working Capital Lender at any time (a) such Lender's Working
Capital Commitment at such time minus (b) the aggregate principal
amount of all Working Capital Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time.
"VOTING STOCK" means, (i) Securities of any class of classes,
the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the directors (or Persons performing
similar functions) or (ii) in the case of a partnership, limited
liability company or joint venture, interests in the profits or
capital thereof entitling the holders of such interests to approve
major business actions.
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"WHOLLY OWNED" means, at any time, with respect to any
Subsidiary of any Person, a Subsidiary of which at least ninety-eight
percent (98%) of all of the equity interests (except directors'
qualifying shares) and Voting Stock are owned by any one or more of
such Person and such Person's other Wholly Owned Subsidiaries at such
time.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"WORKING CAPITAL ADVANCE" has the meaning specified in
Section 2.01(b).
"WORKING CAPITAL BORROWING" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the
Working Capital Lenders.
"WORKING CAPITAL COMMITMENT" means, with respect to any
Working Capital Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Working Capital
Commitment", or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Paying Agent pursuant to Section 8.07(d) as such
Lender's "Working Capital Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.04.
"WORKING CAPITAL FACILITY" means, at any time, the aggregate
amount of the Working Capital Lenders' Working Capital Commitments at
such time.
"WORKING CAPITAL LENDER" means any Lender that has a Working
Capital Commitment.
"WORKING CAPITAL NOTE" means a promissory note of the
Borrower payable to the order of any Working Capital Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Working
Capital Advances made by such Lender, as amended.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation
of periods of time from a specified date to a later specified date, the word
"FROM" means "from and including" and the words "TO" and "UNTIL" each mean "to
but excluding". References in the Loan Documents to any agreement or contract
"AS AMENDED" shall mean and be a reference to such agreement or contract as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms.
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SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in effect from time to time ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Term Advances. Each Term
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make a single advance (a "TERM ADVANCE") to the Borrower on the Effective Date
in an amount not to exceed such Lender's Term Commitment at such time. The Term
Borrowing shall consist of Term Advances made simultaneously by the Term
Lenders ratably according to their Term Commitments. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Working Capital Advances. Each Working Capital Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "WORKING CAPITAL ADVANCE") to the Borrower from time to time
on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed such Lender's
Unused Working Capital Commitment at such time. Each Working Capital Borrowing
shall be in an aggregate amount of $1,000,000 or an integral multiple of
$100,000 in excess thereof in the case of Base Rate Advances, and in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof in the case of Eurodollar Rate Advances and shall consist of Working
Capital Advances made simultaneously by the Working Capital Lenders ratably
according to their Working Capital Commitments. Within the limits of each
Working Capital Lender's Unused Working Capital Commitment in effect from time
to time, the Borrower may borrow under this Section 2.01(b), prepay pursuant to
Section 2.05(a) and reborrow under this Section 2.01(b).
(c) The Revolving Credit Advances. Each Revolving Credit
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "REVOLVING CREDIT ADVANCE") to the Borrower from time to
time on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed such Lender's
Unused Revolving Credit Commitment at such time. Each Revolving Credit
Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple
of $100,000 in excess thereof in the case of Base Rate Advances and in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof in the case of Eurodollar Rate Advances (other than, in each case, a
Borrowing the proceeds of which shall be used solely to repay or prepay in full
outstanding Swing Line Advances) and shall consist of Revolving Credit Advances
made simultaneously by the Revolving Credit Lenders ratably according to their
Revolving
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Credit Commitments. Within the limits of each Revolving Credit Lender's Unused
Revolving Credit Commitment in effect from time to time, the Borrower may
borrow under this Section 2.01(c), prepay pursuant to Section 2.05(a) and
reborrow under this Section 2.01(c).
(d) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank agrees to make, on the terms
and conditions hereinafter set forth, Swing Line Advances to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Termination Date (i) in an aggregate outstanding amount not to exceed at
any time $10,000,000 (the "SWING LINE FACILITY") and (ii) in an amount for each
such Swing Line Borrowing not to exceed the aggregate of the Unused Revolving
Credit Commitments of the Revolving Credit Lenders at such time. No Swing Line
Advance shall be used for the purpose of funding the payment of principal of
any other Swing Line Advance. Each Swing Line Borrowing shall be in an amount
of $500,000 or an integral multiple of $100,000 in excess thereof and shall be
made as a Base Rate Advance. Within the limits of the Swing Line Facility and
within the limits referred to in clause (ii) above the Borrower may borrow
under this Section 2.01(d), repay pursuant to Section 2.03(d) or prepay
pursuant to Section 2.05(a) and reborrow under this Section 2.01(d).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b), each Borrowing shall be made on notice, given not
later than 12:00 noon (New York City time) on the third Business Day prior to
the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Borrower to the Paying Agent, which shall give to each Appropriate
Lender prompt notice thereof by telecopier. Each such notice of a Borrowing (a
"NOTICE OF BORROWING") shall be by telephone, confirmed immediately in writing,
or by telecopier, in substantially the form of Exhibit B hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Facility under which
such Borrowing is to be made, (iii) Type of Advances comprising such Borrowing,
(iv) aggregate amount of such Borrowing and (v) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Appropriate Lender shall, before 12:00 noon (New York City time)
on the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Paying Agent at the Paying Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Paying Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Paying Agent will make such funds available to the Borrower by crediting the
Borrower's Account; provided, however, that, in the case of any Revolving
Credit Borrowing, the Paying Agent shall first make a portion of such funds
equal to the aggregate principal amount of any Swing Line Advances made by the
Swing Line Bank and by any other Revolving Credit Lender and outstanding on the
date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date,
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available to the Swing Line Bank and such other Revolving Credit Lenders for
repayment of such Swing Line Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 12:00 noon (New York City time) on the date of the proposed
Swing Line Borrowing, by the Borrower to the Swing Line Bank and the Paying
Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF SWING LINE
BORROWING") shall be by telephone, confirmed immediately in writing, or by
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the thirtieth day after the requested date of such
Borrowing). The Swing Line Bank will make the amount thereof available to the
Paying Agent at the Paying Agent's Account, in same day funds. After the Paying
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Paying Agent will make such funds available to
the Borrower by crediting the Borrower's Account. Upon written demand by the
Swing Line Bank, with a copy of such demand to the Paying Agent, each other
Revolving Credit Lender shall purchase from the Swing Line Bank, and the Swing
Line Bank shall sell and assign to each such other Revolving Credit Lender,
such other Lender's Pro Rata Share of such outstanding Swing Line Advance as of
the date of such demand, by making available for the account of its Applicable
Lending Office to the Paying Agent for the account of the Swing Line Bank, by
deposit to the Paying Agent's Account, in same day funds, an amount equal to
the portion of the outstanding principal amount of such Swing Line Advance to
be purchased by such Lender. The Borrower hereby agrees to each such sale and
assignment. Each Revolving Credit Lender agrees to purchase its Pro Rata Share
of an outstanding Swing Line Advance on (i) the Business Day on which demand
therefor is made by the Swing Line Bank, provided that notice of such demand is
given not later than 12:00 noon (New York City time) on such Business Day or
(ii) the first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by the Swing Line
Bank to any other Revolving Credit Lender of a portion of a Swing Line Advance,
the Swing Line Bank represents and warrants to such other Lender that the Swing
Line Bank is the legal and beneficial owner of such interest being assigned by
it, but makes no other representation or warranty and assumes no responsibility
with respect to such Swing Line Advance, the Loan Documents or any Loan Party.
If and to the extent that any Revolving Credit Lender shall not have so made
the amount of such Swing Line Advance available to the Paying Agent, such
Revolving Credit Lender agrees to pay to the Paying Agent forthwith on demand
such amount together with interest thereon, for each day from the date of
demand by the Swing Line Bank until the date such amount is paid to the Paying
Agent, at the Federal Funds Rate. If such Lender shall pay to the Paying Agent
such amount for the account of the Swing Line Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Swing Line Advance
made by such Lender on such Business Day for purposes of this Agreement, and
the outstanding principal amount of the Swing Line Advance made by the Swing
Line Bank shall be reduced by such amount on such Business Day.
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(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $5,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.06(d)(ii), 2.08(b)(iii) or 2.09(c) or (d) and (i) the Revolving
Credit Advances and the Revolving Credit Advances may not be outstanding as
part of more than eight separate Borrowings in aggregate.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower.
(e) Unless the Paying Agent shall have received notice from
an Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Paying Agent such Lender's ratable portion of such Borrowing, the Paying
Agent may assume that such Lender has made such portion available to the Paying
Agent on the date of such Borrowing in accordance with subsection (a) of this
Section 2.02 and the Paying Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available
to the Paying Agent, such Lender and the Borrower severally agree to repay or
pay to the Paying Agent forthwith on demand such corresponding amount and to
pay interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid or paid to the Paying
Agent at (i) in the case of the Borrower, the interest rate applicable at such
time under Section 2.06 to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall pay to the
Paying Agent such corresponding amount, such amount so paid shall constitute
such Lender's Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. Repayment of Advances. (a) Term Advances. The
Borrower shall repay to the Paying Agent for the ratable account of the Term
Lenders the aggregate outstanding principal amount of the Term Advances on the
following dates in amounts equal to the percentage indicated of the principal
amount of Term Advances outstanding on October 31, 2001 (as such amounts shall
be reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.05):
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Date Percentage
---- ----------
October 31, 2001 7.50%
January 31, 2002 7.50%
April 30, 2002 7.50%
July 31, 2002 7.50%
October 31, 2002 7.50%
January 31, 2003 7.50%
April 30, 2003 7.50%
July 31, 2003 7.50%
October 31, 2003 10.00%
January 31, 2004 10.00%
April 30, 2004 10.00%
August 12, 2004 10.00%
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Advances outstanding on such date.
(b) Working Capital Advances. The Borrower shall repay to the
Paying Agent for the ratable account of the Working Capital Lenders on the
Termination Date the aggregate principal amount of the Working Capital Advances
then outstanding.
(c) Revolving Credit Advances. The Borrower shall repay to
the Paying Agent for the ratable account of the Revolving Credit Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
(d) Swing Line Advances. The Borrower shall repay to the
Paying Agent for the account of the Swing Line Bank and each other Revolving
Credit Lender that has made a Swing Line Advance the outstanding principal
amount of each Swing Line Advance made by each of them on the earlier of the
maturity date specified in the applicable Notice of Swing Line Borrowing (which
maturity shall be no later than the thirtieth day after the requested date of
such Borrowing) and the Termination Date.
SECTION 2.04. Termination or Reduction of the Commitments.
(a) Optional. The Borrower may, upon at least three Business Days' notice to
the Paying Agent, terminate in whole or reduce in part the Unused Term
Commitments, the Unused Working Capital Commitments and the Unused Revolving
Credit Commitments; provided, however, that each partial reduction of a
Facility (i) shall be in an aggregate amount of $5,000,000 or an integral
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multiple of $1,000,000 in excess thereof and (ii) shall be made ratably among
the Appropriate Lenders in accordance with their Commitments with respect to
such Facility.
(b) Mandatory. (i) On the date of the Term Borrowing, after
giving effect to such Term Borrowing, and from time to time thereafter upon
each repayment or prepayment of the Term Advances, the aggregate Term
Commitments of the Term Lenders shall be automatically and permanently reduced,
on a pro rata basis, by an amount equal to the amount by which the aggregate
Term Commitments immediately prior to such reduction exceed the aggregate
unpaid principal amount of the Term Advances then outstanding.
(ii) If, on the fourth anniversary of the Effective Date, the
aggregate Revolving Credit Commitments of the Revolving Credit Lenders exceed
$15,000,000, then, on such day, the aggregate Revolving Credit Commitments of
the Revolving Credit Lenders shall be automatically and permanently reduced, on
a pro rata basis, in an amount such that, after giving effect to such
reduction, the aggregate Revolving Credit Commitments equal $15,000,000.
(iii) The Swing Line Facility shall be permanently reduced
from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Swing Line Facility
exceeds the Revolving Credit Facility after giving effect to such reduction of
the Revolving Credit Facility.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may,
upon at least one Business Day's notice in the case of Base Rate Advances and
three Business Days' notice in the case of Eurodollar Rate Advances, in each
case to the Paying Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall,
prepay the outstanding aggregate principal amount of the Advances comprising
part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof in the case of Base Rate Advances and $5,000,000 or an integral
multiple of $1,000,000 in excess thereof in the case of Eurodollar Rate
Advances and if any prepayment of a Eurodollar Rate Advance is made on a date
other than the last day of an Interest Period for such Advance, the Borrower
shall also pay any amounts owing pursuant to Section 8.04(c). Each such
prepayment of any Term Advances shall be applied to the installments thereof on
a pro rata basis.
(b) Mandatory. (i) The Borrower shall, on the date (the
"PREPAYMENT DATE") that is the earlier of (A) the first anniversary of the date
of receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries
from the sale, lease, transfer or other disposition of any assets of the
Borrower or any of its Subsidiaries (other than any sale, lease, transfer or
other disposition of assets pursuant to clause (i), (ii ), (iii) or (iv) of
Section 5.02(e)) and (B) the date
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on which the Borrower is required to apply any portion of such Net Cash
Proceeds to prepay the Senior Notes pursuant to the Note Purchase Agreement,
but only to the extent such Net Cash Proceeds shall not have been reinvested
prior to such date in substantially similar assets constituting Investments
permitted under Section 5.02(f), prepay an aggregate principal amount of the
Term Advances comprising part of the same Borrowings in an amount equal to the
sum of (x) the Term Loan Percentage on the Prepayment Date of such Net Cash
Proceeds and (y) the amount of such Net Cash Proceeds that shall not be
required to prepay the Senior Notes on such Prepayment Date. Each such
prepayment of the Term Advances made on or after October 31, 2001 shall be
applied to the installments due thereon pursuant to Section 2.03(a) on a pro
rata basis.
(ii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings and the Swing Line Advances in an amount equal to the
amount by which (A) the sum of the aggregate principal amount of (x) the
Revolving Credit Advances and (y) the Swing Line Advances then outstanding
exceeds (B) the Revolving Credit Facility on such Business Day.
(iii) Prepayments of the Revolving Credit Facility made
pursuant to clause (ii) shall be first applied to prepay Swing Line Advances
then outstanding until such Advances are paid in full and second applied to
prepay Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full.
(iv) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Working Capital Advances comprising part of
the same Borrowings in an amount equal to the amount by which (A) the aggregate
principal amount of the Working Capital Advances then outstanding exceeds (B)
the Working Capital Facility on such Business Day.
(v) The Borrower shall, on the last day of each of the first
three fiscal quarters and the last day of each fiscal year of the Borrower,
prepay the principal amount of each Swing Line Borrowing in excess of
$2,500,000 outstanding on such day.
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance
is a Base Rate Advance, a rate per annum equal at all times to the sum
of (A) the Base Rate in effect from time to time plus (B) the
Applicable Margin in effect from time to time, which ratio
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shall be determined in accordance with the definition of that term,
payable in arrears quarterly on the last day of each fiscal quarter
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect prior to the first day of such
Interest Period, which ratio shall be determined in accordance with
the definition of that term, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or
paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable under the Loan Documents that is not
paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in
full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid, in the case of interest, on the
Type of Advance on which such interest has accrued pursuant to clause (a)(i) or
(a)(ii) above and, in all other cases, on Base Rate Advances pursuant to clause
(a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.08 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the Paying
Agent shall give notice to the Borrower and each Appropriate Lender of the
applicable Interest Period and the applicable interest rate determined by the
Paying Agent for purposes of clause (a)(i) or (a)(ii) above, and the applicable
rate, if any, furnished by each Reference Bank at the Borrowers request for
the purpose of determining the applicable interest rate under clause (a)(ii)
above.
(d) Interest Rate Determination. (i) In the event that the
Borrower requests, in accordance with the definition of "Eurodollar Rate", that
the Eurodollar Rate be based on interest rate quotes received from the
Reference Banks, each Reference Bank agrees to furnish to the Paying Agent
timely information for the purpose of determining each Eurodollar Rate. If any
one or more of the Reference Banks shall not furnish such timely information to
the Paying
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Agent for the purpose of determining any such interest rate, the Paying Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish
timely information to the Paying Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances and the Eurodollar Rate cannot otherwise be
determined in accordance with clause (b) of the definition of "Eurodollar
Rate", the Paying Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined pursuant to said clause (b) for
such Eurodollar Rate Advances, and, unless the Eurodollar Rate cannot be
determined by reference to clause (a) of the definition of Eurodollar Rate,
then
(A) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(B) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Paying Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.07. Fees. (a) Commitment Fee. The Borrower shall
pay to the Paying Agent for the account of the Lenders a commitment fee, from
the date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date (or in the case of
the Term Commitments, until the Term Borrowing is made), payable in arrears on
the date of the initial Borrowing hereunder, thereafter, in the case of the
Revolving Credit Commitments and Working Capital Commitments, quarterly on the
last day of each fiscal quarter, commencing with the fiscal quarter ending at
September 30, 1999, and on the Termination Date, at a percentage per annum
equal to the Applicable Percentage at such time on the average daily unused
portion of each Appropriate Lender's Term Commitment for the period until the
Term Borrowing is made and on the sum of the average daily Unused Revolving
Credit Commitment of such Lender plus its Pro Rata Share of the average daily
outstanding Swing Line Advances during such quarter plus the average daily
Unused Working Capital Commitment of such Lender; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b) Agents' Fees. The Borrower shall pay to each Agent for
its own account such fees as may from time to time be agreed between the
Borrower and such Agent.
SECTION 2.08. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Paying Agent not
later than 12:00 noon (New York
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City time) on the third Business Day prior to the date of the proposed
Conversion or continuation, in the case of the Conversion or continuation of
any Advances into or as Eurodollar Rate Advances, and on the same Business Day,
in the case of the Conversion of any Advances into Base Rate Advances, and
subject, in each case, to the provisions of Sections 2.06 and 2.09, Convert (or
in the case of Eurodollar Rate Advances, continue) all or any portion of the
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances or continuation of Eurodollar Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(c), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(c) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion or continuation shall, within the restrictions
specified above, specify (i) the date of such Conversion or continuation, (ii)
the Advances to be Converted or continued and (iii) if such Conversion or
continuation is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall provide a notice of Conversion or
continuation and fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Paying Agent will
forthwith so notify the Borrower and the Appropriate Lenders, whereupon each
such Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into or continue as a Eurodollar
Rate Advance with an interest period of one month. In addition, if the Borrower
shall fail to provide a timely notice of Conversion or continuation for any
Eurodollar Rate Advance, such Eurodollar Rate Advance will automatically
Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (y) the obligation of the Lenders to make, or to Convert
Advances into or to continue Eurodollar Rate Advances as, Eurodollar Rate
Advances shall be suspended during such continuance.
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SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the cost to any Lender
Party of agreeing to make or of making, funding or maintaining Eurodollar Rate
Advances (excluding, for purposes of this Section 2.09, any such increased
costs resulting from (x) Taxes or Other Taxes (as to which Section 2.11 shall
govern) and (y) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender Party (with a copy
of such demand to the Paying Agent), pay to the Paying Agent for the account of
such Lender Party additional amounts sufficient to compensate such Lender Party
for such increased cost. A certificate as to the amount of such increased cost,
submitted to the Borrower by such Lender Party, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority enacted, promulgated, issued or made after the date
hereof (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender Party or
any corporation controlling such Lender Party and that the amount of such
capital is increased by or based upon the existence of such Lender Party's
commitment to lend hereunder and other commitments of such type, then, upon
demand by such Lender Party or such corporation (with a copy of such demand to
the Paying Agent), the Borrower shall pay to the Paying Agent for the account
of such Lender Party, from time to time as specified by such Lender Party,
additional amounts sufficient to compensate such Lender Party in the light of
such circumstances, to the extent that such Lender Party reasonably determines
such increase in capital to be allocable to the existence of such Lender
Party's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower by such Lender Party shall be conclusive and binding
for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under
any Facility, Lenders owed at least 50% of the then aggregate unpaid principal
thereof notify the Paying Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Lenders
of making, funding or maintaining their Eurodollar Rate Advances for such
Interest Period, the Paying Agent shall forthwith so notify the Borrower and
the Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance under
such Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of
the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Paying Agent shall notify
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the Borrower that such Lenders have determined that the circumstances causing
such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation after the date hereof shall make it unlawful, or any central bank or
other governmental authority shall assert that it is unlawful, for any Lender
or its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Paying Agent, (i) each Eurodollar Rate Advance
under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Paying Agent shall notify
the Borrower that such Lender has determined that the circumstances causing
such suspension no longer exist.
(e) All amounts paid hereunder shall be without duplication
of any amounts included within the definition of the term "Eurodollar Rate".
SECTION 2.10. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any
right of counterclaim or set-off (except as otherwise provided in Section
2.14), not later than 12:00 noon (New York City time) on the day when due in
U.S. dollars to the Paying Agent at the Paying Agent's Account in same day
funds, with payments being received by the Paying Agent after such time being
deemed to have been received on the next succeeding Business Day. The Paying
Agent will promptly thereafter cause like funds to be distributed (i) if such
payment by the Borrower is in respect of principal, interest, commitment fees
or any other obligation then payable hereunder and under the Notes to more than
one Lender Party, to such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts of such
respective obligations then payable to such Lender Parties and (ii) if such
payment by the Borrower is in respect of any obligation then payable hereunder
to one Lender Party, to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d)
or upon the purchase by any Revolving Credit Lender of any Swing Line Advance
pursuant to Section 2.02(b), from and after the effective date of such
Assignment and Acceptance or purchase, as the case may be, the Paying Agent
shall make all payments hereunder and under the Notes in respect of the
interest assigned or purchased thereby to the Lender Party assignee or
purchaser thereunder, and, in the case of an Assignment and Acceptance, the
parties to any such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
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(b) The Borrower hereby authorizes each Lender Party and each
of its Affiliates, if and to the extent payment owed to such Lender Party is
not made when due hereunder (after giving effect to any period of grace) or, in
the case of a Lender, under the Note held by such Lender, to charge from time
to time, to the fullest extent permitted by law, against any or all of the
Borrower's accounts with such Lender Party or such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Paying Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of fees shall be made by the Paying Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or fees are payable. Each determination by the Paying
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee, as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Paying Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the Paying
Agent may assume that the Borrower has made such payment in full to the Paying
Agent on such date and the Paying Agent may, in reliance upon such assumption,
cause to be distributed to each such Lender Party on such due date an amount
equal to the amount then due such Lender Party. If and to the extent the
Borrower shall not have so made such payment in full to the Paying Agent, each
such Lender Party shall repay to the Paying Agent forthwith on demand such
amount distributed to such Lender Party together with interest thereon, for
each day from the date such amount is distributed to such Lender Party until
the date such Lender Party repays such amount to the Paying Agent, at the
Federal Funds Rate.
(f) If the Paying Agent receives funds for application to the
obligations of the Loan Parties under the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Paying Agent
shall distribute such funds to each Lender Party ratably in accordance with
such Lender Party's proportionate share of the principal amount of all
outstanding Advances
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then due and payable in repayment or prepayment of such of the outstanding
Advances or other obligations owed to such Lender Party and shall return any
unused funds to the Borrower.
SECTION 2.11. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.10,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and each Agent, taxes that are imposed on its overall net income by the United
States and taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction under the
laws of which such Lender Party or such Agent, as the case may be, is organized
or any political subdivision thereof and, in the case of each Lender Party,
taxes that are imposed on its overall net income (and franchise taxes imposed
in lieu thereof) by the state or foreign jurisdiction of such Lender Party's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Lender Party or any Agent, (i) the sum payable by the Borrower
shall be increased as may be necessary so that after the Borrower and the
Paying Agent have made all required deductions (including deductions applicable
to additional sums payable under this Section 2.11) such Lender Party or such
Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make all
such deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) The Borrower shall indemnify each Lender Party and each
Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed by any jurisdiction
on amounts payable under this Section 2.11, imposed on or paid by such Lender
Party or such Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender Party or such Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower shall furnish to the Paying Agent, at its address referred to in
Section 8.02, the original or a certified
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copy of a receipt evidencing such payment. In the case of any payment hereunder
or under the Notes by or on behalf of the Borrower through an account or branch
outside the United States or by or on behalf of the Borrower by a payor that is
not a United States person, if the Borrower determines that no Taxes are
payable in respect thereof, the Borrower shall furnish, or shall cause such
payor to furnish, to the Paying Agent, at such address, an opinion of counsel
acceptable to the Paying Agent stating that such payment is exempt from Taxes.
For purposes of subsections (d) and (e) of this Section 2.11, the terms "UNITED
STATES" and "UNITED STATES PERSON" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender and
on the date of the Assignment and Acceptance pursuant to which it becomes a
Lender Party in the case of each other Lender Party, and from time to time
thereafter as requested in writing by the Borrower (but only so long thereafter
as such Lender Party remains lawfully able to do so), provide each of the
Paying Agent and the Borrower with two original Internal Revenue Service forms
1001 or 4224, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or the Notes. If the forms provided by a Lender
Party at the time such Lender Party first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate forms certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided,
however, that if, at the effective date of the Assignment and Acceptance
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) of this Section
2.11 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition
to withholding taxes that may be imposed in the future or other amounts
otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001
or 4224, that the applicable Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.11 with
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respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as such Lender Party shall reasonably request to assist such Lender
Party to recover such Taxes.
SECTION 2.12. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise, other than as a result of
an assignment pursuant to Section 8.07) (a) on account of obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the obligations owing (but not due and payable) to
all Lender Parties hereunder and under the Notes at such time obtained by all
of the Lender Parties at such time, such Lender Party shall forthwith purchase
from the other Lender Parties such interests or participating interests in the
obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender Party,
such purchase from each other Lender Party shall be rescinded and such other
Lender Party shall repay to the purchasing Lender Party the purchase price to
the extent of such Lender Party's ratable share (according to the proportion of
(i) the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount
equal to such Lender Party's ratable share (according to the proportion of (i)
the amount of such other Lender Party's required repayment to (ii) the total
amount so recovered from the purchasing Lender Party) of any interest or other
amount paid or payable by the purchasing Lender Party in respect of the total
amount so recovered; provided further that, so long as the obligations under
the Loan Documents shall not have been accelerated, any excess payment received
by any Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders. The Borrower agrees that any Lender Party so purchasing an
interest or participating interest from another Lender Party pursuant to this
Section 2.12 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
interest or participating interest, as the case may be, as fully as if such
Lender Party were the direct creditor of the Borrower in the amount of such
interest or participating interest, as the case may be.
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SECTION 2.13. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely (a) in the case of the Term Advances, to purchase Qualifying Securities
to be liquidated for the sole purpose of funding capital expenditures of the
Borrower and its Subsidiaries substantially as set forth in the Business Plan
delivered to the Paying Agent from time to time pursuant to Section 5.03(d),
(b) in the case of the Working Capital Advances, to provide working capital for
the Borrower and its Subsidiaries and to fund cash distributions to the holders
of the MLP Units, and (c) in the case of the Revolving Credit Advances, for
general corporate purposes, including, without limitation, to finance
acquisitions and capital expenditures of the Borrower and its Subsidiaries
substantially as set forth in the Business Plan delivered to the Paying Agent
from time to time pursuant to Section 5.03(d).
SECTION 2.14. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower and (iii) the
Borrower shall be required to make any payment hereunder or under any other
Loan Document to or for the account of such Defaulting Lender, then the
Borrower may, so long as no Default shall occur or be continuing at such time
and to the fullest extent permitted by applicable law, set off and otherwise
apply the obligation of the Borrower to make such payment to or for the account
of such Defaulting Lender against the obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that, on any date, the Borrower shall
so set off and otherwise apply its obligation to make any such payment against
the obligation of such Defaulting Lender to make any such Defaulted Advance on
or prior to such date, the amount so set off and otherwise applied by the
Borrower shall constitute for all purposes of this Agreement and the other Loan
Documents an Advance by such Defaulting Lender made on the date of such setoff
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. Such Advance shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). The Borrower
shall notify the Paying Agent at any time the Borrower exercises its right of
set-off pursuant to this subsection (a) and shall set forth in such notice (A)
the name of the Defaulting Lender and the Defaulted Advance required to be made
by such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this subsection (a). Any portion
of such payment otherwise required to be made by the Borrower to or for the
account of such Defaulting Lender which is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the Borrower pursuant to
this subsection (a), shall be applied by the Paying Agent as specified in
subsection (b) or (c) of this Section 2.14.
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(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to any Agent or any of the other Lender Parties and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the Paying
Agent for the account of such Defaulting Lender, then the Paying Agent may, on
its behalf or on behalf of such other Agents or such other Lender Parties and
to the fullest extent permitted by applicable law, apply at such time the
amount so paid by the Borrower to or for the account of such Defaulting Lender
to the payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. In the event that the Paying Agent shall so apply any such
amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Paying Agent shall constitute for all purposes of this Agreement
and the other Loan Documents payment, to such extent, of such Defaulted Amount
on such date. Any such amount so applied by the Paying Agent shall be retained
by the Paying Agent or distributed by the Paying Agent to such other Agents or
such other Lender Parties, ratably in accordance with the respective portions
of such Defaulted Amounts payable at such time to the Paying Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Paying Agent, such other Agents and such other Lender
Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing
to them, in their capacities as such, ratably in accordance with such
respective Defaulted Amounts then owing to the Agents;
(ii) second, to the Swing Line Bank for any Defaulted Amounts
then owing to it, in its capacity as such; and
(iii) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Paying Agent pursuant to this subsection (b), shall be applied by the Paying
Agent as specified in subsection (c) of this Section 2.14.
(c) In the event that, at any one time (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any Agent or
any other Lender Party shall be required to pay or distribute any amount
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower or such Agent or such other Lender Party
shall pay such amount to the Paying Agent to be held by the Paying Agent, to
the fullest extent permitted by
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applicable law, in escrow or the Paying Agent shall, to the fullest extent
permitted by applicable law, hold in escrow such amount otherwise held by it.
Any funds held by the Paying Agent in escrow under this subsection (c) shall be
deposited by the Paying Agent in an interest bearing account at a bank (the
"ESCROW BANK") selected by the Paying Agent at the time, in the name and under
the control of the Paying Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time
to time, shall be the Escrow Bank's standard terms applicable to escrow
accounts maintained with it. Any interest credited to such account from time to
time shall be held by the Paying Agent in escrow under, and applied by the
Paying Agent from time to time in accordance with the provisions of, this
subsection (c). The Paying Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Paying Agent or any other Lender Party,
as and when such Advances or amounts are required to be made or paid and, if
the amount so held in escrow shall at any time be insufficient to make and pay
all such Advances and amounts required to be made or paid at such time, in the
following order of priority:
(i) first, to the Agents for any amounts then due and payable
by such Defaulting Lender to them hereunder, in their capacities as
such, ratably in accordance with such respective amounts then due and
payable to the Agents;
(ii) second, to the Swing Line Bank for any amounts then due
and payable to it hereunder, in its capacity as such, by such
Defaulting Lender;
(iii) third, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Paying Agent in
escrow at such time with respect to such Lender Party shall be distributed by
the Paying Agent to such Lender Party and applied by such Lender Party to the
obligations owing to such Lender Party at such time under this Agreement and
the other Loan Documents ratably in accordance with the respective amounts of
such obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.14 are in addition to other rights and remedies that the
Borrower may have against such
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Defaulting Lender with respect to any Defaulted Advance and that any Agent or
any Lender Party may have against such Defaulting Lender with respect to any
Defaulted Amount.
SECTION 2.15. Evidence of Debt. (a) Each Lender Party shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Advance owing to such Lender Party from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder. The Borrower agrees that upon notice by any Lender Party to the
Borrower (with a copy of such notice to the Paying Agent) to the effect that a
promissory note or other evidence of indebtedness is required or appropriate in
order for such Lender Party to evidence (whether for purposes of pledge,
enforcement or otherwise) the Advances owing to, or to be made by, such Lender
Party, the Borrower shall promptly execute and deliver to such Lender Party,
with a copy to the Paying Agent, a Working Capital Note, a Term Note and a
Revolving Credit Note, as applicable, in substantially the form of Exhibits
▇-▇, ▇-▇ and A-3 hereto, respectively, payable to the order of such Lender
Party in a principal amount equal to the Working Capital Commitment, the Term
Commitment and the Revolving Credit Commitment, respectively, of such Lender
Party. All references to Notes in the Loan Documents shall mean Notes, if any,
to the extent issued hereunder.
(b) The Register maintained by the Paying Agent pursuant to
Section 8.07(d) shall include a control account, and a subsidiary account for
each Lender Party, in which accounts (taken together) shall be recorded (i) the
date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender Party hereunder,
and (iv) the amount of any sum received by the Paying Agent from the Borrower
hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Paying Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender
Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; provided, however, that the failure of
the Paying Agent or such Lender Party to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrower under this Agreement.
SECTION 2.16. Replacement of Certain Lenders. If any Lender
(a "SUBJECT LENDER") (a) is a Defaulting Lender that owes a Defaulted Advance
to the Borrower, (b) makes
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demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to Section 2.09(a) or (b) or Section 2.11 or (c) gives notice
pursuant to Section 2.09(d) requiring a Conversion of such Subject Lender's
Eurodollar Rate Advances to Base Rate Advances or suspending such Lender's
obligation to make Advances as, or to Convert or continue Advances into or as,
Eurodollar Rate Advances, the Borrower may, within 90 days after receipt by the
Borrower of such demand or notice (or the occurrence of such other event
causing the Borrower to be required to pay such compensation), as the case may
be, give notice (a "REPLACEMENT NOTICE") in writing to the Paying Agent and
such Subject Lender of its intention to replace such Subject Lender with an
Eligible Assignee designated in such Replacement Notice (a "REPLACEMENT
LENDER"). Such Subject Lender shall, subject to the payment to such Subject
Lender of any amounts due pursuant to Sections 2.09(a) and (b) and Section 2.11
and all other amounts then owing to it under the Loan Documents assign, in
accordance with Section 8.07, all of its Commitments, Advances, Notes and other
rights and obligations under this Agreement and all other Loan Documents to
such proposed Eligible Assignee. Promptly upon the effective date of an
assignment described above, the Borrower shall issue a replacement Note or
Notes, as the case may be, to such Replacement Lender and such Replacement
Lender shall become a "Lender" for all purposes under this Agreement and the
other Loan Documents.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance on the occasion of the
Initial Extension of Credit hereunder is subject to the satisfaction of the
following conditions precedent before or concurrently with the Initial
Extension of Credit:
(a) The Paying Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to
the Paying Agent (unless otherwise specified) and (except for the
Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders that have
requested Notes prior to the Effective Date.
(ii) A pledge agreement in substantially the form of Exhibit
D hereto (as amended, the "PLEDGE AGREEMENT"), duly executed by the
Borrower, together with:
(A) evidence that the Qualified Securities have been
credited to the Securities Account (as defined in the Pledge
Agreement),
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(B) duly executed copies of proper financing
statements, to be filed immediately after the Initial
Extension of Credit under the Uniform Commercial Code of all
jurisdictions that the Paying Agent may deem necessary or
desirable in order to perfect and protect the first priority
liens and security interests created under the Pledge
Agreement,
(C) completed requests for information, dated on or
before the date of the Initial Extension of Credit, listing
all effective financing statements on file in the office of
the county clerk of Oklahoma County, Oklahoma that name the
Borrower as debtor, together with copies of such other
financing statements, and
(D) evidence that all action that the Paying Agent
may reasonably deem necessary or desirable in order to
perfect and protect the first priority Liens created under
the Pledge Agreement has been taken.
(iii) A guaranty in substantially the form of Exhibit E
hereto (together with each other guaranty and guaranty supplement
delivered pursuant to Section 5.01(j), in each case as amended, the
"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor.
(iv) Certified copies of the resolutions of or on behalf of
each Loan Party approving the Transaction and each Transaction
Document to which it is or is to be a party and/or authorizing the
general partner or managing member, as applicable, to act on behalf of
such limited partnership or limited liability company, as the case may
be, and of all documents evidencing other necessary action (including,
without limitation, all necessary general partner, managing member or
other similar action) and governmental and other third party approvals
and consents, if any, with respect to the Transaction and each
Transaction Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the
jurisdiction of organization or formation of each Loan Party and (if
applicable) each general partner or managing member of each Loan Party
dated reasonably near the date of the Initial Extension of Credit,
certifying (A) as to a true and correct copy of the charter or similar
Constitutive Documents of such Person and each amendment thereto on
file in such Secretary's office and (B) that (1) such amendments are
the only amendments to such Person's charter or Constitutive Documents
on file in such Secretary's office, (2) such Person has paid all
franchise taxes to the date of such certificate and (C) such Person is
duly formed and in good standing or presently subsisting under the
laws of the State of the jurisdiction of its organization.
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(vi) A copy of a certificate of the Secretary of State of
each jurisdiction in which any Loan Party or any general partner or
managing member, as applicable, of each Loan Party is required to be
qualified to do business, dated reasonably near the date of the
Initial Extension of Credit, stating that such Person is duly
qualified and in good standing as a foreign corporation, limited
partnership or limited liability company, as applicable, in such State
and has filed all annual reports required to be filed to the date of
such certificate.
(vii) A certificate of each Loan Party or on its behalf by
its managing general partner or managing member, as applicable, of
each Loan Party, signed on behalf of such Person by its President or a
Vice President and its Secretary or any Assistant Secretary (or
persons performing similar functions), dated the date of the Initial
Extension of Credit (the statements made in which certificate shall be
true on and as of the date of the Initial Extension of Credit),
certifying as to (A) the absence of any amendments to the Constitutive
Documents of such Person since the date of the Secretary of State's
certificate referred to in Section 3.01(a)(v), (B) a true and correct
copy of the bylaws (or similar Constitutive Documents) as in effect on
the date on which the resolutions referred to in Section 3.01(a)(iv)
were adopted and on the date of the Initial Extension of Credit, (C)
the due organization or formation and good standing or valid existence
of such Person as a corporation, a limited liability company or a
limited partnership, as the case may be, organized or formed under the
laws of the jurisdiction of its organization or formation, and the
absence of any proceeding for the dissolution or liquidation of such
Person, (D) the truth of the representations and warranties contained
in the Loan Documents as though made on and as of the date of the
Initial Extension of Credit and (E) the absence of any event occurring
and continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party or on its behalf by its managing general
partner or managing member, as applicable certifying the names and
true signatures of the officers or managers, as applicable, of such
Person authorized to sign on its behalf each Transaction Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(ix) Certified copies of each of the Related Documents, duly
executed by or on behalf of the parties thereto and in form and
substance satisfactory to the Lender Parties, together with all
agreements, instruments and other documents delivered in connection
therewith as the Paying Agent shall request.
(x) An assumption agreement in substantially the form of
Exhibit H hereto (the "ASSUMPTION AGREEMENT"), duly executed by AROP.
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(xi) Certificates, in form and substance satisfactory to the
Lender Parties, attesting to the Solvency of each Loan Party before
and after giving effect to the Transaction, from its Chief Financial
Officer (or person performing similar functions).
(xii) An environmental assessment report previously delivered
to the Co-Administrative Agents prior to the Effective Date, as to any
hazards, costs or liabilities under Environmental Laws to which any
Loan Party or any of its Subsidiaries may be subject, the amount and
nature of which and the Borrower's plans with respect to which shall
be acceptable to the Lender Parties, together with evidence, in form
and substance satisfactory to the Lender Parties, that all applicable
Environmental Laws shall have been complied with. To the extent that
either such report or any other information that may become available
to the Lender Parties shall disclose any hazards, costs or liabilities
under Environmental Laws or otherwise that the Lender Parties deem
material, the Lender Parties shall be satisfied that such hazards,
costs or liabilities were adequately reflected in the Borrower's
financial reserves shown on the financial statements included in the
Information Memorandum or that, to the extent not so reflected, the
Borrower has made adequate provision for such hazards, costs or
liabilities.
(xiii) A reasonableness review from ▇▇▇▇ International Mining
Consultants with respect to the mine development plans that were
delivered to the Paying Agent prior to the date hereof in form and
substance satisfactory to the Lenders, including, without limitation,
minimum coal reserves, verification of operating and productivity
assumptions, the ▇▇▇▇▇▇ County Project, Capital Expenditures,
reclamation and closing costs and revenue projections.
(xiv) A five year Business Plan in form and scope
satisfactory to the Lenders.
(xv) A Notice of Borrowing relating to the Initial Extension
of Credit.
(xvi) Favorable opinions of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.,
special counsel for the Loan Parties, (ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
counsel for the Loan Parties, (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice
President-Law and Administration and General Counsel of Alliance
Resource Holdings, Inc., in substantially the respective forms of
Exhibits G-1, G-2 and G-3 hereto, and (iv) local counsel with respect
to the laws of Illinois, Indiana, Kentucky, Maryland and West Virginia
in form satisfactory to the Co-Administrative Agents.
(xvii) A favorable opinion of Shearman & Sterling, counsel
for the Agents, in form and substance satisfactory to the Agents.
(b) The Lenders shall be satisfied with the partnership or
limited liability company structure and capitalization of each Loan Party,
including, without limitation, the terms
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and conditions of the Constitutive Documents and each class of Equity Interest
in such Loan Party and each other agreement or instrument relating to such
partnership structure, legal structure, and capitalization, and the tax status
of the Borrower as being treated as a partnership for tax purposes.
(c) The Lender Parties shall be satisfied that all Existing
Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full
or otherwise satisfied and extinguished and that all Surviving Debt shall be on
terms and conditions satisfactory to the Lender Parties.
(d) Before giving effect to the Transaction, there shall have
occurred no Material Adverse Change since December 31, 1998.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its Subsidiaries
pending or, to the best knowledge of the Borrower, threatened before any court,
governmental agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect other than the matters satisfactory to the Paying Agent
and described on Schedule 4.01(f) hereto (the "DISCLOSED LITIGATION") or (ii)
purports to affect the legality, validity or enforceability of any Transaction
Document or the consummation of the Transaction, and there shall have been no
adverse change in the status, or financial effect on any Loan Party or any of
its Subsidiaries, of the Disclosed Litigation from that described on Schedule
4.01(f) hereto.
(f) All governmental and third party consents and approvals
necessary in connection with the Transaction shall have been obtained or shall
be in the process of being obtained so long as it is not anticipated that such
consents and approvals may not be obtained (in each case without the imposition
of any conditions that are not acceptable to the Lender Parties) and those
obtained shall be in effect (other than those the failure to obtain which would
individually or collectively be reasonably likely not to have a Material
Adverse Effect); and no law or regulation shall be applicable in the judgment
of the Lender Parties, in each case that restrains, prevents or imposes
materially adverse conditions upon the Transaction or the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any Collateral.
(g) The Agents shall have completed a due diligence
investigation of each Loan Party and its Subsidiaries in scope, and with
results, satisfactory to the Lender Parties.
(h) The Borrower shall have paid all accrued fees of the
Agents, the Joint Arrangers and the Lender Parties and all reasonable expenses
of the Agents (including the reasonable fees and expenses of Shearman &
Sterling, counsel to the Agents) to the extent such
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fees and expenses have been invoiced at least 24 hours prior to the date hereof
or are specifically set forth in the Fee Letter.
(i) The Borrower shall have received (i) $180,000,000 in
gross proceeds from the sale of the Senior Notes and (ii) $[140,000,000] in Net
Cash Proceeds from the sale of the MLP Units.
(j) The MLP Units and the Senior Notes shall have been issued
in accordance with the Transaction Documents.
(k) The Senior Notes shall have received long-term senior
unsecured non-credit enhanced debt ratings of at least BBB- from both Duff &
▇▇▇▇▇▇ Credit Rating Co. and Fitch IBCA, Inc and such rating shall remain in
effect at the time of closing.
(l) The Borrowers and its Subsidiaries employee benefit
plans shall be, in all material respects, funded in accordance with the minimum
statutory requirements, (ii) no "reportable event" (as defined in ERISA, but
excluding events for which reporting has been waived) shall have occurred and
be continuing as to any such employee benefit plan, and (iii) no termination
of, or withdrawal from, any such employee benefit plan shall have occurred and
be continuing or be contemplated.
(m) The Company and AROP shall have completed each of the
transactions described in the Contribution Agreement (the "CONTRIBUTION
TRANSACTIONS") and no provision of the Contribution Agreement relating to the
Contribution Transactions shall have been waived, modified or supplemented
without the consent of the Co-Administrative Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Appropriate Lender to make an Advance (other than a Swing
Line Advance made by a Revolving Credit Lender pursuant to Section 2.02(b)) on
the occasion of each Borrowing (including the initial Borrowing) and the
obligation of the Swing Line Bank to make a Swing Line Advance on the occasion
of each Swing Line Borrowing, shall be subject to the further conditions
precedent that on the date of such Borrowing (a) the following statements shall
be true (and each of the giving of the applicable Notice of Borrowing or Notice
of Swing Line Borrowing and the acceptance by the Borrower of the proceeds of
such Borrowing shall constitute a representation and warranty by the Borrower
that both on the date of such notice and on the date of such Borrowing such
statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date, before
and after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such
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date, other than any such representations or warranties that, by their terms,
refer to an earlier date, in which case as of such earlier date; and
(ii) no Default has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds therefrom;
and (b) the Paying Agent shall have received such other approvals, opinions or
documents as any Appropriate Lender Party through the Paying Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender Parties
unless an officer of the Paying Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Paying Agent such Lender Party's
ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each
general partner or managing member of each Loan Party and each of its
Subsidiaries (i) is a corporation, limited partnership or limited liability
company, as the case may be, duly organized or formed, validly existing and in
good standing or validly subsisting under the laws of the jurisdiction of its
organization or formation, (ii) is duly qualified and in good standing as a
foreign corporation, limited partnership or limited liability company in each
other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed and (iii) has all
requisite corporate, limited liability company or partnership power and
authority (including, without limitation, all material governmental licenses,
permits and other approvals other than such licenses, permits and other
approvals that are being obtained in the ordinary course of business) to own or
lease and operate its properties and to carry on its business as now conducted
and as proposed to be conducted. All of the outstanding Capital Stock in the
Company and AROP have been validly issued, are fully paid and non-assessable
and are owned by the Persons in the amounts specified on Schedule 4.01(a)
hereto free and clear of all Liens.
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(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the date
hereof (as to each such Subsidiary) the status of each Subsidiary as a
Restricted Subsidiary or Unrestricted Subsidiary, the jurisdiction of its
organization, the number of shares of each class of its Capital Stock
authorized, and the number outstanding, on the date hereof and the percentage
of each such class of its Capital Stock owned (directly or indirectly) by such
Loan Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Capital Stock in each Loan Party's Subsidiaries
have been validly issued, are fully paid and non-assessable and are owned by
such Loan Party and/or one or more of its Subsidiaries free and clear of all
Liens.
(c) The execution, delivery and performance by each Loan
Party of each Transaction Document to which it is or is to be a party, and the
consummation of the Transaction, are within such Loan Party's or such Loan
Party's general partner's or managing member's corporate, partnership or
limited liability company powers, have been duly authorized by all necessary
action by or on behalf of such Loan Party (including, without limitation, all
necessary partner, managing member or other similar action), and do not (i)
contravene such Loan Party's or such Loan Party's general partner's or managing
member's Constitutive Documents, (ii) violate any law, rule, regulation
(including, without limitation, Regulations U and X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default or require any payment to be made under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan Documents,
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of any Loan Party or any of its Subsidiaries.
No Loan Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
or in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which would be
reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery, recordation,
filing or performance by or on behalf of any Loan Party or any general partner
or managing member of any Loan Party of any Transaction Document to which it is
or is to be a party, or for the consummation of the Transaction, (ii) the grant
by any Loan Party of the Liens granted by it pursuant to the Pledge Agreement,
(iii) except as required to comply with the requirements of Articles 8 and 9 of
the New York Uniform Commercial Code, the perfection or maintenance of the
Liens created under the Pledge Agreement (including the first priority nature
thereof) or (iv) the exercise by any Agent or any Lender Party of its rights
under the Loan Documents or the remedies in respect of the Collateral
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pursuant to the Pledge Agreement, except for the authorizations, approvals,
actions, notices and filings listed on Schedule 4.01(d) hereto, all of which
have been duly obtained, taken, given or made, or are in the process of being
obtained and it is not anticipated that such consents and approvals may not be
obtained (in each case without the imposition of any conditions that are not
acceptable to the Lender Parties) and those obtained are in full force and
effect (other than those the failure to obtain which would not individually or
collectively be reasonably likely to have a Material Adverse Effect).
(e) This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and delivered
by each Loan Party party thereto. This Agreement is, and each other Transaction
Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan
Party in accordance with its terms.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or to the best knowledge of the Borrower,
threatened before any court, governmental agency or arbitrator that (i) would
be reasonably expected to be adversely determined, and if so determined would
be reasonably expected to have a Material Adverse Effect except as set forth on
Schedule 4.01(f) hereto, or (ii) purports to affect the legality, validity or
enforceability of any Transaction Document or the consummation of the
Transaction, and there has been no material adverse change in the status, or
financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 4.01(f) hereto.
(g) The Consolidated balance sheet of Alliance Resource Group
as at December 31, 1998, and the related Consolidated statement of income and
Consolidated statement of cash flows of Alliance Resource Group for the fiscal
year then ended, accompanied by an unqualified opinion of Deloitte & Touche
LLP, independent public accountants, and the Consolidated balance sheet of
Alliance Resource Group as at March 31, 1999, and the related Consolidated
statement of income and Consolidated statement of cash flows of Alliance
Resource Group for the three months then ended, duly certified by the Chief
Financial Officer (or person performing similar functions) of the Company,
copies of which have been furnished to each Lender Party, fairly present,
subject, in the case of said balance sheet as at March 31, 1999, and said
statements of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of Alliance
Resource Group as at such dates and the Consolidated results of operations of
Alliance Resource Group for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent basis,
and since December 31, 1998, there has been no Material Adverse Change.
(h) The Consolidated pro forma balance sheet of the MLP and
its Subsidiaries as at March 31, 1999, and the related Consolidated pro forma
statement of income and cash
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flows of the MLP and its Subsidiaries for the three months then ended,
certified by the Chief Financial Officer (or person performing similar
functions) of the Company, copies of which have been furnished to each Lender
Party, fairly present the Consolidated pro forma financial condition of the MLP
and its Subsidiaries as at such date and the Consolidated pro forma results of
operations of the MLP and its Subsidiaries for the period ended on such date,
in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The Consolidated and consolidating forecasted balance
sheets, statements of income and statements of cash flows of the Borrower and
its Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(a)(xii) or 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, the Borrower's best estimate of its future financial
performance.
(j) Neither the Information Memorandum nor any other written
information, exhibit or report furnished by or on behalf of any Loan Party to
any Agent or any Lender Party in connection with the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements made therein not misleading in
light of the circumstances under which the same were made.
(k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no proceeds
of any Advance will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
(l) Neither the Borrower nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended. Neither any Loan Party nor any of
its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended. Neither the making of any
Advances, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated by the
Transaction Documents, will violate any provision of any such Act or any rule,
regulation or order of the Securities and Exchange Commission thereunder.
(m) Neither the Borrower nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate restriction that
would be reasonably likely to have a Material Adverse Effect.
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(n) All actions necessary or desirable to perfect and protect
the security interest in the Collateral created under the Pledge Agreement have
been duly made or taken and are in full force and effect, and the Pledge
Agreement creates in favor of the Paying Agent for the benefit of the Secured
Parties a valid and, together with such filings and other actions, perfected
first priority security interest in the Collateral, securing the payment of the
Secured Obligations, and all filings and other actions necessary or desirable
to perfect and protect such security interest have been duly taken. The Loan
Parties are the legal and beneficial owners of the Collateral free and clear of
any Lien, except for the Liens created under the Pledge Agreement.
(o) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(p) (i) Set forth on Schedule 4.01(p) hereto is a complete
and accurate list of all Plans and Multiemployer Plans.
(ii) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan which could reasonably be expected to
result in a Material Adverse Effect.
(iii) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Paying Agent, is complete and accurate and fairly presents the funding
status of such Plan, and since the date of such Schedule B there has
been no change in such funding status which could reasonably be
expected to result in a Material Adverse Effect.
(iv) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability
to any Multiemployer Plan which could reasonably be expected to result
in a Material Adverse Effect.
(v) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA which could reasonably be
expected to result in a Material Adverse Effect.
(q) (i) Except as set forth on Part I of Schedule 4.01(q)
hereto, the operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable Environmental
Laws and Environmental Permits, all past non-compliance with such Environmental
Laws and Environmental Permits has been resolved
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without ongoing obligations or costs, and no circumstances exist that would be
reasonably likely to (A) form the basis of an Environmental Action against any
Loan Party or any of its Subsidiaries or any of their properties that could
have a Material Adverse Effect or (B) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) Except as set forth on Part II of Schedule 4.01(q)
hereto, none of the properties currently or formerly owned or operated
by any Loan Party or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state
or local list or is adjacent to any such property; there are no and
never have been any underground or aboveground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which
Hazardous Materials are being or have been treated, stored or disposed
on any property currently owned or operated by any Loan Party or any
of its Subsidiaries or, to the best of its knowledge, on any property
formerly owned or operated by any Loan Party or any of its
Subsidiaries; there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party or any of
its Subsidiaries; and Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries.
(iii) Except as set forth on Part III of Schedule 4.01(q)
hereto, neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at
any site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the requirements
of any Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries have been disposed of in a manner not reasonably
expected to result in material liability to any Loan Party or any of
its Subsidiaries.
(r) (i) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in all tax
returns (Federal, state, local and foreign) required to be filed and has paid
all taxes shown thereon to be due, together with applicable interest and
penalties.
(ii) Set forth on Schedule 4.01(r) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each
Loan Party and each of its Subsidiaries and Affiliates for which
Federal income tax returns have been filed and for which the
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expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an
"OPEN YEAR").
(iii) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiaries and Affiliates proposed by the Internal
Revenue Service with respect to Open Years does not exceed $0. No
issues have been raised by the Internal Revenue Service in respect of
Open Years that, in the aggregate, would be reasonably likely to have
a Material Adverse Effect.
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiaries and Affiliates proposed by all state, local
and foreign taxing authorities (other than amounts arising from
adjustments to Federal income tax returns) does not exceed $0. No
issues have been raised by such taxing authorities that, in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
(v) Each of AROP and MLP will be treated as a partnership for
Federal income tax purposes.
(s) Neither the business nor the properties of the Borrower
or any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that would be reasonably likely to have a Material
Adverse Effect.
(t) Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt), showing as of
the date hereof the obligor and the principal amount outstanding thereunder.
(u) Set forth on Schedule 4.01(u) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the obligor
and the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule (if any) therefor.
(v) Set forth on Schedule 4.01(v) hereto is a complete and
accurate list of all Liens on the property or assets of the Borrower or any of
its Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or assets
of the Borrower or such Subsidiary subject thereto.
(w) Set forth on Schedule 4.01(w) hereto is a complete and
accurate list of all Investments held by the Borrower or any of its
Subsidiaries on the date hereof, showing as of the date hereof the amount,
obligor or issuer and maturity, if any, thereof.
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(x) The Borrower has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and operations that
could be adversely affected by the risk that computer applications used by the
Borrower or any of its Subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999 (the "YEAR 2000 PROBLEM"), (ii) distributed a
questionnaire to each of its suppliers, vendors and customers requesting such
party s plans and timetable for addressing the Year 2000 Problem, (iii)
developed a plan and timetable for addressing the Year 2000 Problem on a timely
basis and no later than November 31, 1999 will have completed such plan, and
(iv) to date, implemented that plan in accordance with such timetable. Based on
the foregoing, the Borrower believes that all computer applications that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 ("YEAR
2000 COMPLIANT"), except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(y) (i) The Borrower and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, service
marks, trademarks and trade names, or rights thereto, for which the failure so
to do, individually or in the aggregate, would reasonably be likely to have a
Material Adverse Effect, without known conflict with the rights of others, (ii)
to the best knowledge of the Borrower, no product or practice of the Borrower
or any of its Subsidiaries infringes in any material respect on any license,
permit, franchise, authorization, patent, copyright, service ▇▇▇▇, trademark,
trade name or other right owned by any other Person, and (iii) to the best
knowledge of the Borrower, there is no material violation by any Person of any
right of the Borrower of any of its Subsidiaries with respect to any patent,
copyright, service ▇▇▇▇, trademark, trade name or other right owned or used by
the Borrower or any of its Subsidiaries.
(z) To the best knowledge of the Borrower, the Borrower and
its Subsidiaries maintain adequate reserves for future costs associated with
any lung disease claim alleging pneumoconiosis or silicosis or arising out of
exposure or alleged exposure to coal dust or the coal mining environment, and
such reserves are not less than those required by GAAP.
(aa) The Borrower s obligations under this Agreement and the
Notes and each Subsidiary Guarantor s obligations under the Subsidiary
Guaranty, will, upon (a) the execution and delivery of the Notes and the
execution and delivery of such Subsidiary Guaranty, respectively, and (b) the
effectiveness of the Assumption Agreement, rank pari passu, without preference
or priority, with all of the other outstanding unsecured and unsubordinated
Debt of the Borrower or of such Subsidiary Guarantor, as the case may be
(disregarding for this purpose the Collateral for the Term Advances pledged
pursuant to the Pledge Agreement).
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
or any other monetary obligation of any Loan Party under any Loan Document
shall remain unpaid or any Lender Party shall have any Commitment hereunder,
the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA, except to the extent failure so to comply, individually
or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property, except to the extent
failure to so pay or discharge, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required to pay
or discharge any such tax, assessment, charge or claim that is being contested
in good faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause
each of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and renew and
cause each of its Subsidiaries to obtain and renew all material Environmental
Permits necessary for its operations and properties; and conduct, and cause
each of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, in
accordance in all material respects, with the requirements of all Environmental
Laws; provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in good
faith and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such
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amounts and covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates, except to the extent failure to
maintain such insurance, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
(e) Preservation of Partnership or Limited Liability Company
Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its existence, legal structure, legal name (in the case
of the Borrower), rights (charter and statutory), permits, licenses, approvals,
privileges, franchises and intellectual property; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(d) and; provided further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right, permit,
license, approval, privilege, franchise or intellectual property if the Board
of Directors (or persons performing similar functions) of or on behalf of the
Borrower or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(f) Visitation Rights. At any reasonable time and from time
to time upon reasonable notice, permit any of the Agents or any of the Lender
Parties, or any agents or representatives thereof, to examine and make copies
of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified public
accountants.
(g) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, except to the
extent the failure to so maintain or preserve such properties, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(i) Covenant to Guarantee Obligations. Upon the formation or
acquisition by the Borrower of any new direct or indirect Restricted Subsidiary
that is a Domestic Subsidiary, the Borrower shall, in each case at the
Borrower's expense (i) within 10 days after such formation or acquisition,
cause each such Restricted Subsidiary, and cause each direct and indirect
parent of such Restricted Subsidiary (if it has not already done so), to duly
execute and deliver to the
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Paying Agent a guaranty or guaranty supplement, in form and substance
satisfactory to the Paying Agent, guaranteeing the other Loan Parties'
obligations under the Loan Documents and (ii) at any time and from time to
time, promptly execute and deliver any and all further instruments and
documents and take all such other action as the Paying Agent may deem necessary
or desirable in obtaining the full benefits of such guaranties.
(j) Further Assurances. (i) Promptly upon request by the
Paying Agent, or any Lender Party through the Paying Agent, correct, and cause
each of its Subsidiaries promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon request by the Paying Agent, or any Lender
Party through the Paying Agent, take such action as the Paying Agent,
or any Lender Party through the Paying Agent, may reasonably require
from time to time in order to (A) carry out more effectively the
purposes of the Loan Documents, and (B) perfect and maintain the
validity, effectiveness and priority of the Pledge Agreement and any
of the Liens intended to be created thereunder, and cause each of its
Subsidiaries to do so.
(k) Performance of Related Documents. Perform and observe,
and cause each of its Subsidiaries to perform and observe, all of the terms and
provisions of each Related Document to be performed or observed by it, maintain
each such Related Document in full force and effect, enforce such Related
Document in accordance with its terms, take all such action to such end as may
be from time to time requested by the Paying Agent and, upon request of the
Paying Agent, make to each other party to each such Related Document such
demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Related
Document, except, in any case, where the failure to do so, either individually
or in the aggregate, would not be reasonably likely to have a Material Adverse
Effect.
(l) Preparation of Environmental Reports. At the request of
the Paying Agent from time to time and upon the occurrence and during the
continuance of an Event of Default, provide to the Lender Parties within 60
days after such request, at the expense of the Borrower, an environmental site
assessment report for any of its or its Subsidiaries' properties described in
such request, prepared by an environmental consulting firm acceptable to the
Paying Agent, indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in connection with
any Hazardous Materials on such properties; without limiting the generality of
the foregoing, if the Paying Agent determines at any time that a material risk
exists that any such report will not be provided within the time referred to
above, the Paying Agent may retain an environmental consulting firm to prepare
such report at the expense of the Borrower, and the Borrower hereby grants and
agrees to cause any Subsidiary that owns any property described in such request
to grant at the time of such request
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to the Paying Agent, the Lender Parties, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such
an assessment.
(m) Compliance with Terms of Leaseholds. Make all payments
and otherwise perform all obligations in respect of all leases of real property
to which the Borrower or any of its Restricted Subsidiaries is a party, keep
such leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or canceled,
notify the Paying Agent of any default by any party with respect to such leases
and cooperate with the Paying Agent in all respects to cure any such default,
and cause each of its Subsidiaries to do so, except, in any case, where the
failure to do so, either individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect.
(n) Maintenance of Controlled Reserve Base. Maintain a
controlled reserve base of sufficient mineable tonnage of coal such that the
ratio of aggregate controlled mineable tons of coal over current annual
production levels of tons of coal per year is greater than 125% of the
remaining duration of the Senior Notes issued pursuant to the Note Purchase
Agreement. For purposes of this Section 5.01(n), a "controlled reserve base" of
coal denotes the aggregate of coal reserves which may be economically and
legally mined by the Borrower or a Restricted Subsidiary at the time of the
reserve determination. In making any determination of reserves for the purpose
of this Section 5.01(n), the Borrower may include properties ("OPTION
PROPERTIES") which may be acquired by the Borrower or a Restricted Subsidiary
under a valid and enforceable option or purchase contract which is subject to
no conditions other than the payment of the purchase price provided for under
such option or contract (the "CONTRACT PRICE"); provided that to the extent and
for so long as the Borrower shall elect to include Option Properties in any
such determination, (x) the amount equal to the Contract Price could then be
incurred as Debt under the provisions of Section 10.1(a) of the Note Purchase
Agreement (the "Notional Debt") and (y) assuming for all purposes of Sections
10.1(a) and 10.4(a)(ii) of the Note Purchase Agreement that amount equal to all
such Notional Debt was considered to be outstanding.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other monetary obligation of any Loan Party under any Loan Document shall
remain unpaid or any Lender Party shall have any Commitment hereunder, the
Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its Restricted
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names the Borrower or any
of its Restricted Subsidiaries as debtor, or sign or suffer to exist, or permit
any of its Restricted Subsidiaries to sign or suffer to
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exist, any security agreement authorizing any secured party thereunder to file
such financing statement, or assign, or permit any of its Restricted
Subsidiaries to assign, any accounts or other right to receive income, except:
(i) Liens created under the Loan Documents including Liens on
the Qualifying Securities;
(ii) Permitted Liens;
(iii) other Liens incurred in the ordinary course of business
securing obligations in an amount not to exceed $10,000,000;
(iv) Liens existing on the date hereof and described on
Schedule 4.01(v) hereto;
(v) non-recourse Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Restricted Subsidiaries
in the ordinary course of business to secure the purchase price of
such property or equipment or to secure non-recourse, tax-exempt Debt
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment to be
subject to such Liens, or Liens existing on any such property or
equipment at the time of acquisition (other than any such Liens
created in contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved, and no
such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed
or replaced;
(vi) Liens arising in connection with Capital Leases
permitted under Section 5.02(b)(iii)(G); provided that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capital Leases;
(vii) the replacement, extension or renewal of any Lien
permitted by clauses (iii) through (vi) above upon or in the same
property theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby;
(viii) Liens on personal property leased under leases
(including synthetic leases) entered into by the Borrower which are
accounted for as operating leases in accordance with GAAP to the
extent not prohibited under Section 5.02(h);
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(ix) easements, exceptions or reservations in any property of
the Borrower or any Restricted Subsidiary granted or reserved for the
purpose of pipelines, roads, the removal of oil, gas, coal or other
minerals, and other like purposes, or for the joint or common use of
real property, facilities and equipment, which are incidental to, and
do not materially interfere with, the ordinary conduct of the business
of the Borrower or any of its Restricted Subsidiaries;
(x) Liens on documents of title and the property covered
thereby securing obligations in respect of letters of credit that are
commercial letters of credit (i.e., obtained for the purpose of paying
all or a portion of the purchase price of such property) to the extent
not prohibited under Section 5.02(b); and
(xi) Liens on property or assets of the Borrower or any of
its Restricted Subsidiaries securing Debt owing to the Borrower or to
a Wholly Owned Restricted Subsidiary in an aggregate principal amount
not to exceed $10,000,000; provided that no promissory note evidencing
such intercompany Debt shall be pledged to any other Person as
security for any Debt or any other obligation of the Borrower or such
Restricted Subsidiary.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) in the case of the Borrower, Debt owed to a Wholly Owned
Restricted Subsidiary of the Borrower, and
(ii) in the case of any Restricted Subsidiary of the
Borrower, Debt owed to the Borrower or to a Wholly Owned Restricted
Subsidiary of the Borrower; and
(iii) in the case of the Borrower and its Restricted
Subsidiaries,
(A) Debt under the Loan Documents,
(B) the Surviving Debt,
(C) Debt under the Note Purchase Agreement evidenced
by the Senior Notes in a principal amount not to exceed
$180,000,000 plus, to the extent not otherwise utilized
pursuant to clause (H) of this Section 5.02(b)(iii),
$190,000,000,
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(D) non-recourse Debt of the Borrower and Restricted
Subsidiaries incurred solely to finance Capital Expenditures
for the development of Greenfield Projects,
(E) non-recourse Debt secured by Liens permitted by
Section 5.02(a)(v),
(F) Debt in respect of Swaps incurred in the
ordinary course of business and consistent with prudent
business practice with the aggregate value thereof not to
exceed $10,000,000 at any time outstanding, and
(G) any Debt extending the maturity of, or refunding
or refinancing, in whole or in part, any Surviving Debt or
other Debt permitted under this Section 5.02(b), provided
that the principal amount of such Debt shall not be increased
above the principal amount thereof outstanding immediately
prior to such extension, refunding or refinancing, and the
direct and contingent obligors therefor shall not be changed,
as a result of or in connection with such extension,
refunding or refinancing, provided further that the terms
relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other
material terms taken as a whole, of any such extending,
refunding or refinancing Debt, and of any agreement entered
into and of any instrument issued in connection therewith,
are consistent with prudent business practice and incurred in
the ordinary course of business and, in the case of the
Senior Notes, are on terms no less favorable in any material
respect to the Loan Parties or the Lender Parties than the
terms of the Senior Notes being extended, refunded or
refinanced.
(H) other unsecured Debt incurred in the ordinary
course of business and Capital Lease Obligations aggregating
not more than $10,000,000 at any time outstanding other than
Contingent Obligations of the Borrower or any Restricted
Subsidiary with respect to any Debt or other obligation of
any Unrestricted Subsidiary; provided, in each case, that the
Borrower shall be in pro forma compliance with the covenants
contained in Section 5.04, calculated based on the financial
statements most recently delivered to the Lender Parties
pursuant to Section 5.03 and as though such Debt or Capital
Lease Obligations had been incurred at the beginning of the
four-quarter period covered thereby, as evidenced by a
certificate of the Chief Financial Officer (or person
performing similar functions) of the Borrower delivered to
the Paying Agent demonstrating such compliance.
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(c) Change in Nature of Business. Make, or permit any of its
Restricted Subsidiaries to make, any material change in the nature of their
businesses, taken as a whole, as carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any Person
or permit any Person to merge into it or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to any Person, or permit any of its Restricted Subsidiaries to do
so, except that:
(i) any Restricted Subsidiary of the Borrower may merge into
or consolidate with any other Wholly Owned Restricted Subsidiary of
the Borrower, provided that, in the case of any such merger or
consolidation, the Person formed by such merger or consolidation shall
be a Wholly Owned Restricted Subsidiary of the Borrower, provided
further that, in the case of any such merger or consolidation to which
a Subsidiary Guarantor is a party, the Person formed by such merger or
consolidation shall be a Subsidiary Guarantor;
(ii) any of the Borrower's Subsidiaries may consolidate with
or merge into the Borrower, provided that the Borrower is the
surviving entity; and
(iii) any of the Restricted Subsidiaries of the Borrower may
(A) merge into or consolidate with, or (B) convey, transfer or lease
substantially all of its assets in compliance with Section 5.02(e)
(other than clause (iv) thereof) in a single transaction or series of
transactions to, any other Person or (C) permit any other Person to
merge into or consolidate with it; provided, in the case of any merger
or consolidation or conveyance, transfer or lease of substantially all
of its assets, (1) the Person formed by such consolidation or into
which the Restricted Subsidiary shall be merged or assets shall be
conveyed, transferred or leased shall, at the effective time of such
merger or consolidation or transfer or lease be Solvent and shall have
assumed all obligations of such Restricted Subsidiary under any
Subsidiary Guaranty to which such Restricted Subsidiary is a party in
a writing satisfactory in form and substance to the Required Lenders
and (2) the Borrower shall have caused to be delivered to the Paying
Agent an opinion of independent counsel satisfactory to the Paying
Agent to the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with the terms thereof;
provided, however, that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default.
(e) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Restricted Subsidiaries to sell,
lease, transfer or otherwise dispose of, any
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assets, or grant any option or other right to purchase, lease or otherwise
acquire any assets other than Inventory to be sold in the ordinary course of
its business, except:
(i) sales of Inventory in the ordinary course of its
business;
(ii) sales of assets that are obsolete or no longer used or
useful for fair value in an aggregate amount not to exceed $5,000,000
over the term of the Facilities;
(iii) sales of assets (x) by the Borrower to a Wholly Owned
Restricted Subsidiary, or (y) by a Restricted Subsidiary to the
Borrower or to another Restricted Subsidiary with respect to which the
Borrower shall have at least the same degree of ownership and control
as it had with respect to the Restricted Subsidiary responsible for
the asset sale, transfer or disposition;
(iv) in a transaction authorized by Section 5.02(d); and
(v) sales of other assets with a fair value in an amount not
to exceed $10,000,000 individually or $25,000,000 in the aggregate
over the term of the Facilities; provided, however, that the purchase
price paid to the Borrower or such Restricted Subsidiary for such
asset shall be no less than the fair market value of such asset at the
time of such sale and such sale shall be in the best interest of the
Borrower or such Restricted Subsidiary, as determined in good faith by
the Board of Directors (or other person performing such functions) of
the Borrower or such Restricted Subsidiary, as the case may be, and
(ii) immediately after giving effect to such sales of assets, no
Default or Event of Default shall exist;
provided that in the case of sales of assets pursuant to clause (v) above, the
Borrower shall, on the date of receipt by the Borrower or any of its
Subsidiaries of the Net Cash Proceeds from such sale, prepay the Advances
pursuant to, and in the amount and order of priority set forth in, Section
2.05(b)(i), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any
of its Restricted Subsidiaries to make or hold, any Investment in any Person,
except:
(i) Investments consisting of property to be used in the
ordinary course of business;
(ii) Investments in accounts receivable arising from the
sales of goods and services in the ordinary course of business;
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(iii) equity Investments by the Borrower and its Restricted
Subsidiaries in Wholly Owned Restricted Subsidiaries;
(iv) Investments by the Borrower and its Restricted
Subsidiaries in Cash Equivalents;
(v) Investments existing on the date hereof and described on
Schedule 4.01(w) hereto;
(vi) Investments by the Borrower in Swaps permitted under
Section 5.02(b)(iii)(F); and
(vii) other Investments in any other Person; provided that
with respect to Investments made under this clause (vii): (1) any
newly acquired or organized Subsidiary of the Borrower or any of its
Restricted Subsidiaries shall be a Restricted Subsidiary thereof; (2)
immediately before and after giving effect thereto, no Default shall
have occurred and be continuing or would result therefrom; (3) any
company or business acquired or invested in pursuant to this clause
(vii) shall be in the same line of business as the business of the
Borrower or any of its Restricted Subsidiaries; and (4) immediately
after giving effect to the acquisition of a company or business
pursuant to this clause (vii), the Borrower shall be in pro forma
compliance with the covenants contained in Section 5.04, calculated
based on the financial statements most recently delivered to the
Lender Parties pursuant to Section 5.03 and as though such acquisition
had occurred at the beginning of the four-quarter period covered
thereby, as evidenced by a certificate of the Chief Financial Officer
(or person performing similar functions) of the Borrower delivered to
the Lender Parties demonstrating such compliance;
(viii) Investments by the Borrower and its Restricted
Subsidiaries in Unrestricted Subsidiaries and in Restricted
Subsidiaries that are not Wholly Owned Subsidiaries in an amount not
to exceed $10,000,000 at any time outstanding; and
(ix) Investments consisting of intercompany Debt permitted
under Section 5.02(b)(i) and (ii).
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of its
Capital Stock now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as such,
make any distribution of assets, Capital Stock, obligations or securities to
its stockholders, partners or members (or the equivalent Persons thereof) as
such, or permit any of its Restricted Subsidiaries to do any of the foregoing
(each of the foregoing being a "RESTRICTED PAYMENT"), or permit any of its
Restricted Subsidiaries to purchase, redeem, retire,
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defease or otherwise acquire for value any Capital Stock in the Borrower or to
issue or sell any Capital Stock therein, except that, so long as no Default or
Event of Default shall have occurred and be continuing at the time of any
action described in clause (i) or (ii) below or would result therefrom:
(i) the Borrower may declare, make or incur a liability to
make any such Restricted Payment; provided that immediately after
giving effect thereto (i) the aggregate amount of Restricted Payments
made in any fiscal quarter of the Borrower shall not exceed Available
Cash (as defined in the MLP Agreement as in effect on the date hereof)
for the immediately preceding fiscal quarter of the Borrower, and (ii)
promptly after each such distribution, the Borrower will provide the
Lender Parties with a report in form satisfactory to the Lender
Parties setting forth the amount of the cash reserve withheld from
distribution that is necessary for the proper conduct of business
(including reserves for future capital expenditures) as set forth in
the most recent Business Plan delivered to the Paying Agent pursuant
to Section 5.03(d); and
(ii) (A) any Wholly Owned Subsidiary of the Borrower may
declare, make or incur a liability to make any Restricted Payment to
the Borrower or any other Wholly Owned Subsidiary of the Borrower of
which it is a Subsidiary, (B) any non-Wholly Owned Subsidiary may
declare, make or incur a liability to make any Restricted Payment to
its equity holders, provided that the general partner of such
Subsidiary does not own greater than a 2% Equity Interest in such
Subsidiary, and (C) any Subsidiary of the Borrower may accept capital
contributions from its parent to the extent permitted under Section
5.02(f)(iii).
(h) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee (excluding for this purpose
obligations as lessee under Capital Leases) (i) for the rental or hire of real
or personal property in connection with any sale and leaseback transaction, or
(ii) for the rental or hire of other real or personal property of any kind
under leases or agreements to lease having an original term of one year or more
that would cause the direct and contingent liabilities of the Borrower and its
Subsidiaries, on a Consolidated basis, in respect of all such obligations to
exceed $10,000,000 payable in any period of 12 consecutive months.
(i) Amendments of Constitutive Documents. Amend, or permit
any of its Restricted Subsidiaries to amend, its Constitutive Documents (other
than the Partnership Agreement) in any manner that has a Material Adverse
Effect.
(j) Accounting Changes. Make or permit, or permit any of its
Restricted Subsidiaries to make or permit, any change in (i) accounting
policies or reporting practices, except as required by generally accepted
accounting principles, or (ii) Fiscal Year.
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(k) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner the Senior Notes for so long as any Term Advances are outstanding,
except mandatory prepayments of principal, and payments of interest, required
under the Note Purchase Agreement.
(l) Amendment, Etc., of Related Documents. Amend, modify or
change in any manner any term or provision of the Note Purchase Agreement that
would allow for any scheduled amortization payments to be made on the Senior
Notes prior to the date the Facilities are paid in full.
(m) Partnerships, Etc. Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Restricted Subsidiaries to do so, except that (i) the Company may be a general
partner of AROP and MLP and (ii) AROP and/or any of its Restricted Subsidiaries
may be a general partner in any partnership or joint venture provided such
partnership or such joint venture incurs no Debt or other liability for which
AROP or such Subsidiary is liable as guarantor or a provider of any other
credit support, or by virtue of its status as such general partner or joint
venturer.
(n) Speculative Transactions. Enter into any foreign currency
exchange contracts, interest rate swap arrangements or other derivative
contracts or transactions, other than such contracts, arrangements or
transactions entered into in the ordinary course of business for the purpose of
hedging (i) the interest rate exposure of the Borrower or any of its Restricted
Subsidiaries, (ii) the purchase requirements of the Borrower or any of its
Restricted Subsidiaries with respect to raw materials and inventory and (iii)
the fluctuations in the prices of commodities affecting the Borrower or any of
its Restricted Subsidiaries.
(o) Formation of Subsidiaries. Organize or invest, or permit
any Restricted Subsidiary to organize or invest, in any new Subsidiary except
as permitted under Section 5.02(f)(vii) or 5.02(f)(viii).
(p) Payment Restrictions Affecting Restricted Subsidiaries.
Directly or indirectly, enter into or suffer to exist, or permit any of its
Restricted Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare or pay
dividends or other distributions in respect of its Capital Stock or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, the Borrower or any Subsidiary of the Borrower (whether
through a covenant restricting dividends, loans, asset transfers or
investments, a financial covenant or otherwise), except the Loan Documents and
the Note Purchase Agreement.
(q) Transactions with Affiliates. Except as set forth on
Schedule 5.01(q) hereto, enter into, or permit any of its Restricted
Subsidiaries to enter into, directly or indirectly,
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any transaction or group of related transactions (including without limitation
the purchase, lease, sale or exchange of properties of any kind or the
rendering of any service) with any Affiliate, except in the ordinary course and
pursuant to the reasonable requirements of the Borrower's or such Restricted
Subsidiary's business and upon fair and reasonable terms no less favorable
(taken as a whole, as determined in good faith by the board of directors of the
General Partner) to the Borrower or such Restricted Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person not an
Affiliate.
(r) Change in Status of Subsidiaries. Change the designation
of any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary
except, so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may at any time and from time to time, upon not less
than 30 days' prior written notice given to each Lender Party, designate a
previously Restricted Subsidiary as an Unrestricted Subsidiary or a previously
Unrestricted Subsidiary (including a new Subsidiary designated on the date of
its formation or acquisition) which satisfies the requirements of clauses (i),
(ii) and (iii) of the definition of "Restricted Subsidiary" as a Restricted
Subsidiary, provided that immediately after such designation and after giving
effect thereto no Default or Event of Default shall have occurred and be
continuing, and the Borrower would be permitted, pursuant to the provisions of
Section 10.1(a) of the Note Purchase Agreement to incur at least $1 of
additional Debt (as defined in the Note Purchase Agreement) owing to a Person
other than a Restricted Subsidiary, and provided further that after such
designation the status of such Subsidiary had not been changed more than twice.
SECTION 5.03. Reporting Requirements. So long as any Advance
or any other monetary obligation of any Loan Party under any Loan Document
shall remain unpaid, or any Lender Party shall have any Commitment hereunder,
the Borrower will furnish to the Paying Agent:
(a) Default Notice. As soon as possible and in any event
within five Business Days after the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse Effect
continuing on the date of such statement, a statement of the Chief Financial
Officer (or person performing similar functions) of the Borrower setting forth
details of such Default and the action that the Borrower has taken and proposes
to take with respect thereto.
(b) Annual Financials. As soon as available and in any event
within 120 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for the Borrower and its Subsidiaries, including therein a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the Required Lenders
of Deloitte &
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Touche LLP or other independent public accountants of recognized standing
acceptable to the Required Lenders, together with (i) a certificate of such
accounting firm to the Lender Parties stating that in the course of the regular
audit of the business of the Borrower and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement as to
the nature thereof, (ii) a schedule in form satisfactory to the Paying Agent of
the computations used by such accountants in determining, as of the end of such
Fiscal Year, compliance with the covenants contained in Section 5.04, provided
that in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of reconciliation
conforming such financial statements to GAAP and (iii) a certificate of the
Chief Financial Officer (or person performing similar functions) of the
Borrower stating that no Default has occurred and is continuing or, if a
default has occurred and is continuing, a statement as to the nature thereof
and the action that the Borrower has taken and proposes to take with respect
thereto.
(c) Quarterly Financials. As soon as available and in any
event within 60 days after the end of each of the first three quarters of each
Fiscal Year, a Consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries for
the period commencing at the end of the previous fiscal quarter and ending with
the end of such fiscal quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries for
the period commencing at the end of the previous Fiscal Year and ending with
the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
Fiscal Year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by the Chief Financial Officer (or person
performing similar functions) of the Borrower as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer stating
that no Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto and (ii) a
schedule in form satisfactory to the Paying Agent of the computations used by
the Borrower in determining compliance with the covenants contained in Section
5.04, provided that in the event of any change in GAAP used in the preparation
of such financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.
(d) Annual Business Plan. As soon as available and in any
event no later than 120 days after the end of each Fiscal Year, a Business
Plan.
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(e) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and proceedings before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, that (i) would be reasonably
expected to have a Material Adverse Effect or (ii) purports to effect the
legality, validity or enforceability of any Transaction Document or the
consummation of the Transaction, and promptly after the occurrence thereof,
notice of any material adverse change in the status or the financial effect on
any Loan Party or any of its Subsidiaries of the Disclosed Litigation from that
described on Schedule 4.01(f) hereto.
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports that
MLP or any Loan Party or any of its Subsidiaries sends to its stockholders,
partners or members, and copies of all regular, periodic and special reports,
and all registration statements, that MLP or any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any national
securities exchange.
(g) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly
and in any event within 10 days after any Loan Party or any ERISA Affiliate
knows or has reason to know that any ERISA Event has occurred, a statement of
the Chief Financial Officer (or person performing similar functions) of the
Borrower describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with respect
thereto and (B) on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information.
(ii) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) Plan Annual Reports. Promptly and in any event within
30 days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies
of each notice concerning (A) the imposition of Withdrawal Liability
by any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer
Plan
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or (C) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(h) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any material Environmental Action against or of
any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit.
(i) Year 2000 Compliance. Promptly after the Borrower's
discovery or determination thereof, notice (in reasonable detail) that any
computer application that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 Compliant (as defined in Section
4.01(y)), except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
(j) Available Cash. Within 60 days (or in the case of the
fourth fiscal quarter, 120 days) following the end of each fiscal quarter of
the Borrower, a report of Available Cash (as defined in the MLP Agreement),
cash reserves and other related items of the Borrower and its Subsidiaries in
form and substance satisfactory to the Paying Agent to be delivered at the same
time as the compliance certificate of the Borrower delivered pursuant to
Section 5.03(b) or (c), as the case may be.
(k) Coal and Mining Agreements. Promptly after the occurrence
thereof, notice of any material change to any coal sales agreement or contract,
contract mining agreement or coal purchase agreements to which the Borrower or
any of its Subsidiaries is a party.
(l) Rating Agency Reports. Promptly upon receipt thereof,
copies of any statement or report furnished by any rating agency to any Loan
Party or any of its Subsidiaries in connection with the Senior Notes.
(m) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as any
Agent, or any Lender Party through the Paying Agent, may from time to time
reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or
any other obligation of any Loan Party under any Loan Document shall remain
unpaid or any Lender Party shall have any Commitment hereunder, the Borrower
will:
(a) Consolidated Net Debt to Consolidated Cash Flow Ratio.
Maintain at all times from and after October 1, 1999, a Consolidated Net Debt
to Consolidated Cash Flow Ratio of not more than the amount set forth below for
each period set forth below:
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PERIOD RATIO
October 1, 1999 through 4.00:1.00
December 30, 1999
December 31, 1999 through 4.00:1.00
March 30, 2000
March 31, 2000 through 4.00:1.00
June 29, 2000
June 30, 2000 through 4.00:1.00
September 29, 2000
September 30, 2000 through 4.00:1.00
December 30, 2000
December 31, 2000 through 3.75:1.00
March 30, 2001
March 31, 2001 through 3.75:1.00
June 29, 2001
June 30, 2001 through 3.75:1.00
September 29, 2001
September 30, 2001 through 3.75:1.00
December 30, 2001
December 31, 2001 through 3.50:1.00
March 30, 2002
March 31, 2002 through 3.50:1.00
June 29, 2002
June 30, 2002 through 3.50:1.00
September 29, 2002
September 30, 2002 through 3.50:1.00
December 30, 2002
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December 31, 2002 through 3.50:1.00
March 30, 2003
March 31, 2003 through 3.50:1.00
June 29, 2003
June 30, 2003 through 3.50:1.00
September 29, 2003
September 30, 2003 through 3.50:1.00
December 31, 2003 through 3.50:1.00
March 30, 2004
March 31, 2004 through 3.50:1.00
June 30, 2004
June 31, 2004 and thereafter 3.50:1.00
(b) Maximum Asset Impairments and Incremental Long-term
Liabilities. Maintain at all times the sum of: (i) cumulative asset writedowns
and impairments plus (ii) the increase in the sum of accrued pneumoconiosis
benefits, workers compensation and reclamation and mine closing liabilities
associated with properties and assets that are owned by the Borrower and its
Restricted Subsidiaries as of the Effective Date of not more than $35,000,000.
(c) Interest Coverage Ratio. Maintain at all times from and
after October 1, 1999, an Interest Coverage Ratio of not less than the amount
set forth below for each period set forth below:
PERIOD RATIO
October 1, 1999 through 2.75:1.00
December 30, 1999
December 31, 1999 through 2.75:1.00
March 30, 2000
March 31, 2000 through 2.75:1.00
June 29, 2000
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June 30, 2000 through 2.75:1.00
September 29, 2000
September 30, 2000 through 2.75:1.00
December 30, 2000
December 31, 2000 through 2.75:1.00
March 30, 2001
March 31, 2001 through 2.75:1.00
June 29, 2001
June 30, 2001 through 2.75:1.00
September 29, 2001
September 30, 2001 through 2.75:1.00
December 30, 2001
December 31, 2001 through 3.00:1.00
March 30, 2002
March 31, 2002 through 3.00:1.00
June 29, 2002
June 30, 2002 through 3.00:1.00
September 29, 2002
September 30, 2002 through 3.00:1.00
December 30, 2002
December 31, 2002 through 3.00:1.00
March 30, 2003
March 31, 2003 through 3.00:1.00
June 29, 2003
June 30, 2003 through 3.00:1.00
September 29, 2003
September 30, 2003 through 3.00:1.00
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December 31, 2003 through 3.00:1.00
March 30, 2004
March 31, 2004 through 3.00:1.00
June 30, 2004
June 31, 2004 and thereafter 3.00:1.00
(d) Current Ratio. Maintain at all times a ratio of
Consolidated Current Assets to Consolidated Current Liabilities of the Borrower
and its Restricted Subsidiaries of at least 1.00:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower shall
fail to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause (ii)
within five Business Days after the same becomes due and payable; or
(b) any representation or warranty made in writing by any
Loan Party (or any of its officers) under or in connection with any Loan
Document (including, without limitation, in any certificate or financial
information delivered pursuant thereto) shall prove to have been incorrect in
any material respect when made or any financial projections prepared by or on
behalf of any Loan Party and made available to the Agents or any Lender Party
shall prove not to have been prepared in good faith based upon assumptions that
were reasonable at the time made and at the time made available to the Agents;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (e), 5.02, 5.03(a) or
5.04; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days after
the earlier of the date on which (i) a
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Responsible Officer becomes aware of such failure or (ii) written notice
thereof shall have been given to the Borrower by any Agent or any Lender Party;
or
(e) any Loan Party shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of any Debt of
such Loan Party or such Subsidiary (as the case may be) that is outstanding in
a principal amount (or, in the case of any Hedge Agreement, an Agreement Value)
of at least $10,000,000 either individually or in the aggregate (but excluding
Debt outstanding hereunder), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or required to
be prepaid or redeemed (other than by a regularly scheduled required prepayment
or redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) any Loan Party or either general partner of the Borrower
shall generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against any Loan Party or any general partner of the Borrower seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of 60 days or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall occur;
or any Loan Party or any of its Restricted Subsidiaries or any general partner
of the Borrower shall take any corporate action to authorize any of the actions
set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $10,000,000 shall be rendered
against any Loan Party and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be
any period of 60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect;
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provided, however, that any such judgment or order shall not be an Event of
Default under this Section 6.01(g) if and for so long as (i) the amount of such
judgment or order is covered by a valid and binding policy of insurance between
the defendant and the insurer covering payment thereof and (ii) such insurer,
which shall be rated at least "A" by A.M. Best Company at the time such
insurance policy is issued to such Loan Party, has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment or
order; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party that would reasonably be likely to have a Material
Adverse Effect, and there shall be any period of 60 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party party to it in any material
respect, or any such Loan Party shall so state in writing; or
(j) the Pledge Agreement shall for any reason (other than
pursuant to the terms thereof) cease to constitute a valid and perfected first
priority Lien on the Collateral purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such ERISA Event)
of the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then exist
(or the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $10,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Loan
Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the
date of such notification), exceeds $10,000,000 or requires payments exceeding
$2,500,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be
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increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $2,500,000; or
(o) the Borrower shall cancel or terminate or amend or
consent to or accept any cancellation or termination or amendment of the
Partnership Agreement or there shall be a cancellation, termination of, or any
amendment to, the MLP Agreement in any manner that has a material adverse
effect on (i) the business, operations, affairs, financial condition, assets or
properties of the Borrower and its Subsidiaries taken as a whole, (ii) the
rights and remedies of the Agents or the Lender Parties under the Loan
Documents, or (iii) the ability of the Loan Parties to perform their respective
payment and other material obligations under the Loan Documents; or
(p) an assertion shall be made by any Person in any court
proceeding or by any governmental authority or agency against any Loan Party or
any of its Subsidiaries, of any claims or liabilities, whether accrued,
absolute or contingent, based on or arising under any Environmental Law that is
reasonably likely to be determined adversely to such Loan Party or any of its
Subsidiaries, and the amount thereof (either individually or in the aggregate)
is reasonably likely to have a Material Adverse Effect (insofar as such amount
is payable by such Loan Party or any of its Subsidiaries but after deducting
any portion thereof that is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable therefor);
(q) commencing with any Fiscal Year ending after December 31,
1999, the Borrower shall fail to maintain a period of 30 consecutive days in
such Fiscal Year during which the average principal amount of Working Capital
Advances outstanding during such 30 day period does not exceed $5,000,000.
then, and in any such event, the Paying Agent (i) shall at the request, or may
with the consent, of the Required Lenders, by notice to the Borrower, declare
the Commitments of each Lender Party and the obligation of each Lender Party to
make Advances (other than Swing Line Advances by a Revolving Credit Lender
pursuant to Section 2.02(b)) to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Required Lenders, (A) by notice to the Borrower, declare the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that in the event of an actual or deemed entry of an order for relief with
respect to the Borrower under the Federal Bankruptcy Code, (x) the Commitments
of each Lender Party and the obligation of each Lender Party to make Advances
(other than Swing Line Advances by a Revolving Credit Lender pursuant to
Section 2.02(b)) shall automatically be terminated and (y) the Notes, all such
interest
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and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender and a Swing Line Bank (if applicable)) hereby
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), no Agent shall be
required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all other holders of
Notes; provided, however, that no Agent shall be required to take any action
that exposes such Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Agent agrees to give to each Lender Party
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Paying Agent, the Paying Agent receives and accepts an Assignment and
Acceptance entered into by the Lender Party that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, or, in the case of any other
Agent, such Agent has received notice from the Paying Agent that it has
received and accepted such Assignment and Acceptance, in each case as provided
in Section 8.07; (b) may consult with legal counsel (including counsel for any
Loan Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the
Loan Documents; (d) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of any Loan Party or to inspect the
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property (including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier) reasonably believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Chase, Citicorp and Affiliates. With respect to
its Commitments, the Advances made by it and the Notes issued to it, Chase and
Citicorp shall have the same rights and powers under the Loan Documents as any
other Lender Party and may exercise the same as though it were not an Agent;
and the term "Lender Party" or "Lender Parties" shall, unless otherwise
expressly indicated, include Chase and Citicorp in their respective individual
capacities. Chase and Citicorp and their respective affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of
business with, any Loan Party, any of its Subsidiaries and any Person that may
do business with or own securities of any Loan Party or any such Subsidiary,
all as if Chase and Citicorp were not Agents and without any duty to account
therefor to the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party
severally agrees to indemnify each Agent (to the extent not promptly reimbursed
by the Borrower) from and against such Lender Party's ratable share (determined
as provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents;
provided, however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct as found in a final, non-appealable judgment
by a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to
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reimburse each Agent promptly upon demand for its ratable share of any costs
and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 8.04, to the extent that such Agent is
not promptly reimbursed for such costs and expenses by the Borrower.
(b) For purposes of this Section 7.05, the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii) the
aggregate unused portions of their Term Commitments at such time, (iii) their
respective Unused Working Capital Commitments at such time and (iv) their
respective Unused Revolving Credit Commitments at such time; provided that the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments. The failure of
any Lender Party to reimburse any Agent promptly upon demand for its ratable
share of any amount required to be paid by the Lender Parties to such Agent as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Agent for its ratable share of such amount, but no
Lender Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent for such other Lender Party's ratable share of such
amount. Without prejudice to the survival of any other agreement of any Lender
Party hereunder, the agreement and obligations of each Lender Party contained
in this Section 7.05 shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign as to
any or all of the Facilities at any time by giving not less than 30 days' prior
written notice thereof to the Lender Parties and the Borrower and may be
removed as to all of the Facilities at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent as to such of the Facilities
as to which such Agent has resigned or been removed. If no successor Agent
with, so long as no Default shall have occurred and be continuing, the approval
of the Borrower (which approval shall not be unreasonably withheld or delayed)
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lender Parties, appoint a successor Agent
with, so long as no Default shall have occurred and be continuing, the approval
of the Borrower (which approval shall not be unreasonably withheld or delayed),
which successor Agent shall be a commercial bank organized under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent as to less than all of the Facilities and,
in the case of a successor Paying Agent, upon the execution and filing or
recording of such financing statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the
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Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Pledge Agreement, such successor
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents.
If within 45 days after written notice is given of the retiring Agent's
resignation or removal under this Section 7.06 no successor Agent shall have
been appointed and shall have accepted such appointment, then on such 45th day
(a) the retiring Agent's resignation or removal shall become effective, (b) the
retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents and (c) provided no Default has occurred and is
continuing, the Borrower may appoint a successor Agent or if no successor Agent
is appointed by the Borrower at such time, the Required Lenders shall
thereafter perform all duties of the retiring Agent under the Loan Documents
until such time, if any, as the Required Lenders appoint a successor Agent as
provided above. After any retiring Agent's resignation or removal hereunder as
Agent as to any or all of the Facilities shall have become effective, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent as to such Facilities
under this Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. Except as otherwise
contemplated by Section 8.07 and the Subsidiary Guaranty, no amendment or
waiver of any provision of this Agreement or the Notes or any other Loan
Document, nor consent to any departure by any Loan Party therefrom, shall in
any event be effective unless the same shall be in writing and signed (or, in
the case of the Pledge Agreement or the Subsidiary Guaranty, consented to) by
the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given;
provided, however, that (a) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders (other than any Lender Party that is,
at such time, a Defaulting Lender), do any of the following at any time: (i)
waive any of the conditions specified in Section 3.01 or, in the case of the
Initial Extension of Credit, Section 3.02, (ii) change the number of Lenders or
the percentage of (x) the Commitments or (y) the aggregate unpaid principal
amount of the Advances, (iii) reduce or limit the obligations of any Subsidiary
Guarantor under Section 1 of the Subsidiary Guaranty issued by it or release
such Subsidiary Guarantor or otherwise limit such Subsidiary Guarantor's
liability with respect to the obligations owing to the Agents and the Lender
Parties, or (iv) amend Section 2.12 or this Section 8.01, and (b) no amendment,
waiver or consent shall, unless in writing and signed by the Required Lenders
and each Lender (other than any Lender that is, at such time, a Defaulting
Lender) that has a Commitment under the Term Facility, Revolving Credit
Facility or Working Capital Facility if such Lender is directly affected by
such amendment, waiver or consent, (i) increase the Commitments of such Lender,
(ii) reduce the principal of, or interest on, the Notes held by such Lender or
any fees or other amounts payable hereunder to such Lender, (iii) postpone any
date fixed for any payment of principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such Lender, (iv)
change the order of application of any prepayment set forth in Section 2.05 in
any manner that materially affects such Lender, (v) other than as permitted
under the Pledge Agreement, release all or substantially all of the Collateral
in any transaction or series of related transactions or permit the creation,
incurrence, assumption or existence of any Lien on the Collateral in any
transaction or series of related transactions to secure any obligations other
than obligations owing to the Secured Parties under the Loan Documents;
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank in addition to the Lenders required above to
take such action, affect the rights or obligations of the Swing Line Bank under
this Agreement; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by an Agent in addition to the Lenders
required above to take such action, affect the rights or duties of such Agent
under this Agreement or the other Loan Documents.
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SECTION 8.02. Notices, Etc. Except as otherwise provided in
Section 2.02, all notices and other communications provided for hereunder shall
be in writing (including telecopy communication confirmed by mail or delivery)
and mailed, telecopied, or delivered, if to the Borrower, at its address at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇; if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender
Party; if to Chase as Paying Agent or Co-Administrative Agent, at its address
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇; and if to Citicorp
as Co-Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier (212) 583- 7185; or, as to any party, at such other telecopy number
or address as shall be designated by such party in a written notice to the
other parties. All such notices and other communications shall, when mailed,
telecopied or delivered, be effective when deposited in the mails, or
transmitted by telecopier, respectively, except that notices and communications
to any Agent pursuant to Article II, III or VII shall not be effective until
received by such Agent. Delivery by telecopier of an executed counterpart of
any amendment or waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender Party or any Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) all reasonable costs and expenses of each Agent, the Joint
Arrangers and their Affiliates in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents
(including, without limitation, (A) all reasonable due diligence, collateral
review, syndication, transportation, computer, duplication, appraisal, audit,
insurance, consultant, search, filing and recording fees and expenses and (B)
the reasonable fees and expenses of one firm of counsel to the Agents with
respect thereto, with respect to advising such Agents as to their rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating
in or monitoring any bankruptcy, insolvency or other similar proceeding
involving creditors' rights generally and any proceeding ancillary thereto) and
(ii) all costs and expenses of each Agent and each Lender Party in connection
with the enforcement of
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the Loan Documents after an Event of Default, whether in any action, suit or
litigation, or any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel for the Paying Agent and each Lender Party with respect
thereto). Notwithstanding anything to the contrary in the foregoing, the
Borrower will not be obligated to pay any allocated overhead costs of the
Agents, the Joint Arrangers, and their Affiliates.
(b) The Borrower agrees to indemnify, defend and save and
hold harmless SBHC, each Agent, each Joint Arranger, each Lender Party and each
of their Affiliates and their respective officers, directors, employees, agents
and advisors (each, an "INDEMNIFIED PARTY") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel, but
excluding allocated overhead cost of SBHC, the Agents, the Joint Arrangers and
the Lender Parties and their Affiliates) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Advances, the Transaction Documents or any of the transactions
contemplated thereby, or (ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence,
willful misconduct or unlawful acts. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party, whether or not any
Indemnified Party is otherwise a party thereto and whether or not the
Transaction is consummated. The Borrower also agrees not to assert any claim
against SBHC, any Agent, any Joint Arranger, any Lender Party or any of their
Affiliates, or any of their respective officers, directors, employees, agents
and advisors, on any theory of liability, for special, indirect, consequential
or punitive damages arising out of or otherwise relating to the Facilities, the
actual or proposed use of the proceeds of the Advances, the Transaction
Documents or any of the transactions contemplated by the Transaction Documents.
(c) (i) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such
Advance, as a result of (x) a payment or Conversion pursuant to Section 2.05,
2.08(b)(i) or 2.09(d), (y) acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
Party other than on the last day of the Interest Period for such Advance upon
an assignment of rights and obligations under this Agreement pursuant to
Section 8.07 as a result of a demand by the Borrower pursuant
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to Section 8.07(a), (z) if the Borrower fails to make any payment or prepayment
of an Advance for which a notice of prepayment has been given or that is
otherwise required to be made, whether pursuant to Section 2.03, 2.05 or 6.01
or otherwise, or (ii) the Borrower fails to fulfill the applicable conditions
set forth in Article III on or before the date specified in any Notice of
Borrowing for such Borrowing delivered pursuant to Section 2.02, the Borrower
shall, upon demand by such Lender Party (with a copy of such demand to the
Paying Agent), pay to the Paying Agent for the account of such Lender Party any
amounts required to compensate such Lender Party for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion or such failure to pay or prepay or borrow, as the case may be,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Lender Party to fund or maintain
such Advance, all of which losses, costs and expenses shall be an amount equal
to the excess, if any, of (A) the amount of interest that would have accrued on
the principal amount of such Advance had such event not occurred at the
Eurodollar Rate that would have been applicable to such Advance for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow or Convert, for the period
that would have been the Interest Period for such Loan), over (B) the amount of
interest that would accrue on such principal amount for such period at the
interest rate which such Lender would bid, were it to bid at the commencement
of such period, for dollar deposits of a comparable amount and period from
other banks in the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
Section, and the basis therefor, shall be delivered to the Borrower and shall
be conclusive and binding for all purposes, absent manifest error.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, reasonable fees and expenses of counsel and indemnities,
such amount may be paid on behalf of such Loan Party by the Paying Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements
and obligations of the Borrower contained in Sections 2.09 and 2.11 and this
Section 8.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Paying Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and otherwise apply any and
all deposits (general or special,
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time or demand, provisional or final) at any time held and other indebtedness
at any time owing by such Agent, such Lender Party or such Affiliate to or for
the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under the Loan Documents,
irrespective of whether such Agent or such Lender Party shall have made any
demand under this Agreement or such Note or Notes and although such obligations
may be unmatured. Each Agent and each Lender Party agrees promptly to notify
the Borrower after any such set-off and application; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Agent and each Lender Party and their
respective Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Agent, such Lender Party and their respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and each Agent and
the Paying Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrower, each Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Any Lender
(i) may (and in the case of clause (B) below, shall) assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it);
provided that (A) except, in the case of an assignment to an Eligible Assignee
that is an Affiliate of a Lender, each of the Borrower and the Paying Agent
must give their prior consent to such assignment (which consent shall not be
unreasonably withheld) and (B) if the assignment is demanded by the Borrower
pursuant to Section 2.16, no Event of Default shall have occurred and be
continuing at the time of such demand and such assignment and the Borrower
shall have given at least five Business Days' notice of such demand to the
applicable Lender and the Paying Agent; provided, however, that (i) each such
assignment shall be of a uniform, and not a varying, percentage of all rights
and obligations under and in respect of one or more of the Facilities, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an Affiliate of any Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the aggregate amount
of the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than the lesser of
$5,000,000 and 5% of the aggregate amount (or such lesser amount as shall be
approved by the Paying Agent and, so long as no Default shall have occurred and
be continuing at the time of effectiveness of such assignment, the Borrower) of
the Commitment being assigned, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by
the Borrower pursuant to Section 2.16 shall be arranged by the Borrower after
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consultation with the Paying Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of
the rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment (whether as a result of a
demand by the Borrower pursuant to Section 2.16 or otherwise) unless and until
such Lender shall have received one or more payments from either the Borrower
or one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement, and
(vi) the parties to each such assignment shall execute and deliver to the
Paying Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Note or Notes subject to such assignment and
a processing and recordation fee of $3,500; provided, however, the Borrower
shall have no liability for the payment of such fee except that for each such
assignment made as a result of a demand by the Borrower pursuant to Section
2.16, the Borrower shall pay to the Paying Agent the applicable processing and
recordation fee.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (ii) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under
Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an
event arising prior to such assignment) and be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each Lender Party assignor thereunder and each assignee thereunder confirm to
and agree with each other and the other parties thereto and hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any Lien created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any
Loan Party or the performance or observance by any Loan Party of any of its
obligations under any Loan
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Document or any other instrument or document furnished pursuant thereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon any Agent, such
assigning Lender Party or any other Lender Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v)
such assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Paying Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from
time to time (the "REGISTER"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Agents and the Lender Parties may treat each Person whose name is recorded in
the Register as a Lender Party hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower or any Agent or
any Lender Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Paying Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender,
within five Business Days after its receipt of such notice, the Borrower, at
its own expense, shall, if new Notes are requested by the applicable assignee
and/or assignor, execute and deliver to the Paying Agent in exchange for the
surrendered Note or Notes a new Note to the order of such Eligible Assignee in
an amount equal to the Commitment assumed by it under each Facility pursuant to
such Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or
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Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit ▇-▇, ▇-▇ or A-3 hereto,
as the case may be.
(f) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Agents and the other
Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or release any Subsidiary Guarantor or all or substantially all
of the Collateral.
(g) Any Lender Party may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender Party.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time pledge or assign all or any portion
of its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System; provided that no such pledge or assignment shall release a
Lender Party from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender Party as a party hereto.
SECTION 8.08. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall
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constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery
of an original executed counterpart of this Agreement.
SECTION 8.09. Confidentiality. Neither any Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to such Agent's or such Lender
Party's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
Federal or foreign authority or examiner regulating such Lender Party and (d)
to any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it
from such Lender Party.
SECTION 8.10. Release of Collateral. Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party in
accordance with the terms of the Loan Documents, the Collateral Agent will, at
the Borrower's expense, execute and deliver to such Loan Party such documents
as such Loan Party may reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted under the
Pledge Agreement in accordance with the terms of the Loan Documents.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York County, and
any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or any of the other Loan Documents to which it
is a party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the fullest extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of the
other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent
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permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 8.12. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 8.13. Non-Recourse to the General Partner and
Associated Persons. Upon the effectiveness of the Assumption Agreement, each
Agent and each Lender Party agrees on behalf of itself and its successors,
assigns and legal representatives, that neither the General Partner nor any
Person (other than the Loan Parties or the Special General Partner) which is a
partner, shareholder, member, owner, officer, director, supervisor, trustee or
other principal (collectively, "ASSOCIATED PERSONS") of the Borrower or of the
General Partner or of a Subsidiary Guarantor, or any of their respective
successors or assigns, shall have any personal liability for the payment or
performance of any of the Borrower s obligations hereunder or under any of the
Notes and no monetary or other judgment shall be sought or enforced against the
General Partner or any of such Associated Persons or any of their respective
successors or assigns. Notwithstanding the foregoing, neither any Agent nor any
Lender Party shall be deemed barred by this Section 8.13 from asserting any
claim against any Person based upon an allegation of fraud or
misrepresentation.
SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lender Parties irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the
Advances or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ALLIANCE RESOURCE GP, LLC
By: ALLIANCE RESOURCE HOLDINGS, INC.,
its sole member
By
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Title:
THE CHASE MANHATTAN BANK,
as Paying Agent and Co-Administrative
Agent
By
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Title:
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CITICORP USA, INC.,
as Co-Administrative Agent
By
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Title:
INITIAL LENDERS
THE CHASE MANHATTAN BANK
By
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Title:
SALOMON BROTHERS HOLDING
COMPANY INC.
By
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Title:
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SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
Working Revolving Domestic Eurodollar
Term Capital Credit Lending Lending
Name of Initial Lender Commitment Commitment Commitment Office Office