Exhibit 10.41
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of August 22, 2003 among ALLIANCE
RESOURCE OPERATING PARTNERS, L.P., a Delaware limited partnership (the
"BORROWER"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the Initial Lenders (the "INITIAL
LENDERS"), the banks listed on the signature pages hereof as the Initial Issuing
Banks (the "INITIAL ISSUING BANKS") and the Swing Line Bank (as hereinafter
defined and together with the Initial Lenders and the Initial Issuing Banks, the
"INITIAL LENDER PARTIES"), JPMORGAN CHASE BANK ("JPMORGAN"), as paying agent
(together with any successor paying agent appointed pursuant to Article VII, the
"PAYING AGENT"), and CITICORP USA, INC. ("CITICORP") and JPMorgan, 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), and Citigroup Global Markets Inc. and J.P. Morgan Securities, Inc., as
joint lead arrangers and joint bookrunners.
PRELIMINARY STATEMENT:
(1) On August 16, 1999, Alliance Resource GP, LLC
(together with its successors and permitted assigns as special general partner
of the Borrower, the "SPECIAL GENERAL PARTNER"), the special general partner of
the Borrower and of Alliance Resource Partners, L.P., a Delaware limited
partnership (the "MLP"), issued $180,000,000 of senior notes (the "SENIOR
NOTES") in a private placement pursuant to the Note Purchase Agreement (as
hereinafter defined). On that same date, the Borrower assumed the obligations of
the Special General Partner under the Note Purchase Agreement and under a
$100,000,000 credit agreement dated as of August 16, 1999 among the Special
General Partner, the banks, financial institutions and other institutional
lenders party thereto, the Paying Agent and the Co-Administrative Agents (the
"EXISTING FACILITY").
(2) The Borrower has requested that, upon the Effective
Date (as hereinafter defined), the Lender Parties make available to the Borrower
a credit facility of up to $85,000,000 to refinance certain Existing Debt (as
hereinafter defined) of the Borrower, including the Existing Facility, and to
pay transaction fees and expenses in connection herewith, and that, from time to
time, the Lender Parties lend to the Borrower and issue Letters of Credit for
the account of the Borrower, to provide working capital for the Borrower and its
Subsidiaries, to pay cash distributions to the holders of the MLP Units (as
hereinafter defined) and for other general business purposes of the Borrower and
its Subsidiaries (including, without limitation, acquisitions and capital
expenditures). The Lender Parties have indicated their willingness to agree to
lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 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 Moody's 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 Moody's 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 Moody's or an equivalent rating by any other credit rating
agency of recognized national standing.
"ADVANCE" means a Revolving Credit Advance, a Swing Line
Advance or a Letter of Credit 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. 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.
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"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 percentage per annum determined by
reference to the Consolidated Debt to Consolidated Cash Flow Ratio as
set forth below:
Consolidated Debt to
Consolidated Cash Flow Ratio Base Rate Advances Eurodollar Rate Advances
- ---------------------------- ------------------ ------------------------
Level I
2.50:1.0 or greater 0.75% 1.75%
Level II
1.75:1.0 or greater, 0.50% 1.50%
but less than 2.50:1.0
Level III
less than 1.75:1.0 0.25% 1.25%
The Applicable Margin for each Advance shall be determined by reference
to the Consolidated 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 I 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 percentage per annum
determined by reference to the Consolidated Debt to Consolidated Cash
Flow Ratio as set forth below:
Consolidated Debt to
Consolidated Cash Flow Ratio Applicable Percentage
- ----------------------------- ---------------------
Level I
2.50:1.0 or greater 0.50%
Level II
1.75:1.0 or greater, 0.40%
but less than 2.50:1.0
Level III
less than 1.75:1.0 0.35%
The Applicable Percentage shall be determined by reference to the
Consolidated 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 I 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)
the Revolving Credit Facility, a Lender that has a Commitment with
respect to such Facility at such time, (b) the Letter of Credit
Facility, (i) any Issuing Bank and (ii) to the extent the other Lenders
have made Letter of Credit Advances pursuant to Section 2.03(c) that
are outstanding at such time, each such other Lender, and (c) the Swing
Line Facility, (i) the Swing Line Bank and (ii) to the extent the
Lenders have made Swing Line Advances pursuant to Section 2.02(b) that
are outstanding at such time, each such other Lender.
"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.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"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
JPMorgan Chase 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 2.07(a)(i).
"BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower
maintained by the Borrower with JPMorgan at its office at 270 Park
Avenue, New York, New York 10017, Account No. 323138721, or such other
account as the Borrower shall specify in writing to the Paying Agent.
"BORROWING" means a Revolving Credit Borrowing or a Swing Line
Borrowing.
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"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 for the term of the Facilities
in form and scope reasonably 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; provided that, for
the avoidance of doubt, Capital Expenditures shall not include the
initial purchase price paid or incurred by any Person in respect of any
Asset Acquisition permitted by Section 5.02(d) hereof (including the
purchase price allocated or attributable to any equipment, fixed
assets, real property or improvements so acquired in connection with
such Asset Acquisition).
"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.
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"CASH DISTRIBUTION ADVANCE" means any Advance the proceeds of
which is used to make a cash distribution to holders of the MLP Units.
"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 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 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 Moody's or an
equivalent rating by any other credit rating agency of
recognized national standing; provided that such obligations
mature within one year from the date of acquisition thereof;
and
(e) commercial paper maturing in 270 days or less
from the date of issuance which, at the time of acquisition by
the Borrower or any Restricted Subsidiary, is rated A-l or
better by S&P or P1 or better by Moody's 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) the Management Investors 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 the sole or managing general partner of the MLP.
"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.
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"COMMITMENT" means a Revolving Credit Commitment, a Swing Line
Commitment or a Letter of Credit Commitment.
"CONFIDENTIAL INFORMATION" means information that any Loan
Party furnishes to any Agent or any Lender Party as confidential;
provided, however, that such term does not include any such information
that is or becomes generally available to the public or that is or
becomes available to such Agent or such Lender Party from a source
other than the Loan Parties (it being understood that except as set
forth in the proviso, all information that any Loan Party submits to
any Agent or any Lender Party is confidential).
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONSOLIDATED CASH FLOW" means, as of any date of
determination for any applicable period, the excess, if any, of (a) the
sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (i) Consolidated Net Income for such
period, plus (ii) to the extent deducted in the determination of
Consolidated Net Income for such period, without duplication, (A)
Consolidated Non-Cash Charges, (B) Consolidated Interest Expense and
(C) Consolidated Income Tax Expense, over (b) the sum of, without
duplication, the amounts for such period, taken as a single accounting
period, of (i) 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) and (ii)
any cash charges for such period to the extent that such charges
constituted non-cash items for a previous period and to the extent such
charges are not otherwise included in the determination of Consolidated
Net Income; 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 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.
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"CONSOLIDATED DEBT TO CONSOLIDATED CASH FLOW RATIO" means, at
any date of determination, the ratio of Consolidated 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.
"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 any date of
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.
"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:
(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,
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(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,
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.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07(d), 2.09 or 2.10.
"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;
(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);
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(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, unemployment insurance or reclamation
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
2.15(a), the remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made 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) any Issuing Bank pursuant to Section
2.03(c) to purchase a portion of the Letter of Credit Advances made
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by such Issuing Bank, (c) 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, (d) any other Lender
Party pursuant to Section 2.13 to purchase any participation in
Advances owing to such other Lender Party and (e) any Agent or any
Issuing Bank pursuant to Section 7.05 to reimburse such Agent or such
Issuing Bank for such Lender Party's ratable share of any amount
required to be paid by the Lender Parties to such Agent or such Issuing
Bank as provided therein. In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.15(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(e).
"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 been satisfied.
"ELIGIBLE ASSIGNEE" means (a) with respect to any Facility
(other than the Letter of Credit Facility) (i) a Lender; (ii) an
Affiliate of a Lender Party that qualifies under clause (iii), (iv),
(v), or (vi) of this clause (a); (iii) 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; (iv) a commercial bank
organized under the laws of any other country that 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; (v)
the central bank of any country that is a member of the OECD; or (vi)
any other financial institution or Person approved by the Paying Agent
and, unless a Default has occurred and is continuing at the time any
assignment is effected pursuant to Section 8.07, the Borrower (which
approvals shall not be unreasonably withheld or delayed) and (b) with
respect to the Letter of Credit Facility, a Person that is an Eligible
Assignee under subclause (iii) or (iv) of clause (a) of this definition
and is 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, such approval not to be unreasonably
withheld or delayed; provided, however, that neither any Loan Party nor
any Affiliate of a Loan Party, nor any competitor, or Affiliate
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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.
"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.
"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;
12
(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, 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
2.07.
13
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as provided in Section 2.07(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.
"EXISTING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before the occurrence of the
Effective Date.
"EXISTING FACILITY" has the meaning specified in Preliminary
Statement (1).
"EXISTING ISSUING BANK" means Bank of Oklahoma, N.A., in its
capacity as an "Issuing Bank" under the Existing L/C Agreement.
"EXISTING L/C AGREEMENT" has the meaning specified in Section
2.03(f).
"EXISTING LETTERS OF CREDIT" has the meaning specified in
Section 2.03(f).
"FACILITY" means the Revolving Credit Facility, the Swing Line
Facility or the Letter of Credit Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum for each day during such period equal to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, 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 16, 2003 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.
14
"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.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state, province, city, municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether
federal, state, provincial, territorial, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization,
approval, consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification
or registration with, any Governmental Authority.
"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, 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,
15
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 COSTS" has the meaning specified in Section
7.05(a).
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INFORMATION MEMORANDUM" means the information memorandum
dated July 21, 2003 used by the Joint Arrangers in connection with the
syndication of the Commitments.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"INITIAL ISSUING BANKS" has the meaning specified in the
recital of parties to this Agreement.
"INITIAL LENDER PARTIES" has the meaning specified in the
recital of parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTERCREDITOR AGREEMENT" has the meaning specified in Section
3.01(a)(xv).
"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.
"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
16
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 Termination 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, 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.
"ISSUING BANKS" means each Initial Issuing Bank, any other
Lender approved as an Issuing Bank by the Paying Agent and any Eligible
Assignee to which a Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.07 so long as each such Lender or each
such Eligible Assignee expressly agrees to 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 an Issuing Bank and notifies the
Paying Agent of its Applicable Lending Office and the amount of its
Letter of Credit Commitment (which information shall be recorded by the
Paying Agent in the Register) pursuant to, in the case of a Lender, an
agreement in form and substance satisfactory to the Paying Agent and,
in the case of an Eligible Assignee, an Assignment and Acceptance
substantially in the form of Exhibit C hereto, for so long as such
Initial Issuing Bank, Lender or Eligible Assignee, as the case may be,
shall have a Letter of Credit Commitment.
"JOINT ARRANGERS" means Citigroup Global Markets Inc. and J.P.
Morgan Securities, Inc. and/or their respective Affiliates.
17
"JPMORGAN" has the meaning specified in the recital of parties
to this Agreement.
"L/C DISBURSEMENT" shall mean a payment or disbursement made
by any Issuing Bank pursuant to a Letter of Credit.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(c)(ii).
"LENDER PARTY" means any Lender, any Issuing Bank 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.
"LETTERS OF CREDIT" has the meaning specified in Section
2.01(c).
"LETTER OF CREDIT ADVANCE" means an advance made by any
Issuing Bank or any Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to any
Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into an Assignment and
Acceptance, set forth for such Issuing Bank in the Register maintained
by the Paying Agent pursuant to Section 8.07(d) as such Issuing Bank's
"Letter of Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time and (b) $30,000,000, as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"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 nor any royalty interest or overriding royalty interest under
any lease, sublease or other similar agreement entered into in the
ordinary course of business.
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c)
the Subsidiary Guaranty, (d) the Fee Letter, (e) the Intercreditor
Agreement and (f) each Letter of Credit Agreement, in each case as
amended.
"LOAN PARTIES" means the Borrower and the Subsidiary
Guarantors.
18
"MANAGEMENT INVESTORS" means any of Alliance Management
Holdings, LLC and/or AMH II, LLC, including the management, officers
and/or directors who are shareholders and/or members of any of the
foregoing.
"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 the MLP, as amended after the date hereof, to
the extent permitted under the Loan Documents.
"MLP UNITS" means the common units of the MLP.
"MOODY'S" means Moody's 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.
"NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances, Letter of Credit Advances
and Swing Line Advances made by such Lender, as amended.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement
dated as of August 16, 1999 among the Borrower (as assignee of the
Special General Partner) and
19
the purchasers of the Senior Notes, pursuant to which the Senior Notes
were issued, as amended after the date hereof, to the extent permitted
under the Loan Documents.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section
2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(c).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(c).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, as used in the Notes, the Solvency
Certificates and the Subsidiary Guaranty, with respect to any Loan
Party, any payment, performance or other obligation of such Loan Party
of any kind under the Loan Documents, including, without limitation,
any liability of such Loan Party on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, absolute or contingent,
direct or indirect, matured, disputed, undisputed, legal, equitable,
secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section
6.01(f), including without limitation, (a) the obligation to pay
principal, interest, Letter of Credit commissions, 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(p)(ii).
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PARTNERSHIP AGREEMENT" means the partnership agreement of the
Borrower, as 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 JPMorgan at its office at 270 Park
Avenue, New York, New York 10017, Account No. 323138721, or such other
account as the Paying Agent shall specify in writing to the Lender
Parties.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
20
"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;
(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,
21
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.
"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.
"PRO RATA SHARE" of any amount means, with respect to any
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 2.05 or 6.01, such Lender's Revolving
Credit Commitment as in effect immediately prior to such termination)
and the denominator of which is the Revolving Credit Facility at such
time (or, if the Commitments shall have been terminated pursuant to
Section 2.05 or 6.01, the Revolving Credit Facility as in effect
immediately prior to such termination).
"REFERENCE BANKS" means Citicorp, JPMorgan and US Bank
National Association.
"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 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
22
(c) in connection with which 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 Available Amount of all Letters of Credit outstanding at such
time and (c) 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) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit outstanding at such
time and (C) 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 and of
Letter of Credit Advances owing to any Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the
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(a).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any
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
23
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 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SECURITY" has the meaning set forth in Section 2(a)(1) of the
Securities Act.
"SENIOR NOTES" has the meaning specified in Preliminary
Statement (1).
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"SOLVENCY CERTIFICATE" has the meaning set forth in Section
3.01(a)(ix).
"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" has the meaning specified in
Preliminary Statement (1).
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"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
24
of whether at the time Capital Stock of any other class or classes of
such corporation shall or might have voting power upon the occurrence
of any contingency), (b) the interests in the capital or profits of
such partnership, limited liability company, joint venture or
association with ordinary voting power to elect a majority of the board
of directors (or persons performing similar functions) of such
partnership, limited liability company, joint venture or association,
or (c) the beneficial interests in such trust or other entity with
ordinary voting power to elect a majority of the board of trustees (or
persons performing similar functions) of such trust or other entity, is
at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its Subsidiaries, or by one or more
of such Person's other Subsidiaries.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the Borrower
listed on Schedule II hereto and each other Restricted Subsidiary of
the Borrower that shall be required to execute and deliver a guaranty
pursuant to Section 5.01(i).
"SUBSIDIARY GUARANTY" has the meaning specified in Section
3.01(a)(ii).
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the Initial Extension of Credit.
"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(b) or (b) any Lender pursuant to
Section 2.02(b).
"SWING LINE BANK" means JPMorgan.
"SWING LINE BORROWING" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank pursuant to Section 2.01(b) or
the 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(b), as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"SWING LINE FACILITY" has the meaning specified in Section
2.01(b).
"TAXES" has the meaning specified in Section 2.12(a).
25
"TERMINATION DATE" means the earlier of September 30, 2006 and
the date of termination in whole of the Revolving Credit Commitments,
the Letter of Credit Commitment and the Swing Line Commitment pursuant
to Section 2.05 or 6.01.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of Inventory or raw materials or supplies (including, without
limitation, fuel, spare parts or other materials used in connection
with the operation of the business of the Borrower and its
Subsidiaries) to the Borrower or any of its Subsidiaries to effect
payment for such Inventory or raw materials or supplies.
"TRANSACTION" means the refinancing in full of the Existing
Facility and the making of the Advances and the issuance of the Letters
of Credit under this Agreement.
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Related Documents.
"TRANSFER" means, with respect to any Person, any transaction
in which such Person sells, conveys, abandons, transfers, leases (as
lessor), or otherwise disposes of any of its assets; provided, however,
that "Transfer" shall not include (a) the granting of any Liens
permitted to be granted pursuant to this Agreement, (b) any transfer of
assets permitted pursuant to Section 5.02(d), (c) the making of any
Restricted Payment permitted pursuant to Section 5.02(g) or (d) the
making of any Investments permitted pursuant to Section 5.02(f).
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNITED STATES GOVERNMENTAL SECURITY" means any direct
obligation of, or obligation guaranteed by, the United States of
America, or any agency controlled or supervised by or acting as an
instrumentality of the United States of America pursuant to authority
granted by the Congress of the United States of America, so long as
such obligation or guarantee shall have the benefit of the full faith
and credit of the United States 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 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, Swing Line Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender and not as
the Swing Line Bank or an Issuing Bank) and outstanding at such time
plus (ii) such Lender's Pro Rata Share of (A) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (B) the
aggregate principal amount of all Letters of Credit Advances made by
the Issuing Banks pursuant to Section 2.03(c) and outstanding at such
time and (C) the aggregate principal amount of all Swing Line
26
Advances made by the Swing Line Bank pursuant to Section 2.01(d) and
outstanding at such time.
"VOTING STOCK" means, (i) Securities of any class of classes,
the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the directors (or persons performing
similar functions) or (ii) in the case of a partnership, limited
liability company or joint venture, interests in the profits or capital
thereof entitling the holders of such interests to approve major
business actions.
"WHOLLY OWNED" means, at any time, with respect to any
Subsidiary of any Person, a Subsidiary of which at least ninety-eight
percent (98%) of all of the equity interests (except directors'
qualifying shares) and Voting Stock are owned by any one or more of
such Person and such Person's other Wholly Owned Subsidiaries at such
time.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in effect from time to time ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit . (a) The
Revolving Credit Advances. Each 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 Effective Date 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 the case of Base Rate Advances, a Borrowing the proceeds of
which shall be used solely to repay or prepay in full outstanding Swing Line
Advances or outstanding Letter of Credit Advances, in which case such Base Rate
Advances may be in an aggregate amount necessary to repay or prepay in full such
Swing Line Advances or Letter of Credit Advances) and shall consist of Revolving
Credit Advances made simultaneously by the Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Lender's Unused
Revolving Credit Commitment in
27
effect from time to time, the Borrower may borrow under this Section 2.01(a),
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(a).
(b) 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 Effective Date 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 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(b), repay
pursuant to Section 2.04(b) or prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(b).
(c) The Letters of Credit. Each Issuing Bank severally
agrees, on the terms and conditions hereinafter set forth, to issue (or cause
its Affiliate that is a commercial bank to issue on its behalf) letters of
credit (together with the Existing Letters of Credit referred to in Section
2.03(f), the "LETTERS OF CREDIT") in U.S. dollars for the account of the
Borrower (but in connection with the business of the Borrower or any of its
Subsidiaries) from time to time on any Business Day during the period from the
Effective Date until 30 days before the Termination Date in an aggregate
Available Amount (i) for all Letters of Credit not to exceed at any time the
Letter of Credit Facility at such time and (ii) for all Letters of Credit issued
by such Issuing Bank not to exceed at any time such Issuing Bank's Letter of
Credit Commitment at such time and (iii) for each such Letter of Credit not to
exceed the Unused Revolving Credit Commitments of the Lenders at such time. No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the earlier of 30
days before the Termination Date and (A) in the case of a Standby Letter of
Credit, one year after the date of issuance thereof, but may by its terms be
renewable annually upon notice (a "NOTICE OF RENEWAL") given to the Issuing Bank
that issued such Standby Letter of Credit and the Paying Agent on or prior to
any date for notice of renewal set forth in such Letter of Credit but in any
event at least three Business Days prior to the date of the proposed renewal of
such Standby Letter of Credit and upon fulfillment of the applicable conditions
set forth in Article III unless such Issuing Bank has notified the Borrower
(with a copy to the Paying Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event at least 45
Business Days prior to the date of automatic renewal of its election not to
renew such Standby Letter of Credit (a "NOTICE OF TERMINATION") and (B) in the
case of a Trade Letter of Credit, 30 days after the date of issuance thereof;
provided that the terms of each Standby Letter of Credit that is automatically
renewable annually shall (x) require the Issuing Bank that issued such Standby
Letter of Credit to give the beneficiary named in such Standby Letter of Credit
notice of any Notice of Termination, (y) permit such beneficiary, upon receipt
of such notice, to draw under such Standby Letter of Credit prior to the date
such Standby Letter of Credit otherwise would have been automatically renewed
and (z) not permit the expiration date (after giving effect to any renewal) of
such Standby Letter of Credit in any event to be extended to a date later than
30 days before the Termination Date. If either a Notice of Renewal is not given
by the Borrower
28
or a Notice of Termination is given by the relevant Issuing Bank pursuant to the
immediately preceding sentence, such Standby Letter of Credit shall expire on
the date on which it otherwise would have been automatically renewed; provided,
however, that even in the absence of receipt of a Notice of Renewal the relevant
Issuing Bank may in its discretion, unless instructed to the contrary by the
Paying Agent or the Borrower, deem that a Notice of Renewal had been timely
delivered and in such case, a Notice of Renewal shall be deemed to have been so
delivered for all purposes under this Agreement. Within the limits of the Letter
of Credit Facility, and subject to the limits referred to above, the Borrower
may request the issuance of Letters of Credit under this Section 2.01(c), repay
any Letter of Credit Advances resulting from drawings thereunder pursuant to
Section 2.03(c) and request the issuance of additional Letters of Credit under
this Section 2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or Section 2.03, 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) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, (iv) if the proceeds of such Borrowing will be used to fund cash
distributions to the holders of the MLP Units, aggregate amount of such
Borrowing to be so used and aggregate amount of Cash Distribution Advances
outstanding immediately prior to such Borrowing to the extent such Advances have
not been prepaid prior to such time pursuant to Section 2.06(a) 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 and Letter of Credit Advances made by the Swing Line Bank or any
Issuing Bank, as the case may be, and by any other Lender and outstanding on the
date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or such Issuing
Bank, as the case may be, and such other Lenders for repayment of such Swing
Line Advances and Letter of Credit 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,
29
(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 of the requested Swing
Line Advances 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 Lender shall purchase from the Swing Line Bank,
and the Swing Line Bank shall sell and assign to each such other 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 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 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 Lender shall
not have so made the amount of such Swing Line Advance available to the Paying
Agent, such Lender agrees to pay to the Paying Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Swing Line Bank until the date such amount is paid to the Paying Agent, at
the Federal Funds Rate. If such Lender shall pay to the Paying Agent such amount
for the account of the Swing Line Bank on any Business Day, such amount so paid
in respect of principal shall constitute a Swing Line Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $5,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.07(d)(ii), Section 2.09(b)(iii) or Section 2.10(c) or (d) and (ii) 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 each 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
30
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 2.07 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. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 12:00 noon (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the Paying
Agent and each Lender prompt notice thereof by telecopier or electronic
communication. Each such notice of issuance of a Letter of Credit (a "NOTICE OF
ISSUANCE") shall be by telephone, confirmed immediately in writing, or
telecopier or electronic communication, specifying therein the requested (A)
name of the Issuing Bank, (B) date of such issuance (which shall be a Business
Day), (C) Available Amount of such Letter of Credit, (D) expiration date of such
Letter of Credit, (E) name and address of the beneficiary of such Letter of
Credit and (F) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as such Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a
"LETTER OF CREDIT AGREEMENT"); provided that such Letter of Credit Agreement
shall be subject to the provisions of Section 2.08). If (x) the requested form
of such Letter of Credit is acceptable to such Issuing Bank in its reasonable
sole discretion and (y) it has not received notice of a good faith objection to
such issuance from the Required Lenders, such Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in Section
8.02 or as otherwise agreed with the Borrower in connection with such issuance.
In the event and to the extent that the provisions of any Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall
furnish (A) to the Paying Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued by
such Issuing Bank during the previous week and drawings during such week under
all Letters of Credit issued by such Issuing Bank, (B) to each Lender on the
first Business Day of each month a written report summarizing issuance and
31
expiration dates of Letters of Credit issued by such Issuing Bank during the
preceding month and drawings during such month under all Letters of Credit
issued by such Issuing Bank and (C) to the Paying Agent and each Lender on the
first Business Day of each calendar quarter a written report setting forth the
average daily aggregate Available Amount during the preceding calendar quarter
of all Letters of Credit issued by such Issuing Bank. A copy of each such report
delivered pursuant to this clause (b) shall be delivered to the Borrower upon
request by the Borrower.
(c) Participations in Letters of Credit. Upon the
issuance of a Letter of Credit by any Issuing Bank under Section 2.03(a), such
Issuing Bank shall be deemed, without further action by any party hereto, to
have sold to each Lender, and each such Lender shall be deemed, without further
action by any party hereto, to have purchased from such Issuing Bank, a
participation in such Letter of Credit in an amount for each Lender equal to
such Lender's Pro Rata Share of the Available Amount of such Letter of Credit,
effective upon the issuance of such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay such Lender's Pro Rata Share of each L/C Disbursement made by such
Issuing Bank and not reimbursed by the Borrower forthwith on the date due as
provided in Section 2.04(c) on demand by the Paying Agent by making available
for the account of its Applicable Lending Office to the Paying Agent for the
account of such Issuing Bank by deposit to the Paying Agent's Account, in same
day funds, an amount equal to such Lender's Pro Rata Share of such L/C
Disbursement. The Paying Agent will promptly thereafter cause like funds to be
distributed to the applicable Issuing Bank for the account of its Applicable
Lending Office. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this Section 2.03(c) in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default or the termination of the Commitments, and that each such
payment shall be made without any off-set, abatement, withholding or reduction
whatsoever. If and to the extent that any Lender shall not have so made the
amount of such L/C Disbursement available to the Paying Agent, such Lender
agrees to pay to the Paying Agent forthwith on demand such amount together with
interest thereon, for each day from the date such L/C Disbursement is due
pursuant to Section 2.04(c) until the date such amount is paid to the Paying
Agent, at the Federal Funds Rate for its account or the account of such Issuing
Bank, as applicable. If such Lender shall pay to the Paying Agent such amount
for the account of such Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by such Issuing Bank shall
be reduced by such amount on such Business Day.
(d) Drawing and Reimbursement. The payment by any Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by such Issuing Bank of a Letter of Credit
Advance, which shall be a Base Rate Advance, in the amount of such draft. The
Issuing Bank shall promptly notify the Paying Agent of any such payment.
(e) Failure to Make Letter of Credit Advances. The
failure of any Lender to make the Letter of Credit Advance to be made by it on
the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on
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such date, but no Lender shall be responsible for the failure of any other
Lender to make the Letter of Credit Advance to be made by such other Lender on
such date.
(f) Existing Letters of Credit. As of the Effective Date,
(i) the "Letters of Credit" issued by the Existing Issuing Bank, for the account
of the MLP pursuant to the Letter of Credit Facility Agreement, dated as of June
29, 2001, between the MLP and Bank of Oklahoma, N.A., as amended (the "EXISTING
L/C AGREEMENT") (such "Letters of Credit" as are outstanding thereunder on the
date hereof and set forth on Schedule III hereto being the "EXISTING LETTERS OF
CREDIT"), will be deemed to be Letters of Credit issued hereunder for the
account of the Borrower, (ii) the Existing Letters of Credit will no longer be
Obligations outstanding under such Existing L/C Agreement and (iii) the Existing
Issuing Bank will be deemed to have sold and transferred an undivided interest
and participation in respect of the Existing Letters of Credit issued by it and
each Appropriate Lender hereunder will be deemed to have purchased and received,
without further action on the part of any party, an undivided interest and
participation in such Existing Letters of Credit, based on such Lender's Pro
Rata Share of the aggregate Available Amount of all Letters of Credit
outstanding at such time.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit
Advances. The Borrower shall repay to the Paying Agent for the ratable account
of the Lenders on the Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay to the
Paying Agent for the account of the Swing Line Bank and each other 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.
(c) Letter of Credit Advances. (i) The Borrower shall
repay to the Paying Agent for the account of each Issuing Bank and each other
Lender that has made a Letter of Credit Advance on the earlier of demand and the
Termination Date the outstanding principal amount of each Letter of Credit
Advance made by each of them (it being understood and agreed that, subject to
the satisfaction of the other provisions of this Agreement, a Letter of Credit
Advance may be repaid prior to the Termination Date with the proceeds of a new
Borrowing).
(ii) The Obligations of the Borrower under this Agreement,
any Letter of Credit Agreement and any other agreement or instrument relating to
any Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C RELATED DOCUMENTS");
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(B) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations of any Loan
Party in respect of any L/C Related Document or any other amendment or
waiver of or any consent to departure from all or any of the L/C
Related Documents;
(C) the existence of any claim, set-off, defense or other
right that any Loan Party may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for which any
such beneficiary or any such transferee may be acting), any Issuing
Bank or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft, certificate or other document that
does not strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from the Guaranties or any other guarantee, for all or any of
the Obligations of any Loan Party in respect of the L/C Related
Documents; or
(G) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. 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 portion of the
Swing Line Facility and the Letter of Credit Facility 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 in the case of the Swing
Line Facility, $2,000,000) or an integral multiple of $1,000,000 (or in the case
of the Swing Line Facility, $500,000) 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) The Letter of Credit 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 Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
(ii) 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.
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SECTION 2.06. 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 prepayment date, aggregate
principal amount of the prepayment and the amount of such prepayment, if any, to
be allocated to prepayment of Cash Distribution Advances then outstanding, 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).
(b) Mandatory. (i) The Borrower shall, on each Business
Day, prepay an aggregate principal amount of the Revolving Credit Advances
comprising part of the same Borrowings, the Letter of Credit Advances 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, (y) the Letter
of Credit Advances and (z) the Swing Line Advances then outstanding plus the
aggregate Available Amount of all Letters of Credit then outstanding exceeds (B)
the Revolving Credit Facility on such Business Day.
(ii) Prepayments of the Revolving Credit Facility made
pursuant to clause (i) shall be first applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full, second applied
to prepay Swing Line Advances then outstanding until such Advances are paid in
full and third applied to prepay Revolving Credit Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full.
(iii) 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.
(iv) All prepayments under this subsection (b) shall be
made together with accrued interest to the date of such prepayment on the
principal amount prepaid, together with any amounts owing pursuant to Section
8.04(c).
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (A) the Base Rate in effect from time to time plus (B) the
Applicable Margin in effect from time to time, which ratio shall be
determined in accordance with the definition of that term, payable in
arrears quarterly on the last day of each fiscal quarter during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
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(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 ("DEFAULT
INTEREST") on (i) the unpaid principal amount of each Advance owing to each
Lender Party, 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; provided, however, that following the acceleration of the
Advances, or the giving of notice by the Paying Agent to accelerate the
Advances, pursuant to Section 6.01, Default Interest shall accrue and be payable
hereunder.
(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 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the Paying
Agent shall give notice to the Borrower and each Appropriate Lender of the
applicable Interest Period and the applicable interest rate determined by the
Paying Agent for purposes of clause (a)(i) or (a)(ii) above, and the applicable
rate, if any, furnished by each Reference Bank at the Borrower s request for the
purpose of determining the applicable interest rate under clause (a)(ii) above.
(d) Interest Rate Determination. (i) In the event that
the Borrower requests, in accordance with the definition of "Eurodollar Rate",
that the Eurodollar Rate be based on interest rate quotes received from the
Reference Banks, each Reference Bank agrees to furnish to the Paying Agent
timely information for the purpose of determining each Eurodollar Rate. If any
one or more of the Reference Banks shall not furnish such timely information to
the Paying Agent for the purpose of determining any such interest rate, the
Paying Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish
timely information to the Paying Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances and the Eurodollar Rate cannot otherwise be
determined in accordance with clause (b) of the definition of "Eurodollar Rate",
the Paying Agent shall forthwith notify the Borrower and the
36
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 2.08. 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, payable in arrears
on the date of the initial Borrowing hereunder, thereafter quarterly on the last
day of each fiscal quarter, commencing with the fiscal quarter ending at
September 30, 2003, and on the Termination Date, at a percentage per annum equal
to the Applicable Percentage at such time 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; 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) Letter of Credit Fees, Etc. (i) The Borrower shall
pay to the Agent for the account of each Lender a commission, payable in arrears
quarterly, within 15 days after each March 31, June 30, September 30 and
December 31, commencing September 30, 2003 and on the earliest to occur of the
full drawing, expiration, termination or cancellation of any Letter of Credit
and on the Termination Date, on such Lender's Pro Rata Share of the average
daily aggregate Available Amount during such quarter of all Letters of Credit
outstanding from time to time at a percentage per annum equal to the Applicable
Margin for Eurodollar Rate Advances at such time. Upon the occurrence and during
the continuance of a Default under Section 6.01(a) or 6.01(f) or an Event of
Default, the amount of commission payable by the Borrower under this clause
(b)(i) shall be increased by 2% per annum.
(ii) The Borrower shall pay to each Issuing Bank, for its
own account, a fronting fee, payable in arrears quarterly, within 15 days after
each March 31, June 30, September 30 and December 31, commencing September 30,
2003 and on the earliest to occur of the full drawing, expiration, termination
or cancellation of any Letter of Credit and on the Termination Date, on the
average daily aggregate Available Amount during such quarter of all Letters of
Credit outstanding from time to time at a percentage per annum equal to 0.125%.
(iii) The Borrower shall pay to each Issuing Bank, for its
own account, such other commissions and issuance fees, and such customary
transfer fees, amendment fees and other fees and charges in connection with the
issuance or administration of each Letter of Credit issued by such Issuing Bank,
including the administration of each Letter of Credit Agreement, as
37
the Borrower and such Issuing Bank shall agree; provided that the fees of the
type contemplated by clause (i) and (ii) of this Section 2.08(b) shall be
exclusive of any similar fee that would otherwise be required to be paid under
any such Letter of Credit Agreement.
(c) 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 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Paying Agent not
later than 12:00 noon (New York City time) on the third Business Day prior to
the date of the proposed Conversion or continuation, in the case of the
Conversion or continuation of any Advances into or as Eurodollar Rate Advances,
and on the same Business Day, in the case of the Conversion of any Advances into
Base Rate Advances, and subject, in each case, to the provisions of Sections
2.07 and 2.10, 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,
38
or to Convert Advances into or to continue Eurodollar Rate Advances as,
Eurodollar Rate Advances shall be suspended during such continuance.
SECTION 2.10. 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 or of agreeing to issue or of issuing or maintaining or participating
in Letters of Credit or of agreeing to make or of making or maintaining Letter
of Credit Advances (excluding, for purposes of this Section 2.10, any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section
2.12 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 or to issue or participate in Letters of Credit hereunder and
other commitments of such type or the issuance or maintenance of or
participation in any Letters of Credit (or similar contingent obligations),
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 or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit. 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
39
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 2.11. 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 2.15), 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 Lender of any Swing Line Advance pursuant to Section 2.02(b),
from and after the effective date of such Assignment and Acceptance or purchase,
as the case may be, the Paying Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned or purchased thereby to the Lender
Party assignee or purchaser thereunder, and, in the case of an Assignment and
Acceptance, the parties to any such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and
each of its Affiliates, if and to the extent payment owed to such Lender Party
is not made when due hereunder (after giving effect to any period of grace) or,
in the case of a Lender, under the Note held by such Lender, to charge from time
to time, to the fullest extent permitted by law, against
40
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 and Letters of Credit commissions 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, fees or commissions are
payable. Each determination by the Paying Agent of an interest rate, fee or
commission 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 or
letter of credit fee or commission, 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 Pro Rata Share of the sum of (i) the aggregate principal amount
of all Advances outstanding at such time and (ii) the aggregate Available Amount
of all Letters of Credit then due and payable at such time, in repayment or
prepayment of such of the outstanding Advances or other Obligations then owing
to such Lender Party and shall return any unused funds to the Borrower.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
to or for the account of any Lender Party or any Agent hereunder or under the
Notes or any other Loan Document shall be made, in accordance with Section 2.11
or the applicable provisions of such other Loan Document, if any, 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
41
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 or any other Loan Document 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 2.12) 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 by the Borrower hereunder or under any Notes or
any other Loan Document or from the execution, delivery or registration of,
performance under, or otherwise with respect to, this Agreement, the Notes or
other Loan Documents (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 2.12, imposed on or paid by such Lender
Party or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender Party or such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Paying Agent, at its address referred
to in Section 8.02, the original or a certified copy of a receipt evidencing
such payment, to the extent such a receipt is issued therefor, or other written
proof of payment thereof that is reasonably satisfactory to the Paying Agent. In
the case of any payment hereunder or under the Notes or the other Loan Documents
by or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of a 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 2.12, the terms "UNITED STATES" and
"UNITED STATES PERSON" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
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(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
Party 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 reasonably requested in writing by the Borrower or promptly
upon a change in any material fact disclosed on the applicable form or
certificate (but, in either case, 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 signed and complete Internal Revenue Service Forms
W-8BEN or W-8ECI (or in the case of a Lender Party entitled to claim exemption
from withholding of United States federal income tax under Section 871(h) or
881(c) of the Internal Revenue Code (A) a certificate stating that it is not (i)
a "bank" as defined in Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower or (iii) a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), and (B) a signed and complete Internal Revenue Service Form
W-8BEN), 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 or any other Loan Document or, in the case of a
Lender Party that has certified that it is not a "bank", as described above,
certifying that such Lender Party is a foreign corporation, partnership, estate
or trust. 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 2.12 in respect of United States withholding tax
with respect to interest paid at such date, then 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 to the extent
that payment would have been required under Section 2.12(a) in respect of such
United States withholding tax if the interest were paid to such Lender Party
assignor 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 W-8BEN or W-8ECI or the related certificate described
above, 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, certificate or
other document described in subsection (e) above (other than if such failure is
due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document
originally was required to be provided or if such form, certificate or other
document 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 2.12 with respect to Taxes imposed by the United States by
43
reason of such failure; provided, however, that should a Lender Party become
subject to Taxes because of its failure to deliver a form, certificate or other
document required hereunder, the Borrower shall take such steps as such Lender
Party shall reasonably request to assist such Lender Party to recover such
Taxes.
(g) If the Borrower pays any amounts under this Section
2.12 to a Lender Party and such Lender Party determines in its reasonable
discretion that it has actually received or realized in connection therewith any
refund or any reduction of, or credit against, its tax liabilities in or with
respect to the taxable year in which the amount is paid (a "TAX BENEFIT"), such
Lender Party shall pay to the Borrower an amount that the Lender Party shall
reasonably determine is equal to the net benefit, after tax, which was obtained
by the Lender Party in such year as a consequence of such Tax Benefit; provided,
however, that (i) nothing in this Section 2.12(g) shall require the Lender Party
to disclose any confidential information to such Loan Party (including, without
limitation, its tax returns); and (ii) no Lender Party shall be required to pay
any amounts pursuant to this Section 2.12(g) at any time which a Default exists.
SECTION 2.13. 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 and the other Loan
Documents 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 and the other Loan
Documents 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 and the other Loan Documents 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
and the other Loan Documents 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. The
Borrower agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of
44
payment (including the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances
and issuances of Letters of Credit shall be available (and the Borrower agrees
that it shall use such proceeds and Letters of Credit) solely (a) on the
Effective Date, to pay transaction fees and expenses incurred in connection
herewith, (b) on the Effective Date, to refinance the Existing Facility, (c)
from time to time, to fund cash distributions to the holders of the MLP Units;
provided that the aggregate amount of all Cash Distribution Advances outstanding
hereunder at any one time shall not exceed $25,000,000 and (d) from time to
time, to provide working capital and Letters of Credit for the Borrower and its
Subsidiaries and for other general business purposes of the Borrower and its
Subsidiaries, 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 2.15. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower except for a
Defaulted Advance that is being contested in good faith by such Defaulting
Lender, and (iii) the Borrower shall be required to make any payment hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower may, so long as no Default shall occur or be
continuing at such time and to the fullest extent permitted by applicable law,
set off and otherwise apply the obligation of the Borrower to make such payment
to or for the account of such Defaulting Lender against the obligation of such
Defaulting Lender to make such Defaulted Advance. In the event that, on any
date, the Borrower shall so set off and otherwise apply its obligation to make
any such payment against the obligation of such Defaulting Lender to make any
such Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender made
on the date of such setoff under the Facility pursuant to which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01. Such
Advance shall be considered, for all purposes of this Agreement, to comprise
part of the Borrowing in connection with which such Defaulted 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 2.15.
(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
45
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 Issuing Banks and the Swing Line Bank
for any Defaulted Amounts then owing to them in their respective
capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Issuing Banks and the Swing Line
Bank; 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 2.15.
(c) In the event that, at any one time (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such Agent or such other Lender Party shall pay
such amount to the Paying Agent to be held by the Paying Agent, to the fullest
extent permitted by applicable law, in escrow or the Paying Agent shall, to the
fullest extent permitted by applicable law, hold in escrow such amount otherwise
held by it. Any funds held by the Paying Agent in escrow under this subsection
(c) shall be deposited by the Paying Agent in an interest bearing account at a
bank (the "ESCROW BANK") selected by the Paying Agent at the time, in the name
and under the control of the Paying Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the
46
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 Issuing Banks and the Swing Line Bank
for any amounts then due and payable to them hereunder in their
capacities as such, by such Defaulting Lender, ratably in accordance
with such respective amounts then due and payable to the Issuing Banks
and the Swing Line Bank;
(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 2.15 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that any Agent or any Lender Party may have against such Defaulting
Lender with respect to any Defaulted Amount.
SECTION 2.16. 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
47
(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 Note, in
substantially the form of Exhibit A hereto, payable to the order of such Lender
Party in a principal amount equal to the Revolving Credit Commitment 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 2.17. Replacement of Certain Lenders. If any Lender
(a "SUBJECT LENDER") (a) is a Defaulting Lender that owes a Defaulted Advance to
the Borrower, (b) makes demand upon the Borrower for (or if the Borrower is
otherwise required to pay) amounts pursuant to Section 2.10 (a) or (b) or
Section 2.12 or (c) gives notice pursuant to Section 2.10(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 2.10(a)
and (b) and Section 2.12 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.
48
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance or of any Issuing Bank
to issue a Letter of Credit 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 guaranty in substantially the form of
Exhibit D hereto (together with each other guaranty and
guaranty supplement delivered from time to time pursuant to
Section 5.01(i), in each case as amended, the "SUBSIDIARY
GUARANTY"), duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of or on
behalf of each Loan Party approving the Transaction (to the
extent applicable to it) and each Transaction Document to
which it is or is to be a party and/or authorizing the general
partner, managing member or officers, 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, board of directors
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.
(iv) 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 similar
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.
(v) 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
49
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.
(vi) A certificate of each Loan Party or on its
behalf by the 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 charter or
similar Constitutive Documents of such Person since the date
of the Secretary of State's certificate referred to in Section
3.01(a)(iv), (B) a true and correct copy of the bylaws or
limited liability company agreement (or similar Constitutive
Documents) as in effect on the date on which the resolutions
referred to in Section 3.01(a)(iii) 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.
(vii) 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.
(viii) 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 with the Note Purchase
Agreement as the Paying Agent shall request.
(ix) A certificate, substantially in the form of
Exhibit E hereto (the "SOLVENCY CERTIFICATE"), attesting to
the Solvency of the Loan Parties before and after giving
effect to the Transaction, from the chief financial officer
(or person performing similar functions) of the Borrower.
(x) A five year Business Plan in form and scope
satisfactory to the Lenders.
50
(xi) A Notice of Borrowing or Notice of Issuance,
as applicable, relating to the Initial Extension of Credit.
(xii) A favorable opinion of Katten Muchin Zavis
Rosenman, counsel for the Loan Parties, in substantially the
form of Exhibit F-1 hereto.
(xiii) A favorable opinion of Thomas L. Pearson,
Senior Vice President-Law and Administration, General Counsel
and Secretary of the General Partner, in substantially the
form of Exhibit F-2 hereto.
(xiv) A favorable opinion of Shearman & Sterling,
counsel for the Agents, in form and substance satisfactory to
the Agents.
(xv) An intercreditor agreement in substantially
the form of Exhibit G hereto (as amended, the "INTERCREDITOR
AGREEMENT"), duly executed by the Paying Agent, the
noteholders under the Note Purchase Agreement, the Subsidiary
Guarantors and the Borrower.
(b) The Lender Parties shall be satisfied with the
capitalization of each Loan Party and the partnership or limited
liability company structure of each Loan Party and its managing general
partner or managing member, as applicable, including, without
limitation, the terms and conditions of the Constitutive Documents and
each class of Capital Stock 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 (including, without limitation, the Existing Facility),
other than Surviving Debt, has been prepaid, redeemed or defeased in
full or otherwise satisfied and extinguished, all commitments relating
thereto terminated and all liens and security interests granted in
connection therewith released 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, 2002.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting the General Partner, any Loan Party
or any of its Subsidiaries pending or, to the best knowledge of the
Borrower, threatened before any Governmental Authority 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
material adverse change in the status, or financial effect on the
General Partner, any Loan Party or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 4.01(f) hereto.
51
(f) All Governmental Authorizations 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 General Partner, the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create
any Lien on, the Capital Stock in the Borrower or any properties or
other assets of any Loan Party or its Subsidiaries.
(g) The Borrower shall have paid all accrued fees of the
Agents, the Joint Arrangers and the Lender Parties and all reasonable
expenses of the Agents (including the reasonable fees and expenses of
Shearman & Sterling, counsel to the Agents) to the extent such fees and
expenses have been invoiced at least 24 hours prior to the date hereof
or are specifically set forth in the Fee Letter.
(h) The Senior Notes shall have received long-term senior
unsecured non-credit enhanced debt ratings of at least BBB- from Fitch
IBCA, Inc. and such rating shall remain in effect at the time of
closing.
(i) (i) The Borrower's and its Subsidiaries' employee
benefit plans shall be, in all material respects, funded in accordance
with the minimum statutory requirements, (ii) no "reportable event" (as
defined in ERISA, but excluding events for which reporting has been
waived) shall have occurred and be continuing as to any such employee
benefit plan, and (iii) no termination of, or withdrawal from, any such
employee benefit plan shall have occurred and be continuing or be
contemplated.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance and Renewal. The obligation of each Appropriate Lender to make an
Advance (other than a Letter of Credit Advance made by an Issuing Bank or a
Lender pursuant to Section 2.03(c) and a Swing Line Advance made by a Lender
pursuant to Section 2.02(b)) on the occasion of each Borrowing (including the
initial Borrowing), and the obligation of each Issuing Bank to issue a Letter of
Credit (including the initial issuance) or renew a Letter of Credit and the
right of the Borrower to request a Swing Line Borrowing, shall be subject to the
further conditions precedent that on the date of such Borrowing or issuance or
renewal (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing, Notice of Swing Line Borrowing, Notice of
Issuance or Notice of Renewal and the acceptance by the Borrower of the proceeds
of such Borrowing or of such Letter of Credit or the renewal of such Letter of
Credit shall constitute a representation and warranty by the Borrower that both
on the date of such notice and on the date of such Borrowing or issuance or
renewal 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 or issuance or
renewal and to the application of the proceeds therefrom,
52
as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to an earlier
date, in which case as of such earlier date; and
(ii) no Default has occurred and is continuing, or would
result from such Borrowing or issuance or renewal 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
managing 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 Authorizations other than such Governmental
Authorizations that are being obtained in the ordinary course of
business or, that if not obtained, is not reasonably likely to result
in a Material Adverse Effect) 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
Borrower has been validly issued, fully paid (to the extent required
under the Partnership Agreement ) and non-assessable (except as such
non-assessability may be affected by section 17-607 of the Delaware
Revised Uniform Limited Partnership Act) and are owned by the Persons
in the amounts specified on the applicable portion of Schedule 4.01(a)
hereto free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of all Subsidiaries of each Loan Party, showing as of
the date hereof (as to each such
53
Subsidiary) the status of each Subsidiary as a Restricted Subsidiary or
Unrestricted Subsidiary, the jurisdiction of its organization, the
number of shares of each class of its Capital Stock authorized, and the
number outstanding, on the date hereof and the percentage of each such
class of its Capital Stock owned (directly or indirectly) by such Loan
Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the
date hereof. All of the outstanding Capital Stock in each Loan Party's
Subsidiaries has been validly issued, is fully paid (to the extent
required by such Subsidiary's operating agreement, in the case of a
limited liability company) and non-assessable (except as such
non-assessability may be affected by section 18-607 of the Delaware
Limited Liability Company Act, in the case of a limited liability
company) 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,
the execution, delivery and performance by the General Partner of each
Transaction Document to which it is a party, and the consummation of
the Transaction by each Loan Party to the extent applicable to it, are
within such Loan Party's or such Loan Party's managing 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 the General Partner or 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 managing general partner's or managing member's
Constitutive Documents, (ii) violate any law, rule, regulation
(including, without limitation, Regulations T, 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 the
General Partner, any Loan Party, any of its Subsidiaries or any of
their properties or (iv) except for the Liens, if any, 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. Neither the General Partner, any Loan
Party nor any of its Subsidiaries are 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 Governmental Authorization, and no notice to or
filing with, any Governmental Authority 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
applicable to it or (ii) the exercise by any Agent or any Lender Party
of its rights under the Loan Documents, 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 and
54
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. The
Transaction Documents to which the General Partner is a party have been
duly executed and delivered by the General Partner. Each Transaction
Document to which the General Partner is a party is the legal, valid
and binding obligation of the General Partner, enforceable against the
General Partner in accordance with its terms.
(f) There is no action, suit, investigation, litigation
or proceeding affecting the General Partner, any Loan Party or any of
its Subsidiaries, including any Environmental Action, pending or, to
the best knowledge of the Borrower, threatened before any Governmental
Authority 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 applicable to the General Partner or such Loan Party, and
there has been no material adverse change in the status, or financial
effect on the General Partner, 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 the Borrower and
its Subsidiaries and of the MLP and its Subsidiaries, in each case, as
at December 31, 2002 and the related Consolidated statement of income
and Consolidated statement of cash flows of the Borrower and its
Subsidiaries and of the MLP and its Subsidiaries, in each case, for the
fiscal year then ended, accompanied by an unqualified opinion of
Deloitte & Touche LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries and of
the MLP and its Subsidiaries, in each case, as at June 30, 2003, and
the related Consolidated statement of income and Consolidated statement
of cash flows of the Borrower and its Subsidiaries and of the MLP and
its Subsidiaries, in each case, for the six months then ended, duly
certified by the chief financial officer (or person performing similar
functions) of the managing general partner of the Borrower or of the
MLP, as applicable, copies of which have been furnished to each Lender
Party, fairly present, subject, in the case of said balance sheet as at
June 30, 2003, and said statements of income and cash flows for the six
months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Borrower and its Subsidiaries and of the MLP
and its Subsidiaries, in each case, as at such dates and the
Consolidated results of operations of the Borrower and its Subsidiaries
and of the MLP and its Subsidiaries, in each case, for the periods
ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis, and since December
31, 2002, there has been no Material Adverse Change.
55
(h) The Consolidated and consolidating forecasted balance
sheets, statements of income and statements of cash flows of the
Borrower and its Subsidiaries delivered to the Lender Parties in the
Information Memorandum prior to the Effective Date and pursuant to
Section 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower's best estimate of
its future financial performance.
(i) 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, when taken as a whole, 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.
(j) 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 or drawings under any Letter of
Credit 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.
(k) 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 issuance
of any Letters of Credit, 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.
(l) 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.
(m) Each Loan Party is, individually and together with
its Subsidiaries, Solvent.
(n) (i) Set forth on Schedule 4.01(n) hereto is a
complete and accurate list of all Plans and Multiemployer Plans.
56
(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.
(o) (i) Except as set forth on Part I of Schedule
4.01(o) hereto, the operations and properties of each Loan Party and
each of its Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, and no
circumstances exist that would be reasonably likely to (A) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) Except as set forth on Part II of Schedule
4.01(o) 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.
57
(iii) Except as set forth on Part III of Schedule
4.01(o) hereto, neither any Loan Party nor any of its Subsidiaries is
undertaking (or has had undertaken on its behalf), 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.
(p) (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(p) hereto is a
complete and accurate list, as of the date hereof, of each taxable year
of each Loan Party and each of its Subsidiaries and Affiliates for
which Federal income tax returns have been filed and for which the
expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an
"OPEN YEAR").
(iii) The aggregate unpaid amount, as of the date
hereof, of adjustments to the Federal income tax liability of each Loan
Party and each of its Subsidiaries and Affiliates proposed by the
Internal Revenue Service with respect to Open Years does not exceed $0.
No issues have been raised by the Internal Revenue Service in respect
of Open Years that, in the aggregate, would be reasonably likely to
have a Material Adverse Effect.
(iv) The aggregate unpaid amount, as of the date
hereof, of adjustments to the state, local and foreign tax liability of
each Loan Party and its Subsidiaries and Affiliates proposed by all
state, local and foreign taxing authorities (other than amounts arising
from adjustments to Federal income tax returns) does not exceed $0. No
issues have been raised by such taxing authorities that, in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
(v) Each of the Borrower and the MLP will be
treated as a partnership for Federal income tax purposes.
(q) 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.
58
(r) Set forth on Schedule 4.01(r) 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.
(s) Set forth on Schedule 4.01(s) 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.
(t) Set forth on Schedule 4.01(t) 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.
(u) Set forth on Schedule 4.01(u) hereto is a complete
and accurate list of all Investments consisting of Debt or equity 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.
(v) (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
mark, 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 mark,
trademark, trade name or other right owned or used by the Borrower or
any of its Subsidiaries.
(w) 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.
(x) The Borrower's obligations under this Agreement and
the Notes and each Subsidiary Guarantor's obligations under the
Subsidiary Guaranty, will, upon the execution and delivery of the Notes
and the execution and delivery of such Subsidiary Guaranty,
respectively, 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.
59
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, any Letter of Credit shall be outstanding 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 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
60
Material Adverse Effect or except to the extent such risks are
self-insured in a manner and in an amount consistent with sound
business practices and customary industry standards.
(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 Paying Agent a
guaranty or guaranty supplement, in the form of Exhibit D hereto in the
case of a guaranty, and otherwise in form and substance reasonably
satisfactory to the Paying Agent in the case of a supplement,
guaranteeing the other Loan Parties' obligations under the Loan
Documents and (ii) at
61
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 (as to which both the Borrower and the Paying Agent
agree in good faith constitutes a 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 carry out more effectively the
purposes of the Loan Documents.
(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 reasonably 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 in its good faith and reasonable judgment 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, after written notice
to the Borrower, retain an environmental consulting firm to prepare
such report at the expense of the Borrower, unless the Borrower shall
have given adequate assurances reasonably acceptable to the Paying
Agent within three Business Days of such notice that such a report will
be delivered within such 60-day period, and the Borrower hereby grants
and agrees to cause any Subsidiary that owns any property described in
such request to grant at the time of such request to the Paying Agent,
the Lender Parties, such firm and any agents or representatives thereof
an irrevocable non-exclusive license, subject to the rights of tenants,
to enter onto their respective properties to undertake such an
assessment.
62
(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 an amount equal to all such
Notional Debt was considered to be outstanding.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other monetary obligation of any Loan Party under any Loan Document shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist,
or permit any of its Restricted Subsidiaries to create, incur, assume
or suffer to exist, any Lien on or with respect to any of its
properties of any character (including, without limitation, accounts)
whether now owned or hereafter acquired, or sign or file or suffer to
exist, or permit any of its Restricted Subsidiaries to sign or file or
suffer to exist, under the Uniform Commercial Code of any jurisdiction,
a financing statement that names the Borrower or any of its Restricted
Subsidiaries as debtor, or sign or suffer to exist, or permit any of
its Restricted Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Restricted
Subsidiaries to assign, any accounts or other right to receive income,
except:
(i) Permitted Liens;
63
(ii) other Liens incurred in the ordinary course
of business securing obligations in an amount not to exceed
$10,000,000;
(iii) Liens existing on the date hereof and
described on Schedule 4.01(t) hereto;
(iv) 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;
(v) 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 assets other than
the assets subject to such Capital Leases;
(vi) the replacement, extension or renewal of any
Lien permitted by clauses (iii) through (v) 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;
(vii) 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);
(viii) 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;
(ix) Liens on documents of title and the property
covered thereby securing obligations in respect of letters of
credit to the extent not prohibited under Section 5.02(b); and
(x) 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
64
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,
(A) Debt owed to a Wholly Owned
Restricted Subsidiary of the Borrower, and
(B) other unsecured Debt incurred in
the ordinary course of business aggregating not more
than $35,000,000 at any time outstanding other than
Guaranties or other contingent obligations of the
Borrower with respect to any Debt or other obligation
of any Unrestricted Subsidiary; provided that (w) 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 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, (x) such unsecured
Debt ranks junior to or pari passu with the
Facilities, (y) such unsecured Debt matures, and does
not begin to amortize until, more than six months
after the Termination Date and does not amortize and
(z) the covenants and other material terms of such
unsecured Debt are no more restrictive than those set
forth in the Loan Documents;
(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 set forth on
Schedule 4.01(s) hereto,
(C) non-recourse Debt of the Borrower
and Restricted Subsidiaries incurred solely to
finance Capital Expenditures for the development of
Greenfield Projects,
(D) non-recourse Debt secured by Liens
permitted by Section 5.02(a)(iv),
65
(E) 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,
(F) 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, 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
extension, refunding or refinancing 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
and the interest rate applicable to any such
extension, refunding or refinancing does not exceed
the then applicable market rate; provided further
that the repayment in whole or in part of the
Advances pursuant to Section 2.04 or Section 2.06
with the proceeds of Debt incurred pursuant to
Section 5.02(b)(i)(B) or Section 5.02(b)(iii)(G)
shall not constitute an extension, refunding or
refinancing under this subclause (F), and
(G) 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; provided, in each case, that
the Borrower shall be in pro forma compliance with
the covenants contained in Section 5.04, calculated
based on the financial statements most recently
delivered to the Lender Parties pursuant to Section
5.03 and as though such Debt or Capital Lease
Obligations had been incurred at the beginning of the
four-quarter period covered thereby, as evidenced by
a certificate of the chief financial officer (or
person performing similar functions) of the Borrower
delivered to the Paying Agent demonstrating such
compliance.
(c) Change in Nature of Business. Make, or permit any of
its Restricted Subsidiaries to make, any material change in the nature
of their businesses, taken as a whole, as carried on at the date
hereof.
(d) Mergers, Etc. Merge into or consolidate with any
Person or permit any Person to merge into it or convey, transfer or
lease substantially all of its assets in a single
66
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, any other
Person, or (B) convey, transfer or lease substantially all of
its assets in compliance with Section 5.02(e) (other than
clause (v) thereof) in a single transaction or series of
related transactions to any other Person or (C) permit any
other Person to merge into or consolidate with it; provided,
in each case with respect to any merger or consolidation or
conveyance, transfer or lease of substantially all of its
assets, (1) the Person formed by such consolidation or into
which the Restricted Subsidiary shall be merged or assets
shall be conveyed, transferred or leased shall, at the
effective time of such merger or consolidation or transfer or
lease be Solvent and shall have assumed all obligations of
such Restricted Subsidiary under any Subsidiary Guaranty to
which such Restricted Subsidiary is a party in a writing
satisfactory in form and substance to the Required Lenders and
(2) the Borrower shall have caused to be delivered to the
Paying Agent an opinion of independent counsel satisfactory to
the Paying Agent to the effect that all agreements or
instruments effecting such assumption are enforceable in
accordance with the terms thereof;
provided, however, that in each case, immediately after giving effect
thereto, (i) no event shall occur and be continuing that constitutes a
Default and (ii) the Borrower shall be in pro forma compliance with the
covenants contained in Section 5.04, as evidenced by a certificate of
the chief financial officer (or persons performing similar functions)
of the Borrower delivered to the Paying Agent demonstrating such
compliance.
(e) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Restricted Subsidiaries to
sell, lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any
assets other than Inventory to be sold in the ordinary course of its
business, except:
(i) sales of Inventory in the ordinary course of
its business;
(iii) 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;
67
(iv) sale-leasebacks of used equipment in an
aggregate amount not to exceed $10,000,000 over the term of
the Facilities;
(v) 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;
(vi) in a transaction authorized by Section
5.02(d); and
(vii) 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 shall exist.
(f) Investments in Other Persons. Make or hold, or permit
any of its Restricted Subsidiaries to make or hold, any Investment in
any Person, except:
(i) Investments consisting of property to be
used in the ordinary course of business;
(ii) Investments in accounts receivable arising
from the sales of goods and services in the ordinary course of
business;
(iii) equity Investments by the Borrower and its
Restricted Subsidiaries in Wholly Owned Restricted
Subsidiaries;
(iv) Investments by the Borrower and its
Restricted Subsidiaries in Cash Equivalents;
(v) Investments existing on the date hereof and
described on Schedule 4.01(u) 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 Wholly-Owned 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
68
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; provided, however, that so long as the Borrower
and its Restricted Subsidiaries shall not have made
Investments in Unrestricted Subsidiaries in excess of
$10,000,000 as provided in this clause (viii), the Borrower
shall not be in violation of this clause (viii) in the event
that the Investments held (as opposed to made) by the Borrower
and its Restricted Subsidiaries in Unrestricted Subsidiaries
shall at any time exceed $10,000,000; and
(ix) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(i) and (ii).
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its Capital Stock now or hereafter outstanding, return any capital to
its stockholders, partners or members (or the equivalent Persons
thereof) as such, make any distribution of assets, Capital Stock,
obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such, or permit any of its
Restricted Subsidiaries to do any of the foregoing (each of the
foregoing being a "RESTRICTED PAYMENT"), or permit any of its
Restricted Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any Capital Stock in the Borrower or to
issue or sell any Capital Stock therein, except that, so long as no
Default or Event of Default shall have occurred and be continuing at
the time of any action described in clause (i) or (ii) below or would
result therefrom:
(i) the Borrower may declare, make or incur a
liability to make any such Restricted Payment; provided that
immediately after giving effect thereto 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) (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
69
any Restricted Payment to its equity holders; provided that
the general partner of such Subsidiary does not own greater
than 2% of the issued and outstanding Capital Stock 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 (except to the extent and not exceeding the
amounts permitted by Section 5.02(e)(iv)), 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 $15,000,000 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, and except that the Borrower
and its Subsidiaries may account for the compensation expense of the
non-vested common units granted under the MLP's Long-Term Incentive
Plan using the "fair value" method, or (ii) Fiscal Year.
(k) Prepayments, Etc., of Debt. (i) Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner the Senior Notes prior to the Termination Date,
except (A) mandatory prepayments of principal, and payments of
interest, required under the Note Purchase Agreement and (B)
redemptions of the Senior Notes made concurrently with the refinancing
thereof permitted under Section 5.02(b)(iii)(F) or (ii) permit any
Subsidiary Guarantor (as defined in the Note Purchase Agreement) to
make any payment to or on account of any noteholder under the Note
Purchase Agreement other than a payment made following a demand
therefor by such noteholder pursuant to the Subsidiary Guaranty
Agreement (as defined in the Note Purchase Agreement).
(l) Amendment, Etc., of the Note Purchase Agreement.
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 the Borrower and/or any
of its Restricted Subsidiaries may be a general partner in
70
any partnership or joint venture provided such partnership or such
joint venture incurs no Debt or other liability for which the Borrower
or such Restricted 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 (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 5.02(q) hereto, enter into, or permit any of its Restricted
Subsidiaries to enter into, directly or indirectly, any transaction or
group of related transactions (including without limitation the
purchase, lease, sale or exchange of properties of any kind or the
rendering of any service) with any Affiliate, except in the ordinary
course or pursuant to the reasonable requirements of the Borrower's or
such Restricted Subsidiary's business, in each case 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 or its
Conflicts Committee) 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
71
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, any Letter of Credit shall be outstanding 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 (or its managing general partner) 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 100 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 & 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 (or
its managing general partner) 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 55 days after the end of each of the first three quarters
of each Fiscal Year, a Consolidated
72
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 (or its managing general partner) 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 a form
reasonably 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 100 days after the end of each Fiscal Year, a
Business Plan.
(e) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any Governmental Authority affecting the General
Partner, 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 the General Partner, 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 the 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 the 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 (or its managing general
partner) describing such ERISA Event and the action, if any, that such
Loan Party or such ERISA
73
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
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) Available Cash, Etc. Within 55 days (or in the case
of the fourth fiscal quarter, 100 days) following the end of each
fiscal quarter of the Borrower, a report of Available Cash (as defined
in the MLP Agreement), cash reserves (including, in the case of any
such cash distribution 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)), the
aggregate amount of Cash Distribution Advances outstanding at the end
of such fiscal quarter and other related items of the Borrower and its
Subsidiaries in form and substance satisfactory to the Paying Agent.
(j) Coal and Mining Agreements. Promptly after the
occurrence thereof, notice of any material change to any material coal
sales agreement or material contract, contract mining agreement or coal
purchase agreements to which the Borrower or any of its Subsidiaries is
a party.
(k) 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.
(l) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations,
performance, properties or prospects of
74
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, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will:
(a) Consolidated Debt to Consolidated Cash Flow Ratio.
Maintain at all times, a Consolidated Debt to Consolidated Cash Flow
Ratio of not more than 3.0:1.0.
(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, an
Interest Coverage Ratio of not less than 4.0:1.0.
(d) Maximum Capital Expenditures. Not make, or permit any
of its Subsidiaries to make, any Capital Expenditures that would cause
the aggregate of all Capital Expenditures made by the Borrower and its
Subsidiaries in any period set forth below to exceed the amount set
forth below for such period:
- ---------------------------------------------
Amount per annum Fiscal Year Ending
- ---------------------------------------------
$48,800,000 December 31, 2003
- ---------------------------------------------
$53,300,000 December 31, 2004
- ---------------------------------------------
$50,600,000 December 31, 2005
- ---------------------------------------------
$50,200,000 December 31, 2006
- ---------------------------------------------
; provided, however, that if, for any Fiscal Year set forth above, the
amount specified above for such Fiscal Year exceeds the aggregate
amount of Capital Expenditures made by the Borrower and its
Subsidiaries during such Fiscal Year (the amount of such excess being
the "EXCESS AMOUNT"), the Borrower and its Subsidiaries shall be
entitled to make additional Capital Expenditures in the immediately
succeeding Fiscal Year in an amount equal to such Excess Amount, in
which case the Capital Expenditures made by the Borrower and its
Subsidiaries in such immediately succeeding year shall first be applied
to such Excess Amount before such Capital Expenditures shall reduce and
be applied
75
against the amount of Capital Expenditures otherwise permitted during
such immediately succeeding year.
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 (or persons performing similar
functions)_ 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 in writing 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 Sections 2.14, 5.01(d) or (e),
5.02, 5.03(a) or 5.04; or
(d) any Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on its
part to be performed or observed if such failure shall remain
unremedied for 30 days after the earlier of the date on which (i) a
Responsible Officer becomes aware of such failure or (ii) written
notice thereof shall have been given to the Borrower by any Agent or
any Lender Party; or
(e) any Loan Party shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of any
Debt of such Loan Party or such Subsidiary (as the case may be) that is
outstanding in a principal amount (or, in the case of any Swap, the
value of obligations under such Swap) 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
76
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 the General Partner 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 the General Partner 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, any
of its Restricted Subsidiaries or the General Partner shall take any
corporate action to authorize any of the actions set forth above in
this subsection (f); or
(g) any judgments or orders, either individually or in
the aggregate, for the payment of money in excess of $10,000,000 shall
be rendered against any Loan Party and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an
Event of Default under this Section 6.01(g) if and for so long as (i)
the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering
payment thereof and (ii) such insurer, which shall be rated at least
"A" by A.M. Best Company at the time such insurance policy is issued to
such Loan Party, has been notified of, and has not disputed the claim
made for payment of, the amount of such judgment or order; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party that would reasonably be likely to have a
Material Adverse Effect, and there shall be any period of 60
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 or 5.01(i) 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) a Change of Control shall occur; or
77
(k) 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
(l) 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
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$2,500,000; or
(n) the Borrower, the General Partner or the Special
General Partner 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
(o) 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); or
(p) the Borrower shall fail to maintain a period of 30
consecutive days in any Fiscal Year during which the average principal
amount of Cash Distribution Advances outstanding during such 30 day
period does not exceed $5,000,000;
78
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 Letter of
Credit Advances by an Issuing Bank or a Lender pursuant to Section
2.03(c) and Swing Line Advances by a Lender pursuant to Section
2.02(b)) and of each Issuing Bank to issue Letters of Credit 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 and
(B) by notice to each party required under the terms of any agreement
in support of which a Standby Letter of Credit is issued, request that
all Obligations under such agreement be declared to be due and payable;
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 Letter of
Credit Advances by an Issuing Bank or Lender pursuant to Section
2.03(c) and Swing Line Advances by a Lender pursuant to Section
2.02(b)) and of each Issuing Bank to issue Letters of Credit shall
automatically be terminated and (y) the Notes, all such interest and
all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Paying Agent may, or shall at the request of the Required Lenders, irrespective
of whether it is taking any of the actions described in Section 6.01 or
otherwise, make demand upon the Borrower to, and forthwith upon such demand the
Borrower will, pay to the Paying Agent on behalf of the Lender Parties in same
day funds at the Paying Agent's office designated in such demand, for deposit
into an account specified by the Paying Agent, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding. If at any time the
Paying Agent determines that any funds held in such account are subject to any
right or claim of any Person other than the Agents and the Lender Parties or
that the total amount of such funds is less than the aggregate Available Amount
of all Letters of Credit, the Borrower will, forthwith upon demand by the Paying
Agent, pay to the Paying Agent, as additional funds to be deposited and held in
such account, an amount equal to the excess of (a) such aggregate Available
Amount over (b) the total amount of funds, if any, then held in such account
that the Paying Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
in such account, such funds shall be applied to reimburse the relevant Issuing
Bank or Lenders, as applicable, to the extent permitted by applicable law. If
(i)(A) all Letters of Credit for which funds are on deposit in such account have
expired or been terminated and (B) no Default shall then be continuing or
(ii)(A) if the Commitments of each Lender Party and the obligation of each
Lender Party to make Advances and of the Issuing Banks to issue Letters of
Credit shall have been terminated and (B) all other Obligations shall have been
satisfied in full in cash, then the Paying Agent shall, within 14 days, return
to the Borrower all such monies then remaining in such account.
79
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender, a Swing Line Bank (if applicable) or an Issuing 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 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. JPMorgan, Citicorp and Affiliates. With respect
to its Commitments, the Advances made by it and the Notes issued to it, JPMorgan
and Citicorp shall
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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 JPMorgan and Citicorp in their respective individual capacities.
JPMorgan 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 JPMorgan 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
(collectively, the "INDEMNIFIED COSTS"); provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence, willful misconduct or unlawful
acts as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender Party agrees to
reimburse each Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrower. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by any Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify each
Issuing Bank (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 Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank 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 Issuing Bank's gross
negligence,
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willful misconduct or unlawful acts as found in a final, non-appealable judgment
by a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Issuing Bank 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 Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrower.
(c) 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) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (iii) 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 and of Letter of Credit
Advances owing to any Issuing Bank shall be considered to be owed to the Lenders
ratably in accordance with their respective Revolving Credit Commitments. The
failure of any Lender Party to reimburse any Agent or any Issuing Bank, as the
case may be, promptly upon demand for its ratable share of any amount required
to be paid by the Lender Parties to such Agent or such Issuing Bank, as the case
may be, as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse such Agent or such Issuing Bank, as the case
may be, 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 or
such Issuing Bank, as the case may be, 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. 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
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successor Agent is appointed by the Borrower at such time, the Required Lenders
shall thereafter perform all duties of the retiring Agent under the Loan
Documents until such time, if any, as the Required Lenders appoint a successor
Agent as provided above. After any retiring Agent's resignation or removal
hereunder as Agent as to any or all of the Facilities shall have become
effective, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent as to such
Facilities under this Agreement.
SECTION 7.07. Intercreditor Agreement. Each Lender and each
Agent hereby authorizes the Paying Agent to execute and deliver the
Intercreditor Agreement on its behalf and consents and agrees to be bound by the
terms and provisions of the Intercreditor Agreement to the same extent and with
the same effect as if such Lender or such Agent had executed and delivered the
same as one of the original parties thereto as a Lender or Agent, as the case
may be, in respect of this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. Except as otherwise
contemplated by Section 8.07 and the Subsidiary Guaranty, no amendment or waiver
of any provision of this Agreement or the Notes or any other Loan Document, nor
consent to any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed (or, in the case of the
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 Lender Parties (other
than any Lender Party that is, at such time, a Defaulting Lender, except for
clause (v) hereof), do any of the following at any time: (i) waive any of the
conditions specified in Section 3.01 or, in the case of the Initial Extension of
Credit, Section 3.02, (ii) change the number of Lenders or the percentage of (x)
the Commitments, (y) the aggregate unpaid principal amount of the Advances or
(z) the aggregate Available Amount of outstanding Letters of Credit that, in
each case, shall be required for the Lenders of any of them to take any action
hereunder, (iii) reduce or limit the obligations of any Subsidiary Guarantor
under Section 1 of the Subsidiary Guaranty issued by it or release such
Subsidiary Guarantor or otherwise limit such Subsidiary Guarantor's liability
with respect to the Obligations owing to the Agents and the Lender Parties, (iv)
amend Section 2.13, or (v) amend this Section 8.01, and (b) no amendment, waiver
or consent shall, unless in writing and signed by the Required Lenders and each
Lender that has a Commitment under the Revolving Credit 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 2.06 in any manner that materially affects such Lender;
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank or each Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank or of the Issuing Banks, as the case may be,
under this Agreement; and provided further that no amendment, waiver or consent
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shall, unless in writing and signed by an Agent in addition to the Lenders
required above to take such action, affect the rights or duties of such Agent
under this Agreement or the other Loan Documents.
SECTION 8.02. Notices, Etc. Except as otherwise provided in
Section 2.02, all notices and other communications provided for hereunder shall
be in writing (including telecopy communication confirmed by mail or delivery)
and mailed, telecopied, e-mailed or delivered, if to the Borrower, at its
address at 1717 South Boulder Avenue, Tulsa, Oklahoma 74119, Attention: Cary P.
Marshall, telephone (918) 295-7624, telecopier (918) 295-7357, e-mail address:
cary.marshall@arlp.com, with a copy to Thomas Pearson, Esq. at the same address,
telephone (918) 295-7606, telecopier (918) 295-7361, email address:
tom.pearson@arlp.com; if to any Initial Lender Party, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender
Party at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; if to JPMorgan as Paying Agent or
Co-Administrative Agent, at its address at 1111 Fannin, 10th Floor, Houston,
Texas 77002, Attention: Omar Musule, telephone (713) 750-3512, telecopier (713)
750-2223, E-mail address: omar.p.musule@jpmorgan.com), with a copy to 270 Park
Avenue, 4th Floor, New York, New York 10017, Attention: Peter S. Predun,
telephone (212) 270-7005, telecopier (212) 270-5100, e-mail Address:
peter.predun@jpmorgan.com); and if to Citicorp as Co-Administrative Agent, at
its address at 388 Greenwich Street, 21st Floor, New York, New York, 10013,
Attention: Dan Miller, telephone (212) 816-8283, telecopier (212) 816-8051,
e-mail address: daniel.j.miller@citigroup.com; 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, e-mailed or delivered, be effective when
deposited in the mails, e-mailed 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 or any other Loan Document 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
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or with other creditors of any Loan Party or any of its Subsidiaries arising out
of any Default or any events or circumstances that may give rise to a Default
and with respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of each Agent and each Lender Party in connection with the
enforcement of the Loan Documents after an Event of Default, whether in any
action, suit or litigation, or any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without limitation,
the reasonable fees and expenses of counsel for the Paying Agent and each Lender
Party with respect thereto). Notwithstanding anything to the contrary in the
foregoing, the Borrower will not be obligated to pay any allocated overhead
costs of the Agents, the Joint Arrangers or any of their Affiliates.
(b) The Borrower agrees to indemnify, defend and save and
hold harmless 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 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 or the Letters of Credit, 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 in each case 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 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 or the Letters of Credit,
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 2.06, 2.09(b)(i)
or 2.10(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 2.04, 2.06 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 8.04, 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 2.10 and 2.12
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, 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
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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 8.05 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 Party that such
Initial Lender Party 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 or an Affiliate of a Lender that is not an Eligible Assignee
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, however, that
(A) except in the case of an assignment to an Eligible Assignee that is a Lender
or an Affiliate of a Lender, each of the Paying Agent and, unless a Default
shall have occurred and be continuing at the time such assignment is effected,
the Borrower must give their prior consent to such assignment (which consent
shall not be unreasonably withheld or delayed) and (B) if the assignment is
demanded by the Borrower pursuant to Section 2.17, no Default shall have
occurred and be continuing at the time of such demand and such assignment and
the Borrower shall have given at least five Business Days' notice of such demand
to the applicable Lender and the Paying Agent; provided, however, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of one or more of the Facilities,
(ii) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Lender, 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 or an Affiliate of a Lender, (iv) each such assignment made as
a result of a demand by the Borrower pursuant to Section 2.17 shall be arranged
by the Borrower after consultation with the Paying Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment
(whether as a result of a demand by the Borrower pursuant to Section 2.17 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
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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 2.17, 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
or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing
Bank 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 2.10, 2.12 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 or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank 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 the General Partner, any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon any Agent, such assigning
Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms
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of this Agreement are required to be performed by it as a Lender or Issuing
Bank, as the case may be.
(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 Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
(f) Each Issuing Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided, however, that
(i) except in the case of an assignment to a Person that immediately prior to
such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the Letter of Credit
Commitment of the assigning Issuing Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, (ii) each such assignment
shall be to an Eligible Assignee and (iii) 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 a processing and
recordation fee of $3,500.
(g) 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
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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 or on
behalf of 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.
(h) 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 in accordance with Section 8.10.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time pledge or assign all or any portion
of its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System; provided that no such pledge or assignment shall release a
Lender Party from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender Party as a party hereto.
SECTION 8.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 8.09. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the
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Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower or any of its Subsidiaries that the Borrower proves were caused
by (i) such Issuing Bank's willful misconduct or gross negligence as determined
in a final, non-appealable judgment by a court of competent jurisdiction in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. 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, participants and swap or
securitization counterparties, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) as requested or
required by any state, Federal or foreign authority or examiner regulating such
Lender Party, (d) to any rating agency when required by it; provided that, prior
to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Loan Parties
received by it from such Lender Party on the same basis as applicable to a
Lender Party under this Section 8.10, and (e) as may be reasonably necessary in
enforcing its rights hereunder and under the other Loan Documents.
Notwithstanding anything herein to the contrary, the Borrower, the Agents and
the Lender Parties agree that each of the Borrower, the Agents and the Lender
Parties (and each of their respective officers, directors, employees,
accountants, attorneys and other advisors, agents and representatives) may
disclose to any and all persons, without limitation of any kind, the U.S. tax
treatment and U.S. tax structure of the Transaction and all materials of any
kind (including opinions and other tax analyses) that are provided to any of
them relating to such U.S. tax treatment and U.S. tax structure.
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, to the extent permitted by law, shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that
any party may otherwise have to bring any action or proceeding relating to this
Agreement or any of the other Loan Documents in the courts of any jurisdiction.
91
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 8.12. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.13. Non-Recourse to the General Partner and
Associated Persons. Each Agent and each Lender Party agrees on behalf of itself
and its successors, assigns and legal representatives, that neither the General
Partner, the Special General Partner nor any Person (other than the Loan
Parties) which is a partner, shareholder, member, owner, officer, director,
supervisor, trustee or other principal (collectively, "ASSOCIATED PERSONS") of
the Borrower, the General Partner, the Special General Partner or 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, the Special
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.
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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, THE LETTERS OF CREDIT 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 cause this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ALLIANCE RESOURCE OPERATING PARTNERS, L.P.
By: ALLIANCE RESOURCE MANAGEMENT GP, LLC,
Its Managing General Partner
By: /s/ Cary P. Marshall
------------------------
Name: Cary P. Marshall
Title: Vice President-Corporate Finance
and Treasurer
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JPMORGAN CHASE BANK,
as Paying Agent and Co-Administrative Agent
By: /s/ Peter S. Predun
-----------------------
Name: Peter S. Predun
Title: Vice President
94
CITICORP USA,INC.,
as Co-Administrative Agent
By: /s/ Daniel J. Miller
------------------------
Name: Daniel J. Miller
Title: Vice President
95
Initial Lender Parties
CITICORP USA,INC., as an Initial Lender
By: /s/ Daniel J. Miller
------------------------
Name: Daniel J. Miller
Title: Vice President
96
BNP PARIBAS, as and Initial Lender,
By: /s/ Evans R. Swann
----------------------
Name: Evans R. Swann
Title: Director
By: /s/ Greg Smothers
---------------------
Name: Greg Smothers
Title: Vice President
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FIRST COMMERCIAL BANK, LOS ANGELES BRANCH,
as an Initial Lender
By: /s/ Shang-Shing Chiang
--------------------------
Name: Shang-Shing Chiang
Title: FAVP & Deputy General Manager
98
US BANK NATIONAL ASSOCIATION, as an Initial Lender
By: /s/ Eric Hartman
--------------------
Name: Eric Hartman
Title: Vice President
99
BRANCH BANKING AND TRUST COMPANY, as an Initial Lender
By: /s/ Stephen J. Wood
-----------------------
Name: Stephen J. Wood
Title: Vice President
100
LASALLE BANK NATIONAL ASSOCIATION, as an Initial
Lender
By: /s/ Margaret C. Dierkes
---------------------------
Name: Margaret C. Dierkes
Title: Assistant Vice President
101
BANK OF OKLAHOMA, N.A, as an Initial Lender and an
initial Issuing Bank
By: /s/ Jamey C. Golla
----------------------
Name: Jamey C. Golla
Title: Assistant Vice President
102
FIFTH THIRD BANK, as an Initial Lender
By: /s/ Michael R. Mendenhall
-----------------------------
Name: Michael R. Mendenhall
Title: Corporate Banking Officer
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Alliance Credit Agreement
104