EXHIBIT 10.26
THREE YEAR CREDIT AGREEMENT
Dated as of September 16, 2002
CONSOL ENERGY INC., a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") and issuers of letters of credit (the "Initial Issuing Banks") listed
on the signature pages hereof, DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES and PNC BANK, N.A., as syndication agents, SALOMON SMITH BARNEY INC.,
as sole lead arranger and bookrunner, and CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Agent") for the Lenders (as hereinafter defined),
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Advance" means an advance by a Lender to the Borrower as part of
a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Advance).
"Affiliate" of any Person means any other Person which, directly
or indirectly, controls or is controlled by or under common control
with such Person (excluding any trustee under, or any committee with
responsibility for administering, any Pension Plan). A Person shall be
deemed to be "controlled by" any other Person if such other Person
possesses, directly or indirectly, power (a) to vote 10% or more of the
securities (on a fully diluted basis) having ordinary voting power for
the election of directors or managing general partners of such Person;
or (b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank at its office at Two Penns Way, New Castle, Delaware
19720, Account No. 36852248, Attention: Bank Loan Syndications.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Borrower's Public Debt Rating in effect
on such date as set forth below:
- -------------------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
Eurodollar Rate Advances Base Rate Advances
- -------------------------------------------------------------------------------------------
Level 1
- -------
A- or A3 or above 0.775% 0.000%
- -------------------------------------------------------------------------------------------
Level 2
- -------
BBB+ or Baa1 1.100% 0.250%
- -------------------------------------------------------------------------------------------
Level 3
- -------
BBB or Baa2 1.175% 0.375%
- -------------------------------------------------------------------------------------------
Level 4
- -------
BBB- or Baa3 1.350% 0.500%
- -------------------------------------------------------------------------------------------
Level 5
- -------
Lower than Level 4 1.550% 1.000%
- -------------------------------------------------------------------------------------------
"Applicable Percentage" means, as of any date a percentage per
annum determined by reference to the Borrower's Public Debt Rating in effect on
such date as set forth below:
------------------------------------------------------
Public Debt Rating Applicable
Percentage
------------------------------------------------------
Level 1
-------
A- or A3 or above 0.225%
------------------------------------------------------
Level 2
-------
BBB+ or Baa1 0.275%
------------------------------------------------------
Level 3
-------
BBB or Baa2 0.325%
------------------------------------------------------
Level 4
-------
BBB- or Baa3 0.400%
------------------------------------------------------
Level 5
-------
Lower than Level 4 0.450%
------------------------------------------------------
"Approval" means each and every approval, consent, filing and
registration by or with any Federal, state or other regulatory authority or any
third party necessary to authorize or permit the execution, delivery or
performance of this Agreement, the Notes or any other Loan Document or for the
validity or enforceability hereof or thereof.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.18(d).
"Assumption Agreement" has the meaning specified in Section
2.18(d)(ii).
"Authorized Officer" means, relative to any Loan Party, those of
its officers whose signatures and incumbency shall have been certified to the
Agent.
"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 Citibank
in New York, New York, from time to time, as Citibank's base rate;
and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrowing" means a borrowing consisting of simultaneous Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"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.
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"Capital Lease" means any lease required to be accounted for as a
capital lease under GAAP.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Change in Control" means with respect to the Borrower, the
failure of RWE AG to own, directly or indirectly, a cumulative total of at least
fifty-one percent (51%) of the outstanding shares of capital stock of the
Borrower, on a fully diluted basis, in each case, free and clear of all Liens
and other encumbrances.
"Commercial Paper Indebtedness" means commercial paper issued by
the Borrower with an original maturity of not more than 270 days from the date
of issuance, incurrence or other creation thereof and, at the time any
determination thereof is to be made, means the then aggregate outstanding face
amount (if issued, incurred or created on a discount basis) or principal amount
together with interest thereon to stated maturity (if issued, incurred or
created on an interest-bearing basis) of such commercial paper.
"Commitment" means a Revolving Credit Commitment or a Letter of
Credit Commitment.
"Commitment Date" has the meaning specified in Section 2.18(b).
"Commitment Increase" has the meaning specified in Section
2.18(a).
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as confidential,
but does not include any such information that is or becomes generally available
to the public or that is or becomes available to the Agent or such Lender from a
source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Subsidiary" of any Person means, at any time, every
Subsidiary which would be included as a consolidated subsidiary of such Person
in its consolidated financial statements as of such time; unless otherwise
specified, "Consolidated Subsidiary" means a Consolidated Subsidiary of the
Borrower.
"Contractual Obligation" means, relative to any Person, any
provision of any security issued by such Person or of any Instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary, as applicable, are treated as a single employer
under Section 414 of the Code or Section 4001 of ERISA.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type pursuant to
Section 2.08 or 2.09.
"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.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Borrower and the
Agent.
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"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender and (iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in
accordance with Section 8.07, the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment, including CERCLA and SMCRA.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term
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, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate
per annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per annum)
appearing on Telerate Markets Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. 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 or, if for any reason such rate is
not available, 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 and for a period equal to such Interest Period by
(b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period. If the Telerate Markets Page 3750 (or any successor page)
is unavailable, the Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the Agent
from the Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"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.
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"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar
months ending on December 31.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System (or any successor).
"GAAP" means generally accepted United States accounting
principles.
"Guarantor" means, at any time, each Subsidiary that is a party to
the Subsidiary Guaranty at such time.
"Guaranty" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the debt, obligation or
other liability of any other Person (other than by endorsements of instruments
in the course of collection), or guarantees the payment of dividends or other
distributions upon the shares of any other Person. The amount of the obligor's
obligation under any guaranty shall (subject to any limitation set forth
therein) be deemed to be the outstanding principal amount (or maximum
outstanding principal amount, if larger) of the debt, obligation or other
liability thereby guaranteed.
"Hazardous Material" means (a) any "hazardous substance", as
defined by CERCLA; (b) any "hazardous waste", as defined by RCRA; (c) any
petroleum product; or (d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of any other
Environmental Law.
"Impermissible Qualification" means, relative to the opinion by
independent public accountants as to any financial statement of the Borrower,
any qualification or exception to such opinion: (a) which is of a "going
concern" or similar nature; or (b) which relates to the limited scope of
examination of matters relevant to such financial information.
"Increase Date" has the meaning specified in Section 2.18(a).
"Increasing Lender" has the meaning specified in Section 2.18(b).
"Indebtedness" of any Person means, without duplication:
(a) Indebtedness for Borrowed Money;
(b) all items other than as described in clause (a) which, in
accordance with GAAP, would be included as liabilities on the liability
side of a balance sheet of such Person as of the date at which
Indebtedness is to be determined; and
(c) whether or not so included as liabilities in accordance with
GAAP,
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(i) all indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or
other title retention agreements) whether or not such indebtedness
shall have been assumed by such Person, and
(ii) all Guaranties issued by such Person.
"Indebtedness for Borrowed Money" of any Person means, without
duplication, all obligations of such Person, and all Guaranties issued by such
Person, for borrowed money (including all notes payable and drafts accepted
representing extensions of credit and all obligations evidenced by bonds,
debentures, notes, unpaid reimbursement obligations under drawn letters of
credit or other similar instruments) on which interest charges are customarily
paid.
"Information Memorandum" means the information memorandum dated
August 2, 2002 used by the Agent in connection with the syndication of the
Commitments.
"Instrument" means any document or writing (whether by formal
agreement, letter or otherwise) under which any obligation is evidenced, assumed
or undertaken, or any right to any Lien is granted or perfected.
"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 months, as the Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (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 that ends
after the 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.
"Issuing Bank" means each Initial Issuing Bank or any Eligible
Assignee to which a portion of the Letter of Credit Commitment hereunder have
been assigned pursuant to Section 8.07 so long as 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 Agent of
6
its Applicable Lending Office (which information shall be recorded by the Agent
in the Register), for so long as such Initial Issuing Bank or Eligible Assignee,
as the case may be, shall have a Letter of Credit Commitment.
"L/C Cash Collateral Account" means an interest bearing cash
collateral account to be established and maintained by the Agent, over which the
Agent shall have sole dominion and control, upon terms as may be satisfactory to
the Agent.
"L/C Related Documents" has the meaning specified in Section
2.07(b)(i).
"Lenders" means the Initial Lenders, the Issuing Banks, each
Assuming Lender that shall become a party hereto pursuant to Section 2.18 and
each Person that shall become a party hereto pursuant to Section 8.07.
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to each Initial
Issuing Bank, the amount set forth opposite such Initial Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if such
Initial Issuing Bank has entered into one or more Assignment and Acceptances,
the amount set forth for such Issuing Bank in the Register maintained by the
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 2.06.
"Letter of Credit Facility" means, at any time, an amount, not to
exceed the aggregate amount of the Revolving Credit Commitments, equal to the
Issuing Banks' Letter of Credit Commitments at such time, as such amount may be
reduced at or prior to such time pursuant to Section 2.06.
"Letters of Credit" has the meaning specified in Section 2.01(b).
"Liabilities" means all obligations (monetary or otherwise) of the
Borrower under this Agreement, the Notes and each other Loan Document.
"Lien" means any mortgage, pledge, hypothecation, charge,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease involving substantially the same
economic effect as any of the foregoing, accompanied by the filing of any
financing statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
"Loan Document" means this Agreement and each Instrument and any
other document from time to time executed and delivered hereunder, whether or
not mentioned herein, including the Notes, each Letter of Credit Agreement, the
Subsidiary Guaranty and the Subordination Agreement.
"Loan Party" means the Borrower, each Guarantor and any other
party (other than the Agent and any Lender) that executes and delivers a Loan
Document.
"Material Adverse Change" means any material adverse change in the
business, financial condition,, operations or properties of the Borrower and its
Subsidiaries taken as a whole.
"Materially Adverse Effect" means a materially adverse effect on
(a) the business, financial condition, operations or properties of the Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent
or any Lender under this Agreement or any other Loan Document or (c) the ability
of the Borrower or any other Loan Party to perform its payment or other material
obligations under this Agreement or any other Loan Document.
7
"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 the Borrower 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.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section 2.16 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Advances made by
such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Organic Document" means, relative to any corporation, its
certificate of incorporation, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its authorized shares of
capital stock.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multi-employer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower, any Subsidiary or any member of the Controlled Group of any of them,
may have any liability, including any liability under section 4063 or section
4069 of ERISA.
"Permitted Investment" means, at any time, each of the investments
listed on Schedule III hereto.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"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 Revolving Credit Commitments shall have been terminated pursuant to Section
2.06 or 6.01, such Lender's Revolving Credit Commitment as in effect immediately
prior to such termination) and the denominator of which is the aggregate amount
of all Revolving Credit Commitments at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to Section 2.06 or 6.01, the
aggregate amount of all Revolving Credit Commitments as in effect immediately
prior to such termination).
"Public Debt Rating" means, as of any date, the rating that has
been most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by the
Borrower or, if any such rating agency shall have issued more than one such
rating, the lowest such rating issued by such rating agency. For purposes of the
foregoing, (a) if only one of S&P or Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage shall be determined
by reference to the available rating; (b) if none of S&P or Moody's shall have
in effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage will be set in accordance with Level 5 under the definition of
"Applicable Margin" or "Applicable Percentage", as the case may be; (c) if the
ratings established by S&P and Moody's shall fall within different levels, the
Applicable Margin and the Applicable Percentage shall be based upon the higher
rating unless (x) the lower rating is more than one level below the higher of
such ratings, in which case the Applicable Margin and the Applicable Percentage
shall be based on the rating that is one level above the lower rating or (y) the
rating agency that has in effect the lower rating has announced a negative
outlook, in which case the Applicable Margin and the Applicable Percentage shall
be based upon the lower rating; (d) if any rating established by S&P or Moody's
shall be changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such change; and
(e) if S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or
8
Moody's, as the case may be, shall refer to the then equivalent rating
by S&P or Moody's, as the case may be.
"RCRA" means the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., as in effect from time to time.
"Reference Banks" means Citibank, Dresdner Bank AG, New York
and Grand Cayman Branches and PNC Bank, N.A.
"Register" has the meaning specified in Section 8.07(d).
"Release" means a "release", as such term is defined in
CERCLA.
"Reportable Event" means a "reportable event" described in
Section 4043(c) of ERISA and the regulations thereunder for which the
30-day notice requirement has not been waived.
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Commitments.
"Revolving Credit Commitment" means, with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
the Schedule I hereto under the caption "Revolving Credit Commitment",
(b) if such Lender has become a Lender hereunder pursuant to an
Assumption Agreement, the amount of such Lender's "Revolving Credit
Commitment" set forth in such Assumption Agreement or (c) if such
Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Agent pursuant
to Section 8.07(d) as such Lender's "Revolving Credit Commitment", as
such amount may be reduced at or prior to such time pursuant to Section
2.06 or increased pursuant to Section 2.18.
"RWE AG" means, RWE AG, a corporation existing under the laws
of The Federal Republic of Germany.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"SEC" means the Securities and Exchange Commission (or any
government body or agency succeeding to the functions of such
Commission).
"Significant Subsidiary" means each Subsidiary listed on
Schedule II hereto (as such Schedule may be amended from time to time
in accordance with Section 5.01(a)(i)(E)) and any other direct or
indirect Subsidiary of the Borrower whose assets exceed 5% of the
consolidated assets of the Borrower and the Consolidated Subsidiaries
or whose revenues exceed 5% of the consolidated revenues of the
Borrower and the Consolidated Subsidiaries (in each case determined by
reference to the most recently available audited Consolidated financial
statements of the Borrower) or any other direct or indirect Subsidiary
of the Borrower so designated by the Borrower after the Effective Date.
"SMCRA" means the Federal Surface Mining Control and
Reclamation Act of 1977, as in effect from time to time.
"Subordination Agreement" means that certain subordination
agreement, substantially in the form of Exhibit E attached hereto (as
such may be amended, supplemented, restated or otherwise modified and
in effect from time to time).
"Subsidiary" of any Person means any other corporation,
partnership, joint venture, limited liability company, trust or estate
of which (or in which) more than 50% of (a) the outstanding shares of
capital stock of which having ordinary voting power for the election of
directors such corporation, (b) the
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interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries and,
except as otherwise indicated herein, references to Subsidiaries shall
refer to Subsidiaries of the Borrower.
"Subsidiary Guaranty" means that certain guaranty,
substantially in the form of Exhibit F attached hereto (as such may be
amended, supplemented, restated or otherwise modified and in effect
from time to time).
"Termination Date" means the earlier of (a) September 16, 2005
and (b) the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"Unused Commitment" means, with respect to each 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 Advances made
by such Lender (in its capacity as a Lender) and outstanding at such
time, plus (ii) such Lender's Pro Rata Share of (A) the aggregate
Available Amount of all the Letters of Credit outstanding at such time
and (B) the aggregate principal amount of all Advances made by each
Issuing Bank pursuant to Section 2.03(c) that have not been ratably
funded by such Lender and outstanding at such time.
"Welfare Plan" means a "welfare plan", as such term is defined
in section 3(1) of ERISA (other than a multiemployer plan as defined in
section 3(37) of ERISA), under which the Borrower or any Subsidiary may
have any liability, including any obligation to contribute.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle I of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
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".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances and Letters of Credit. (a)
Advances. Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to the Borrower from time to time on any Business
Day during the period from the Effective Date until the Termination Date in an
aggregate amount not to exceed at any time such Lender's Unused Commitment at
such time. Each Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall consist of Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Revolving Credit Commitments. Within the limits of each Lender's
Revolving Credit Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
(b) Letters of Credit. Each Issuing Bank agrees, on the
terms and conditions hereinafter set forth, to issue letters of credit (each, a
"Letter of Credit") for the account of the Borrower 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
issued by each Issuing Bank not to exceed at any time the lesser of (x) the
Letter of Credit Facility at such time and (y) such Issuing Bank's Letter of
Credit Commitment at such time and (ii) for each such Letter of Credit not to
exceed an amount equal to the Unused 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 10 Business Days
before the Termination Date. Within the limits referred to above,
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the Borrower may request the issuance of Letters of Credit under this Section
2.01(b), repay any 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(b).
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than (x) 11:00 A.M. (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 (y) 11:00 A.M. (New York
City time) on the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Agent, which shall give
to each Lender prompt notice thereof by telecopier or telex. Each such notice of
a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed promptly
in writing, or telecopier or telex 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,
and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Advance. Each Lender shall, before 1:00
P.M. (New York City time) on the date of such Borrowing make available for the
account of its Applicable Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000
or if the obligation of the Lenders to make Eurodollar Rate Advances shall then
be suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate
Advances may not be outstanding as part of more than eight separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, 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 such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the time of any Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Borrowing, the
Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) of this Section
2.02 and the 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 Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) 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. (i) Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed issuance of such Letter of
Credit (or such shorter period as may be agreed to by the applicable Issuing
Bank), by the Borrower to any Issuing Bank, and such Issuing Bank shall give the
Agent, prompt notice thereof by telex, telecopier or cable. Each such notice of
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issuance of a Letter of Credit (a "Notice of Issuance") shall be by telex,
telecopier or cable, confirmed promptly in writing, specifying therein the
requested (A) date of such issuance (which shall be a Business Day), (B)
Available Amount of such Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter of Credit and (E)
form of such Letter of Credit, and shall be accompanied by such application and
agreement for letter of credit as such Issuing Bank may reasonably specify to
the Borrower for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its sole discretion, 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) Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Share of the aggregate amount available to be drawn
under such Letter of Credit. The Borrower hereby agrees to each such
participation. In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Agent, for the
account of such Issuing Bank, such Lender's Pro Rata Share of each drawing made
under a Letter of Credit funded by such Issuing Bank and not reimbursed by the
Borrower on the date made, or of any reimbursement payment required to be
refunded to the Borrower for any reason. Each Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Revolving Credit Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(c) Drawing and Reimbursement. The payment by an Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by any such Issuing Bank of an Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by such Issuing Bank, with a copy of such demand to the Agent, each
Lender shall pay to the Agent such Lender's Pro Rata Share of such outstanding
Advance, by making available for the account of its Applicable Lending Office to
the Agent for the account of such Issuing Bank, by deposit to the Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Advance to be funded by such Lender. Promptly after
receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each
Lender agrees to fund its Pro Rata Share of an outstanding Advance on (i) the
Business Day on which demand therefor is made by such Issuing Bank, provided
that notice of such demand is given not later than 11:00 A.M. (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. If and to the extent
that any Lender shall not have so made the amount of such Advance available to
the Agent, such Lender agrees to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
any such Issuing Bank until the date such amount is paid to the 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 Agent such amount for the account of
any such Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute an Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall
furnish (A) to the Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such week under all Letters of Credit, (B) to
each Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit during the preceding month
and drawings during such month under all Letters of Credit and (C) to the 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.
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(e) Failure to Make Advances. The failure of any Lender to
make the 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 Advance on
such date, 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 such date.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Revolving Credit Commitment from the date hereof in the
case of each Initial Lender and from the effective date specified in the
Assumption Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing September 30, 2002, and on the Termination Date.
(b) Letter of Credit Fees (i) The Borrower shall pay to the
Agent for the account of each Lender a commission on such Lender's Pro Rata
Share of the average daily aggregate Available Amount of all Letters of Credit
outstanding from time to time at a rate per annum equal to the Applicable Margin
for Eurocurrency Rate Advances in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing September 30, 2002, and on the Termination Date.
(ii) The Borrower shall pay to each Issuing Bank, for its
own account, such commissions, issuance fees, fronting fees, transfer fees and
other fees and charges in connection with the issuance or administration of each
Letter of Credit as the Borrower and such Issuing Bank shall agree.
(c) Agent's Fees. The Borrower shall pay to the Agent for
its own account such fees as may from time to time be agreed between the
Borrower and the Agent.
SECTION 2.05. Optional Termination or Reduction of the
Commitments. The Borrower shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or permanently reduce ratably
in part the Unused Commitments of the Lenders, provided that each partial
reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
SECTION 2.06. Repayment of Advances. (a) The Borrower shall
repay to the Agent (whether from the proceeds of Advances made pursuant to
Section 2.01 of this Agreement or otherwise) for the ratable account of the
Lenders on the second Business Day after each drawing under a Letter of Credit
the aggregate principal amount of the Advances resulting from such drawing. The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Advances then
outstanding.
(b) 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 (it being understood
that any such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might acquire as a
result of the payment by any Lender of any draft or the reimbursement by the
Borrower thereof):
(i) any lack of validity or enforceability of this
Agreement, any Note, 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");
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the Borrower
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;
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(iii) the existence of any claim, set-off, defense or other
right that the Borrower 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,
any Agent, any Lender or any other Person, whether in connection with
the transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(iv) 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;
(v) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of the
Borrower in respect of the L/C Related Documents; or
(vii) 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 2.07. Interest on Advances. (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 (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time, 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 under Section 6.01(a), the Agent may, and
upon the request of the Required Lenders shall, require the Borrower to pay
interest ("Default Interest") on (i) the unpaid principal amount of each Advance
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, 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 hereunder 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 on Base Rate Advances pursuant to clause (a)(i)
above, provided, however, that following acceleration of the Advances pursuant
to Section 6.01, Default Interest shall accrue and be payable hereunder whether
or not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the 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 Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference
14
Banks. The Agent shall give prompt notice to the Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance 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 Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If the Borrower shall 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
Agent will forthwith so notify the Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Advances.
(d) 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.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance 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 Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) 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
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. The Borrower
may on any Business Day, upon notice given to the Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all 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 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(b) and no Conversion of any Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Advances. The Borrower may, upon
notice at least two Business Days' prior to the date of such prepayment, in the
case of Eurodollar Rate Advances, and not later than 11:00 A.M.
15
(New York City time) on the date of such prepayment, in the case of Base Rate
Advances, to the Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding 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 principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, the Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation 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 of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue
or of issuing or maintaining or participating in Letters of Credit (excluding
for purposes of this Section 2.11 any such increased costs resulting from (i)
Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii) 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 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 (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate as to the amount of such increased cost,
submitted to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority (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 or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder, irrespective of any right of counterclaim or
set-off, not later than 1:00 P.M. (New York City time) on the day when due in
U.S. dollars to the Agent at the Agent's Account in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or facility fees ratably (other than amounts
payable pursuant to Section 2.11, 2.14 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18,
and upon the Agent's receipt of such Lender's Assumption Agreement and recording
of the information contained therein in the Register, from and after the
applicable Increase Date, the Agent shall make all payments hereunder and under
any Notes issued in connection therewith in respect of the interest assumed
thereby to the Assuming Lender. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder and under
16
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to 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, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the 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 Letter of Credit commissions shall be made by the
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 Agent of an interest rate 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 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 Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to
or for the account of any Lender or the Agent hereunder or under the Notes or
any other documents to be delivered hereunder shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender'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 documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the 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 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 or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
any other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "Other Taxes").
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(c) The Borrower shall indemnify each Lender and the Agent for
and hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.14) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the 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 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 Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by
or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the Agent,
at such address, an opinion of counsel acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide each of the Agent and the Borrower with two original
Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates 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 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 form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers to
be confidential, the Lender 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 has failed to
provide the Borrower with the appropriate form, certificate or other document
described in Section 2.14(e) (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
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 shall not be entitled to
indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender 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 the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant
to this Section 2.14 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
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SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender 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, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Agent) to the effect that a Note is required
or appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a Note
payable to the order of such Lender in a principal amount up to the Revolving
Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
8.07(d) shall include a control account, and a subsidiary account for each
Lender, 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 Assumption Agreement and 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 hereunder
and (iv) the amount of any sum received by the Agent from the Borrower hereunder
and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender 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 and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender 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. 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) solely for general corporate purposes of the
Borrower and its Subsidiaries.
SECTION 2.18. Increase in the Aggregate Commitments. (a) The
Borrower may, at any time but in any event not more than three times in any
calendar year prior to the Termination Date, by notice to the Agent, request
that the aggregate amount of each of the Revolving Credit Commitments and the
Letter of Credit Commitments be increased by an amount of $10,000,000 or an
integral multiple thereof (each a "Commitment Increase") to be effective as of a
date that is at least 60 days prior to the scheduled Termination Date then in
effect (the "Increase Date") as specified in the related notice to the Agent;
provided, however that (i) in no event shall the aggregate amount of the
Revolving Credit Commitments or the Letter of Credit Commitments at any time
exceed $450,000,000 and (ii) on the date of any request by the Borrower for a
Commitment Increase and on the related Increase Date, the applicable conditions
set forth in Article III shall be satisfied.
(b) The Agent shall promptly notify the Lenders of a request by
the Borrower for a Commitment Increase, which notice shall include (i) the
proposed amount of such requested Commitment Increase,
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(ii) the proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount
of their respective Commitments (the "Commitment Date"). Each Lender that is
willing to participate in such requested Commitment Increase (each an
"Increasing Lender") shall, in its sole discretion, give written notice to the
Agent on or prior to the Commitment Date of the amount by which it is willing to
increase its Commitment. If the Lenders notify the Agent that they are willing
to increase the amount of their respective Commitments by an aggregate amount
that exceeds the amount of the requested Commitment Increase, the requested
Commitment Increase shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed between the Borrower and the Agent.
(c) Promptly following each Commitment Date, the Agent shall
notify the Borrower as to the amount, if any, by which the Lenders are willing
to participate in the requested Commitment Increase. If the aggregate amount by
which the Lenders are willing to participate in any requested Commitment
Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Borrower may extend offers to one or more Eligible Assignees
to participate in any portion of the requested Commitment Increase that has not
been committed to by the Lenders as of the applicable Commitment Date; provided,
however, that the Commitment of each such Eligible Assignee shall be in an
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts
an offer to participate in a requested Commitment Increase in accordance with
Section 2.18(b) (each such Eligible Assignee, an "Assuming Lender") shall become
a Lender party to this Agreement as of such Increase Date and the Commitment of
each Increasing Lender for such requested Commitment Increase shall be so
increased by such amount (or by the amount allocated to such Lender pursuant to
the last sentence of Section 2.18(b)) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase Date the
following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower or the Executive Committee of such Board
approving this Agreement after giving effect to the Commitment Increase
and (B) an opinion of counsel for the Borrower (which may be in-house
counsel), in substantially the form of Exhibit D hereto;
(ii) an assumption agreement from each Assuming Lender, if any,
in form and substance satisfactory to the Borrower and the Agent (each
an "Assumption Agreement"), duly executed by such Eligible Assignee,
the Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrower and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d), (x) the Agent shall
notify the Lenders (including, without limitation, each Assuming Lender) and the
Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex,
of the occurrence of the Commitment Increase to be effected on such Increase
Date and shall record in the Register the relevant information with respect to
each Increasing Lender and each Assuming Lender on such date and (y) the
Borrower shall deliver to the Agent notice as required under Section 2.10 to
prepay Advances, and a Notice of Borrowing under Section 2.02, in each case such
that after giving effect to such repayment and such Borrowing each of the
Lenders shall have made Advances ratably in proportion to their respective
Commitments after giving effect to the Commitment Increase.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
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(a) There shall have occurred no Material Adverse Change since
December 31, 2001.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Materially Adverse Effect other than
the matters described in Item 4.01(f) ("Litigation") of the Disclosure
Schedule or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them to
believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such access
to the management, records, books of account, contracts and properties of
the Borrower and its Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees of the Agent
and the Lenders and all accrued expenses of the Agent (including the
accrued fees and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving each Loan Document to
which it is or is to be a party, and of all documents evidencing
other necessary corporate action and governmental approvals, if
any, with respect to the Loan Documents.
(iii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to sign
each Loan Document to which it is or is to be a party and the
other documents to be delivered hereunder.
(iv) The Subsidiary Guaranty, duly executed by each Person
that is a Significant Subsidiary as of the Effective Date.
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(v) The Subordination Agreement duly executed by the Borrower
and each Subsidiary which, as of the Effective Date, is expected to
make any loans to any Guarantor.
(vi) A favorable opinion of Rowland H. Burns, Jr., Senior
Counsel for the Borrower, substantially in the form of Exhibit D
hereto and as to such other matters as any Lender through the Agent
may reasonably request.
(vii) A favorable opinion of Shearman & Sterling, counsel for the
Agent, in form and substance satisfactory to the Agent.
(i) The termination of the commitments of the lenders and the payment
in full of all Indebtedness outstanding under the $400,000,000 Amended and
Restated Senior Revolving Loan Agreement dated as of September 21, 2001
among the Borrower, the lenders parties thereto, Dresdner Bank AG, New York
and Grand Cayman Branches, Mellon Bank, N.A. and The Bank of Nova Scotia,
as syndication agents, and Citibank, N.A, as administrative agent. By
execution of this Agreement, each of the Lenders that is a lender under the
credit agreement referred to above hereby waives any requirement set forth
in such credit agreement of prior notice to the termination of their
commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Borrowing and Letter of
Credit Issuance. The obligation of each Lender to make an Advance on the
occasion of each Borrowing and the obligation of each Issuing Bank to issue a
Letter of Credit shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing or issuance (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing, Notice of Issuance and the acceptance by the Borrower of
the proceeds of such Borrowing or Letter of Credit shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
or such issuance such statements are true):
(i) the representations and warranties contained in Section 4.01 are
correct on and as of such date, before and after giving effect to such
Borrowing or such issuance and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the 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 shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
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 is a corporation validly organized and existing
and in good standing under the laws of the state of its incorporation, is
duly qualified to do business and in good standing as a foreign corporation
in each jurisdiction where the nature of its business makes such
qualification necessary and where the failure to so qualify would
reasonably be expected to have a Materially Adverse Effect and
22
has full power and authority to own and hold under lease its property and
conduct its business substantially as presently conducted by it. Each Loan
Party has full power and authority to enter into and to perform its
obligations under this Agreement and each Loan Document to which each is a
party and to obtain the Advances hereunder, in the case of the Borrower.
(b) The execution and delivery by each Loan Party of this Agreement
and each Loan Document executed by it and the performance by each of its
respective obligations hereunder and thereunder and the borrowings
hereunder by the Borrower have been duly authorized by all necessary
corporate action, do not require any Approval, do not and will not conflict
with, result in any violation of, or constitute any default under, any
provision of any Organic Document or material Contractual Obligation of
such Loan Party (or any other material Contractual Obligation) or any
present law or governmental regulation or court decree or order applicable
to any Loan Party and will not result in or require the creation or
imposition of any Lien in any of their respective properties pursuant to
the provisions of any Contractual Obligation.
(c) This Agreement is, and each Loan Document executed by any Loan
Party will on the due execution and delivery thereof be, the legal, valid
and binding obligation of such Loan Party enforceable in accordance with
its terms, subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in effect
affecting the enforceability of the rights of creditors generally, and by
general equitable principles.
(d) All balance sheets, statements of operations, of total owners'
equity and of changes in cash flows and other financial information of the
Borrower and the Consolidated Subsidiaries which have been or shall
hereafter be furnished by or on behalf of the Borrower for the purposes of
or in connection with this Agreement or any transaction contemplated hereby
pursuant to Section 5.01(a)(i) or Section 5.01(a)(ii) (except Section
5.01(a)(i)(C)) have been or will be prepared in accordance with GAAP
consistently applied throughout the periods involved (except as disclosed
therein), and, in the case of information relating to coal reserves, have
been or will be prepared in accordance with all relevant rules and
regulations promulgated by the SEC, as in effect from time to time, and do
or will present fairly the consolidated financial condition of the
corporations covered thereby as at the dates thereof and the results of
their operations for the periods then ended and the consolidated statements
of earnings, of operations and of total owners' equity, for each of the
fiscal periods then ended, of the Borrower and the Consolidated
Subsidiaries (or, in the case of any such balance sheets or statements
prepared prior to the date hereof, of the Borrower and its Consolidated
Subsidiaries). Since December 31, 2001, there has been no occurrence which,
individually or in the aggregate, would reasonably be expected to have a
Materially Adverse Effect. Except as disclosed in Item 4.01(f)
("Litigation") of the Disclosure Schedule, neither the Borrower nor the
Consolidated Subsidiaries have any material contingent liabilities
(including any liability pursuant to the Federal Black Lung Benefits Act of
1972, as in effect from time to time) not provided for or disclosed in the
financial statements of the Borrower and the Consolidated Subsidiaries most
recently delivered by or on behalf of the Borrower to the Lenders.
(e) Neither the Borrower nor any Subsidiary is in default,
(i) in the payment of (or in the performance of any material
obligation applicable to) any Indebtedness outstanding in a principal
amount exceeding $10,000,000 in the aggregate; or
(ii) under any law or governmental regulation or court decree or order
which would reasonably be expected to have a Materially Adverse Effect.
(f) Except as described in Item 4.01(f) ("Litigation") of the
Disclosure Schedule, no litigation, arbitration or governmental
investigation or proceeding against the Borrower or any Subsidiary or to
which any of the properties of any thereof is subject is pending or, to the
knowledge of the Borrower, threatened which would reasonably be expected to
result in a liability in excess of $10,000,000.
(g) Neither the Borrower nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying margin stock, and
23
less than 25% of the assets of each consists of margin stock. Proceeds of
Advances hereunder will be used in compliance with Regulation U of the
F.R.S. Board or any regulations substituted therefor. Terms for which
meanings are provided in Regulation U of the F.R.S. Board or any
regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
(h) Neither the Borrower nor any Subsidiary is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or 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", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(i) Neither the Borrower nor any Subsidiary is a party or subject to
any Contractual Obligation or Organic Document which would reasonably be
expected to have a Materially Adverse Effect.
(j) The Borrower and all Subsidiaries have filed all tax returns and
reports required by law to have been filed by them and have paid all taxes
and governmental charges thereby shown to be owing, except any such taxes
or charges which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on their books.
(k) During the twelve-consecutive-month period prior to the Effective
Date and prior to the date of any Borrowing hereunder, (a) no steps have
been taken to terminate any Pension Plan the assets of which are
insufficient to satisfy all benefit liabilities thereunder (as defined in
section 4001(a)(16) of ERISA) for which the Borrower or any Subsidiary
could be held liable, (b) no contribution failure has occurred with respect
to any Pension Plan sufficient to give rise to a Lien under section 302(f)
of ERISA and (c) none of the Borrower, any Subsidiary or any member of the
Controlled Group of any of them has incurred or is reasonably likely to
incur any Withdrawal Liability to any Multiemployer Plan. No condition
exists or event or transaction has occurred with respect to any Pension
Plan which might result in the incurrence by the Borrower or any Subsidiary
of any material liability, fine or penalty. Neither the Borrower nor any
Subsidiary has any contingent liability with respect to any post-retirement
benefit under a Welfare Plan, other than liability for continuation
coverage described in Part 6 of Subtitle B of Title I of ERISA.
(l) The Borrower has no other Subsidiaries or Significant
Subsidiaries except those identified in Item 4.01(l) ("Existing
Subsidiaries and Significant Subsidiaries") of the Disclosure Schedule or
those acquired or created subsequent to the date hereof.
(m) The Borrower and each Subsidiary owns and possesses all such
patents, patent rights, trademarks, trademark rights, trade names, trade
name rights, service marks, service mark rights and copyrights as the
Borrower considers necessary for the conduct of the businesses of the
Borrower or such Subsidiary as now conducted without any infringement upon
rights of others which would reasonably be expected to have a Materially
Adverse Effect. There is no individual patent or patent license used by the
Borrower or any Subsidiary in the conduct of its business the loss of which
would reasonably be expected to have a Materially Adverse Effect.
(n) The Borrower and each Subsidiary has good and marketable title to
or good leasehold interests in all of its material properties and assets,
real and personal, of any nature whatsoever, free and clear of all Liens
except as permitted pursuant to Section 5.02(b).
(o) All factual information heretofore or contemporaneously furnished
by the Borrower to the Agent or the Lenders in connection with execution
and delivery of this Agreement and the various transactions contemplated
hereby, as supplemented from time to time and when taken as a whole, to the
best of the Borrower's knowledge, has been, and all other such factual
information hereafter furnished by the Borrower or any Subsidiary, as
supplemented from time to time and when taken as a whole, will be, true and
accurate in every material respect on the date as of which such information
is dated or certified and as of the Effective Date and not incomplete by
omitting to state any material fact necessary to make such information not
misleading. All projections and pro forma financial information contained
in any materials furnished by the Borrower or any Subsidiary to the Lender
are based on good faith estimates and
24
assumptions by the management of the Borrower or the applicable Subsidiary, it
being recognized by the Lenders, however, that projections and statements as to
future events are not to be viewed as fact and that actual results during the
period or periods covered by any such projections or statements may differ from
the projected results and that the differences may be material.
(p) (i) No facility or property (including underlying groundwater)
owned or leased by the Borrower or any Significant Subsidiary is out of
compliance with any Environmental Law to the extent that such noncompliance,
either singly or in the aggregate, has or could reasonably be expected to have a
Materially Adverse Effect;
(ii) There are no pending or threatened
(A) claims, complaints, notices or requests for
information received by the Borrower or any Significant Subsidiary
with respect to any alleged violation of any Environmental Law, or
(B) complaints, notices or inquiries to the Borrower or
any Significant Subsidiary regarding potential liability under any
Environmental Law,
in each case, which singly, or in the aggregate, have or could reasonably
be expected to have a Materially Adverse Effect;
(iii) There have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by the Borrower or
any Significant Subsidiary that, singly or in the aggregate, have, or
could reasonably be expected to have, a Materially Adverse Effect;
(iv) The Borrower and the Significant Subsidiaries have been
issued and are in material compliance with all material permits,
certificates, approvals, licenses and other authorizations relating to
environmental matters and necessary or desirable for their businesses;
(v) No property now or previously owned or leased by the
Borrower or any Significant Subsidiary is listed or proposed for listing
(with respect to owned property only) (i) on the CERCLIS or on any
similar state list of sites requiring investigation or clean-up to the
extent that such listing relates to liabilities, individually or in the
aggregate, that could reasonably be expected to have a Materially Adverse
Effect, or (ii) on the National Priorities List pursuant to CERCLA;
(vi) There are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by the Borrower or any Significant Subsidiary
that, singly or in the aggregate, have, or could reasonably be expected
to have, a Materially Adverse Effect;
(vii) Neither the Borrower nor any Significant Subsidiary has
directly transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of federal,
state or local enforcement actions or other investigations which may lead
to material claims against the Borrower or such Significant Subsidiary
for any remedial work, damage to natural resources or personal injury,
including claims under CERCLA that, either singly or in the aggregate,
have, or could reasonably be expected to have, a Materially Adverse
Effect;
(viii) There are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the Borrower
or any Significant Subsidiary that,
25
singly or in the aggregate, have, or could reasonably be expected
to have, a Materially Adverse Effect;
(ix) No conditions exist at, on or under any property now or
previously owned or leased by the Borrower or any Significant
Subsidiary which, with the passage of time, or the giving of notice
or both, would give rise to liability under any Environmental Law
that, either singly or in the aggregate, have, or could reasonably
be expected to have, a Materially Adverse Effect; and
(x) Neither the Borrower nor any Subsidiary owns or leases
any "industrial establishment" (as such term is defined in the New
Jersey Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6,
et seq.) in the State of New Jersey.
(q) As of the date of this Agreement, the Borrower is and will
be Solvent. As used in this Section, "Solvent" means the Borrower is
able to pay its debts as they become due in the usual course of business.
(r) Any Advance hereunder will be pari passu with all of
Borrower's other unsecured Indebtedness for Borrowed Money.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder or any Letter of
Credit shall be outstanding, the Borrower will:
(a) Financial Information. The Borrower will furnish, or will
cause to be furnished, to the Agent (in sufficient copies for each
Lender) the following financial statements, reports and information:
(i) promptly when available and in any event within 90
days after the close of each Fiscal Year
(A) a balance sheet at the close of such Fiscal
Year, and statements of operations, of Total Owners' Equity
and of cash flows for such Fiscal Year, of the Borrower and
the Consolidated Subsidiaries certified without Impermissible
Qualification by independent public accountants of recognized
standing selected by the Borrower and reasonably acceptable
to the Lenders,
(B) a letter report of such accountants at the
close of such Fiscal Year to the effect that they have
reviewed the provisions of this Agreement and are not aware
of any Default hereunder (insofar as any Default may relate
to accounting matters) continuing at the end of such Fiscal
Year, except such Default, if any, as may be disclosed in
such statement,
(C) a certificate of an Authorized Officer of
the Borrower that no Default has occurred and is continuing,
or specifying any such Default and the actions, if any, being
taken by the Borrower with respect thereto,
(D) a notice that the Borrower is in compliance
with the requirements as stated under Section 5.02(l) Funded
Debt Ratio and Section 5.02(m) Interest Coverage Ratio,
setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.02(l) and (m); and
26
(E) an amended Schedule II to this Agreement
listing, as of the end of such Fiscal Year, each Significant
Subsidiary;
(ii) promptly when available and in any event within 45
days after the close of each of the first three Fiscal Quarters of
each Fiscal Year
(A) a balance sheet at the close of such Fiscal
Quarter and statements of operations, of total owners' equity
and of changes in cash flows for the period commencing at the
close of the previous Fiscal Year and ending with the close
of such Fiscal Quarter, of the Borrower and the Consolidated
Subsidiaries;
(B) a notice that the Borrower is in compliance
with the requirements as stated under Section 5.02(l) Funded
Debt Ratio and Section 5.02(m) Interest Coverage Ratio,
setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.02(l) and (m); and
(C) a certificate of an Authorized Officer of the
Borrower that no Default has occurred and is continuing, or
specifying any such Default and the actions, if any, being
taken by the Borrower with respect thereto,
(iii) promptly upon the incorporation or acquisition
thereof, information regarding the creation or acquisition of any
new Significant Subsidiary;
(iv) promptly after the sending or filing thereof, copies
of all quarterly and annual reports and proxy solicitations that
the Borrower sends to any of its securityholders, and copies of all
reports on Form 8-K that the Borrower files with the Securities and
Exchange Commission (other than reports on Form 8-K filed solely
for the purpose of incorporating exhibits into a registration
statement previously filed with the Securities and Exchange
Commission); and
(v) such other information with respect to the financial
condition, business, property, assets, revenues, and operations of
the Borrower and the Subsidiaries as any Lender may from time to
time reasonably request.
Reports required to be delivered pursuant to clauses (i)(A), (ii)
(A) and (iv) above shall be deemed to have been delivered on the date on which
such report is posted on the SEC's website at www.sec.gov, and such posting
shall be deemed to satisfy the reporting requirements of clauses (i)(A), (ii)(A)
and (iv) above; provided that in every instance the Borrower shall provide paper
copies of the certificate required by clauses (i)(C), (i)(D), (ii)(B) and
(ii)(C) above to the Agent and each of the Lenders until such time as the Agent
shall provide the Borrower written notice otherwise.
(b) Maintenance of Corporate Existences. Except as permitted by
Section 5.02(c), the Borrower will cause to be done at all times all things
necessary to maintain and preserve the corporate existences of the Borrower and
each Significant Subsidiary, and to comply in all material respects with all
applicable laws, rules, regulations and orders. Except as permitted by Section
5.02(c), the Borrower will continue to own and hold directly or indirectly, free
and clear of all Liens (except as permitted by Section 5.02(b)), all of the
outstanding ownership interest of each Subsidiary now owned or hereafter
acquired.
(c) Foreign Qualification. The Borrower will, and will cause
each Subsidiary to, cause to be done at all times all things necessary to be
duly qualified to do business and in good standing as a foreign corporation in
each jurisdiction where the nature of its business makes such qualification
necessary and where the failure to so qualify would reasonably be expected to
have a Materially Adverse Effect, and to comply in all material respects with
all applicable laws, rules, regulations and orders.
(d) Payment of Taxes. The Borrower will, and will cause each
Subsidiary to, pay and discharge, prior to becoming delinquent, all federal,
state and local taxes, assessments and other governmental charges or levies
against or on any of its property, as well as claims of any kind which, if
27
unpaid, might become a Lien in a material amount upon any of its properties;
provided, however, that the foregoing shall not require the Borrower or any
Subsidiary to pay or discharge any such tax, assessment, charge, levy or other
Lien so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves in
accordance with GAAP with respect thereto.
(e) Insurance. The Borrower will, and will cause each Subsidiary
to, maintain or cause to be maintained through self-insurance and with
responsible insurance companies insurance with respect to its properties and
business against such casualties and contingencies and of such types and in such
amounts as has been historically maintained by the Borrower and the
Subsidiaries, or which is consistent with sound business practice in the
reasonable opinion of the Borrower, and will, upon request of any Lender through
the Agent, furnish to the Agent at reasonable intervals a certificate of an
Authorized Officer setting forth the nature and extent of all insurance
maintained by the Borrower and the Subsidiaries in accordance with this Section.
(f) Notice of Default, Litigation. The Borrower will give prompt
notice (with a description in reasonable detail) to the Agent (in sufficient
copies for each Lender) of:
(i) the occurrence of any Default or any Event of Default;
(ii) the occurrence of any litigation, arbitration or
governmental investigation or proceeding not previously disclosed
by the Borrower to the Agent which has been instituted or, to the
knowledge of the Borrower, is threatened against the Borrower or
any Subsidiary or to which any of their respective properties is
subject which would reasonably be expected to result in a liability
to the Borrower or any Subsidiary not covered by the Borrower's or
such Subsidiary's insurers, as applicable, in excess of
$10,000,000;
(iii) any material development which shall occur in any
litigation, arbitration or governmental investigation or proceeding
previously disclosed by the Borrower to the Agent;
(iv) the occurrence of any event which would reasonably be
expected to have a Materially Adverse Effect;
(v) the occurrence of (A) a Reportable Event with respect
to any Pension Plan; (B) the institution of steps by the Borrower
or any Subsidiary or any member of the Controlled Group of any of
them to terminate, any Pension Plan where the unfunded liability is
in excess of $10,000,000; or (C) a partial or complete withdrawal
(as described in ERISA section 4203 or 4205) by the Borrower or any
Subsidiary or any member of the Controlled Group of any of them
from a Multiemployer Plan where the unfunded liability is in excess
of $10,000,000; and
(f) the occurrence of (A) the institution of any steps by
the PBGC to terminate any Pension Plan; (B) the failure to make a
required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA;
(C) the adoption of an amendment or the application for a funding
waiver that could result in a requirement that the Borrower or any
Subsidiary furnish a bond or other security to the PBGC or to a
Pension Plan pursuant to sections 306 or 307 of ERISA; (D) the
assertion of any claim with respect to any Pension Plan which
could, if determined adversely, result in the incurrence by the
Borrower or any Subsidiary of any material liability, fine or
penalty; or (E) any material increase in the contingent liability
of the Borrower or any Subsidiary with respect to post-retirement
benefits under any Welfare Plan, as determined under Financial
Accounting Standards Board No. 106.
(g) Performance of Loan Documents. The Borrower will, and will
cause each Loan Party to, perform promptly and faithfully all of its obligations
under each Loan Document executed by it.
28
(h) Books and Records. The Borrower will, and will cause each
Subsidiary to, keep books and records reflecting all of its business
affairs and transactions in accordance with GAAP and permit each Lender
or any of its representatives, at reasonable times and intervals and as
arranged through the Treasurer or chief legal officer of the Borrower, to
visit all of its offices, discuss its financial matters with its officers
and independent accountants, examine and photocopy extracts from (i) any
of its financial books and records and (ii) any of its other corporate
records other than such corporate records that are reasonably determined
by the Borrower to be proprietary.
(i) Subsidiary Guaranty. The Borrower agrees to promptly notify
the Agent each time a Subsidiary becomes a Significant Subsidiary and to
cause such Significant Subsidiary to deliver promptly to the Agent a duly
executed Subsidiary Guaranty along with an opinion of counsel and
certificates of the type required by Section 3.01(h)(ii) and (iii) all in
form and substance acceptable to the Agent.
(j) Environmental Covenant. The Borrower will, and will cause
each Significant Subsidiary to,
(i) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws;
(ii) immediately notify the Agent and provide copies upon
receipt of all material written claims, complaints, notices or
inquiries relating to the condition of its facilities and
properties or compliance with Environmental Laws, in each case
which involve or could reasonably be expected to involve
obligations of the Borrower or any Significant Subsidiary, as the
case may be, in excess of $10,000,000; and
(iii) provide such information and certifications which any
Lender through the Agent may reasonably request from time to time
to evidence compliance with this Section 5.01(j).
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder or any Letter of
Credit shall be outstanding, the Borrower will not:
(a) Indebtedness for Borrowed Money. The Borrower will not
permit any Subsidiary to incur or permit to exist any Indebtedness for
Borrowed Money, except (i) Indebtedness for Borrowed Money of any
Significant Subsidiary to the Borrower or any Subsidiary which is
subordinated to such Significant Subsidiary's obligations under the
Subsidiary Guaranty pursuant to a Subordination Agreement; (ii)
Indebtedness for Borrowed Money of any Subsidiary (other than a
Significant Subsidiary) to any other Subsidiary or to the Borrower (iii)
Indebtedness for Borrowed Money outstanding on the date hereof and listed
in Item 5.02(a)(iii) of the Disclosure Schedule and refinancings thereof;
provided that such Indebtedness for Borrowed Money is not increased as
the result of such refinancing; (iv) additional unsecured Indebtedness
for Borrowed Money of all Subsidiaries (other than Significant
Subsidiaries) not to exceed $25,000,000 in the aggregate at any one time
outstanding; (v) additional unsecured Indebtedness for Borrowed Money of
any Subsidiary acquired with such indebtedness existing at the time of
acquisition/merger of such Subsidiary and (vi) additional unsecured
Indebtedness for Borrowed Money of any Subsidiary permitted in accordance
with Section 5.02(i) hereof.
(b) Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or suffer to exist any Lien upon any
of its property or assets, whether now owned or hereafter acquired,
except:
(i) Liens in favor of the Agent for the benefit of the
Lenders;
29
(ii) Liens which were granted prior to the date hereof in (and
only in) assets identified in Item 5.02(a)(iii) ("Ongoing Indebtedness")
and Item 5.02(b)(ii) ("Liens") of the Disclosure Schedule;
(iii) Liens in (and only in) stock or assets permitted to be
acquired under the terms of this Agreement granted to secure Indebtedness
incurred at the time of such acquisition (or within one year thereof) to
finance the acquisition of such stock or assets; provided, that the
amount of Indebtedness secured thereby is not increased;
(iv) statutory and common law banker's Liens and rights of
setoff on bank deposits;
(v) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(vi) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not
overdue or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(vii) Liens incurred or existing in the ordinary course of
business, consistent with past practice and not to secure Indebtedness
for Borrowed Money, such as in connection with workers' compensation,
unemployment insurance or other forms of governmental insurance or
benefits, or to secure performance of tenders, statutory obligations,
leases and contracts entered into in the ordinary course of business or
to secure obligations on surety or appeal bonds;
(viii) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance;
(ix) Liens existing on any assets at the date of acquisition of
such assets permitted to be acquired under the terms of this Agreement
acquired after the date of this Agreement;
(x) Liens granted to secure Indebtedness incurred to refinance
any Indebtedness secured by Liens permitted by clauses (ii), (iii) and
(ix) of this Section 5.02(b); provided, that such Indebtedness is not
increased as the result of such refinancing and that such Liens attach
only to the same assets subject to Lien prior to the refinancing; and
(xi) other Liens granted to secure Indebtedness and Guarantees
made by the Borrower or any of its Subsidiaries in an aggregate amount of
not more than $50,000,000.
(c) Consolidation, Merger. The Borrower will not, and will not permit any
Subsidiary to, consolidate with or merge into or with any other corporation, or
sell, transfer, lease or sell and lease back or otherwise dispose of all or
substantially all of its assets to any Person, without prior written consent of
the Lenders, except for (i) the voluntary liquidation or dissolution of any
wholly-owned Subsidiary into another Subsidiary or into the Borrower, the merger
of any Person with a Subsidiary, provided that after giving effect to such
merger, such Subsidiary remains a "Subsidiary" as defined herein, or the merger
of any Subsidiary into another Subsidiary or into the Borrower provided that in
the case of any such merger into the Borrower, the Borrower is the surviving
corporation and (ii) the sale, transfer, lease or sale and lease back or other
disposition of all or substantially all of the assets of one or more
Subsidiaries not to exceed in any calendar year an aggregate total of 10% of the
consolidated assets of the Borrower and the Consolidated Subsidiaries.
30
(d) Transactions with Affiliates. The Borrower will not, and
will not permit any Significant Subsidiary to, enter into, or cause,
suffer or permit to exist any transaction, arrangement or contract with
any of its Affiliates (except for Significant Subsidiaries) which would
not be entered into by a prudent Person in the position of the Borrower
or such Subsidiary, or which is on terms which are not on an
arms-length basis.
(e) Sale or Discount of Receivables. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, sell
with recourse any of its notes or accounts receivable in excess of
$200,000,000 in the aggregate at any one time, other than those arising
from the export outside of the United States of goods or services.
(f) Dividends. The Borrower shall not pay any dividends to its
respective shareholders upon the occurrence, or during the continuance
of, any Default. No dividend shall be paid by Borrower other than in
accordance with all applicable provisions of law including, without
limitation, the Delaware General Corporation Law, as amended.
(g) Inconsistent Agreements. The Borrower will not, and will
not permit any Subsidiary to, enter into any agreement containing any
provision which would be violated or breached by any borrowing by the
Borrower made hereunder or by the performance by the Borrower or any
other Loan Party of their respective obligations hereunder or under any
Loan Document.
(h) Advances, Loans and Investments. The Borrower will not,
and will not permit any Subsidiary to, make or permit to remain
outstanding any loan or advance to, or own, purchase or acquire any
stock, obligations or securities of, or any other interest in, or make
any capital contribution to, any Person, except:
(i) advances or extensions of credit on terms customary
in the industry involved in the form of accounts or other
receivables incurred, and investments, Advances and advances made
in settlement of such accounts receivable, all in the ordinary
course of business;
(ii) Permitted Investments;
(iii) investments, loans or advances to or in the Borrower
or in any Subsidiary;
(iv) loans or advances to employees of the Borrower or
any Subsidiary in the ordinary course of their respective
businesses, consistent with past practices, not to exceed
$1,000,000 in aggregate amount at any time outstanding;
(v) investments customarily used in the management of
employee benefit trust funds; and
(vi) other investments not exceeding $100,000,000 in the
aggregate at any time outstanding.
(i) Guaranties. Except as described in Item 5.02(i)
("Guaranties") of the Disclosure Schedule, neither the Borrower nor any
Subsidiary will enter into any Guaranty prior to the Termination Date,
except for
(i) Guaranties relating to operating and capital leases
on which the Borrower or such Subsidiary is lessee;
(ii) any Subsidiary Guaranty;
31
(iii) Guaranties (other than Guaranties described in
clause (ii) of this Section 5.02(i) and Guaranties described
in Item 5.02(i) of the Disclosure Schedule) not to exceed
$50,000,000 in aggregate amount at any time outstanding of
Indebtedness for Borrowed Money;
(iv) contingent obligations arising or existing as
the result of the sale or other disposition of assets;
(v) Guaranties by the Borrower of any Indebtedness
for Borrowed Money of any Subsidiary permitted under Section
5.02(a);
(vi) Guaranties by the Borrower not to exceed
$50,000,000 in aggregate amount at any time outstanding of any
obligations of Affiliates other than Indebtedness for Borrowed
Money;
(vii) Guarantees by the Borrower or any Subsidiary
of any obligation of the Borrower, any Subsidiary or other
Guarantor incurred or existing in the ordinary course of
business, consistent with past practice and not to secure
Indebtedness for Borrowed Money other than Commercial Paper
Indebtedness, such as in connection with workers'
compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, leases and contracts
entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(viii) Guarantees relating to Commercial Paper
Indebtedness; and
(ix) Guarantees by any Subsidiary of any obligation
of the Borrower provided that such Subsidiary has duly
executed and delivered a Subsidiary Guaranty.
(j) Securities. The Borrower will not, and will not
permit any Subsidiary to, make any distributions, redemptions,
prepayments, defeasances or repurchases of its securities upon the
occurrence or during the continuance of any Default. The Borrower will
not permit any Significant Subsidiary to issue any capital stock to any
Person other than any other Significant Subsidiary or the Borrower.
(k) Business Activities. The Borrower will not, and will
not permit any Significant Subsidiary to:
(i) operate its business other than in the
ordinary and usual course; and
(ii) engage in any type of business except the
businesses of the type or substantially related to the type so
operated by the Borrower or such Significant Subsidiary on the
Effective Date.
(l) Funded Debt Ratio. The Borrower shall maintain a
ratio of the Borrower's total Indebtedness for Borrowed Money as at the
last day of each calendar quarter to total earnings for the last four
consecutive complete calendar quarters (before interest, taxes,
depreciation and amortization and excluding any extraordinary gains or
losses) of not more than 3.25:1 until December 31, 2002 and 3.0:1
thereafter.
(m) Interest Coverage Ratio. The Borrower shall maintain
a ratio of the Borrower's total earnings for the last four consecutive
complete calendar quarters (before interest, taxes, depreciation and
amortization and excluding any extraordinary gains or losses) to the
total interest payable on, and amortization of debt discount in respect
of, all Indebtedness for Borrowed Money for the last four consecutive
complete calendar quarters of not less than 4.5:1.
ARTICLE VI
32
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Non-Payment of Liabilities. The Borrower shall default in the
payment or prepayment when due, whether at stated maturity, by
acceleration, or otherwise, of any principal of any Advance, or the
Borrower shall default (and such default shall continue unremedied for a
period of three days) in the payment when due, whether at stated maturity,
by acceleration, or otherwise, of interest on any Advance, of any fee or of
any other Liability.
(b) Non-Performance of Certain Covenants. The Borrower shall default
in the due performance and observance of any of its obligations under
Section 5.01 of this Agreement and such default shall continue unremedied
for 10 days after notice thereof shall have been given to the Borrower by
the Agent or any Lender or the Borrower shall default in the due
performance and observance (unless such default is capable of remedy and is
remedied to the satisfaction of the Required Lenders within 10 days of such
default) of any of its obligations under Section 5.02 of this Agreement.
(c) Certain Defaults on Other Indebtedness for Borrowed Money. Any
default shall occur under the terms applicable to any Indebtedness for
Borrowed Money outstanding in a principal amount exceeding individually or
in the aggregate $25,000,000 of the Borrower or any Significant Subsidiary
representing any borrowing or financing or arising under any other lease or
material agreement, and such default shall:
(i) consist of the failure to pay Indebtedness for Borrowed
Money at the maturity thereof; or
(ii) continue without being cured or waived (so long as such
cure or waiver did not involve any payment of principal of such
Indebtedness for Borrowed Money) for a period of time sufficient to
permit acceleration of Indebtedness for Borrowed Money.
(d) Bankruptcy, Insolvency. The Borrower or any Significant
Subsidiary shall become insolvent or generally fail to pay, or admit in
writing its inability to pay, debts as they become due; or the Borrower or
any Significant Subsidiary shall apply for, consent to, or acquiesce in,
the appointment of a trustee, receiver, sequestrator or other custodian for
the Borrower or such Significant Subsidiary or any property of any thereof,
or make a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver,
sequestrator or other custodian shall be appointed for the Borrower or any
Significant Subsidiary or for a substantial part of the property of any
thereof and not be discharged within 60 days; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, shall be commenced in respect of the Borrower or any
Significant Subsidiary, and, if such case or proceeding is not commenced by
the Borrower or such Significant Subsidiary, such case or proceeding shall
be consented to or acquiesced in by the Borrower or such Significant
Subsidiary or shall result in the entry of an order for relief or shall
remain for 60 days undismissed; or the Borrower or any Significant
Subsidiary shall take any corporate action to authorize, or in furtherance
of, any of the foregoing.
(e) Control of the Borrower. Any Change in Control shall occur on or
after the Effective Date.
(f) Non-Performance of Other Obligations. Any Loan Party shall
default in the due performance and observance of any other agreement,
applicable to it, contained in this Agreement or in any other Loan
Document, and such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to the Borrower by the
Agent or any Lender.
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(g) Breach of Representation or Warranty. Any representation or
warranty of any Loan Party in any Loan Document or in any writing
furnished after the date of this Agreement by or on behalf of any Loan
Party for the purposes of or in connection with this Agreement is or shall
be incorrect in any material respect when made or deemed made.
(h) Pension Plans. Any of the following events shall occur with
respect to any Pension Plan
(i) the institution of any steps by the Borrower, any
Subsidiary, any member of the Controlled Group of any of them or any
other Person to terminate a Pension Plan if, as a result of such
termination, the Borrower or any such member could be required to make
a contribution to such Pension Plan, or could reasonably expect to
incur a liability or obligation, in excess of $25,000,000; or
(ii) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
(i) Judgments. A final judgment to the extent not covered by
insurance that, with other such outstanding final judgments against the
Borrower and the Subsidiaries exceeds an aggregate of $10,000,000 shall
be rendered against the Borrower or any Subsidiary and if, within 60 days
after entry thereof, such judgment shall not have been discharged or
otherwise satisfied or execution thereof stayed pending appeal, or if,
within 60 days after the expiration of any such stay, such judgment shall
not have been discharged or otherwise satisfied.
(j) Subsidiary Guaranty and Subordination Agreement. The Subsidiary
Guaranty or any Subordination Agreement shall cease to be in full force
and effect or any Loan Party or any Person by, through or on behalf of
any Loan Party shall contest in any manner in writing the validity,
binding nature or enforceability of either the Subsidiary Guaranty or any
Subordination Agreement.
(k) Multiemployer Plans. The Borrower, any Subsidiary or any member
of the Controlled Group of any of them shall incur, or shall be reasonably
likely to incur liability in excess of $10,000,000 in the aggregate as a
result of one or more of the following: (i) the partial or complete
withdrawal of the Borrower, any Subsidiary or any member of the Controlled
Group of any of them from a Multiemployer Plan; or (ii) the reorganization
or termination of a Multiemployer Plan.
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.02(b)) and of the Issuing Banks 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, by notice to the Borrower, declare the Advances, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Advances, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than
Advances by an Issuing Bank or a Lender pursuant to Section 2.02(b)) and of the
Issuing Banks to issue Letters of Credit shall automatically be terminated and
(B) the Advances, 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
Agent may with the consent, 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, (a) pay to the Agent on behalf of the Lenders in same
day funds at the Agent's office designated in such demand, for deposit in the
L/C Cash Collateral Account, an amount equal to the aggregate Available Amount
of all Letters of Credit then outstanding or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the
Required Lenders. If at any time the Agent determines that any funds held in the
L/C Cash Collateral Account are subject to
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any right or claim of any Person other than the Agent and the Lenders 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 Agent,
pay to the Agent, as additional funds to be deposited and held in the L/C Cash
Collateral 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 the
L/C Cash Collateral Account that the Agent determines to be free and clear of
any such right and claim. Upon the drawing of any Letter of Credit, to the
extent funds are on deposit in the L/C Cash Collateral Account, such funds shall
be applied to reimburse the Issuing Banks to the extent permitted by applicable
law.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender (in its capacities
as a Lender and Issuing Bank (as applicable)) hereby appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not 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 Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the 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 this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower), 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; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or the existence at any
time of any Default or to inspect the property (including the books and records)
of the Borrower; (v) shall not be responsible to any Lender 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, this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment,
the Advances made by it and the Note issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its 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, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders. The Agent shall have no
duty to disclose information obtained or received by it or any of its Affiliates
relating to the Borrower or its Subsidiaries to the extent such information was
obtained or received in any capacity other than as Agent.
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SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender 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 also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Advances then owed to each of them (or if no
Advances are at the time outstanding, ratably according to the respective
amounts of their Revolving Credit Commitments), from and against 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 the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement (collectively, the "Indemnified Costs"), provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such 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 the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Borrower) from and against such
Lender'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 any such Issuing Bank in any way
relating to or arising out of this Agreement or any action taken or omitted by
such Issuing Bank hereunder or in connection herewith; provided, however, that
no Lender 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 or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender agrees to
reimburse any 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 Lenders' 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 Lenders, (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 Commitments at such time; provided that
the aggregate principal amount of Advances owing to the Issuing Banks as a
result of drawings under Letters of Credit shall be considered to be owed to the
Lenders ratably in accordance with their respective Revolving Credit
Commitments. The failure of any Lender to reimburse the Agent or any such
Issuing Bank, as the case may be, promptly upon demand for its ratable share of
any amount required to be paid by the Lenders to the Agent or such Issuing Bank,
as the case may be, as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Agent or such Issuing Bank, as the case
may be, for its ratable share of such amount, but no Lender shall be responsible
for the failure of any other Lender to reimburse the Agent or any such Issuing
Bank, as the case may be, for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the Notes.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required
36
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent. If no successor Agent 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 Lenders, appoint a successor Agent, which shall be a commercial
Lender organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
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 under this Agreement.
SECTION 7.07. Other Agents. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof has any liability hereunder other than in its
capacity as a Lender.
SECTION 7.08. Acknowledgements. The Borrower and each Guarantor
hereby acknowledge that neither the Agent nor the Lead Arranger nor any Arranger
nor any Lender has any fiduciary relationship with the Borrower or any Guarantor
under this Agreement, and the relationship under this Agreement between the
Lenders, on one hand, and the Borrower and Guarantors, on the other hand, is
solely that of debtor and creditor.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed 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 no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders, (c) reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (d) postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Revolving Credit
Commitments, the aggregate Available Amount of outstanding Letters of Credit or
of the aggregate unpaid principal amount of the Advances, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder, (f) release any Significant Subsidiary from its obligations
under the Subsidiary Guaranty or release any Person from its obligations under
the Subordination Agreement (provided that no consent of the Lenders shall be
required in connection with the any release of a Subsidiary from its obligations
under the Subsidiary Guaranty or the Subordination Agreement if such Subsidiary
is not listed on Schedule II hereto (as such Schedule is amended from time to
time in accordance with Section 5.01(a)(i)(E)) or (g) amend this Section 8.01;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any Note; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Banks in addition to the Lenders
required above to take such action, affect the rights or obligation of the
Issuing Banks under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Borrower, at its address at CONSOL Plaza, 1800 Washington Road,
Pittsburgh, Pennsylvania 15241-1421, Attention: Treasury (Fax. No. 412 831-4151;
if to any Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its address at Two
Penns Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications
Department; or, as to the Borrower or the Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
37
company or confirmed by telex answerback, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the 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 a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) 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 Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or (ii) the actual or alleged presence of Hazardous Materials on
any property of the Borrower or any of its Subsidiaries or any Environmental
Action relating in any way to the Borrower or any of its Subsidiaries, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. 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 the Borrower, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) 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 other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12,
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 other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, 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 to fund or maintain such Advance.
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(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender 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 this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender 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 Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower (following a demand by such Lender pursuant to
Section 2.11 or 2.14) upon at least five Business Days' notice to such Lender
and the Agent, will assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement, (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender or an assignment
of all of a Lender's rights and obligations under this Agreement, the amount of
the Revolving Credit Commitment of the assigning Lender 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
$10,000,000 or an integral multiple of $1,000,000 in excess thereof unless the
Borrower and the Agent otherwise agree, (iii) each assignee (other than an
Affiliate of the assigning Lender) must be acceptable to the Borrower and the
Agent, whose consent shall not be unreasonably withheld, and the Agent's and the
Borrower's decisions respecting the same shall be made promptly, provided that
the Borrower's consent shall not be required if an Event of Default has occurred
and is continuing, (iv) each such assignment made as a result of a demand by the
Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower
after consultation with the 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 as a result of a demand by
the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
(x) in the case of each assignment made as a result of a demand by the Borrower,
such recordation fee shall be payable by the Borrower except that no such
recordation fee shall be payable in the case of an assignment made at the
request of the Borrower to an Eligible Assignee that is an existing Lender and
(y) no such recordation fee shall be payable in the case of an assignment made
to an Affiliate of the assigning Lender. Upon such execution, delivery,
acceptance and recording, from and after the effective date
39
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Section 2.11, 2.14 and 8.04 to the extent any claim thereunder
relates to an event arising prior such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the 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, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (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 the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender or as an Issuing Bank, as the case may be.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the 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.
(d) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender 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 Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower 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 Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Revolving Credit
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or
40
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or 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.
(f) Any Lender 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
by or on behalf of the Borrower; provided 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 relating to the
Borrower received by it from such Lender.
(g) Each Issuing Bank may assign to an Eligible Assignee its
rights and obligations or any portion of the undrawn Letter of Credit Commitment
at any time; provided, however, that (i) 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 $1,000,000 or an
integral multiple of $1,000,000 in excess thereof, and (ii) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any 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.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking or
other regulator or auditor and (d) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder.
SECTION 8.09. 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 8.10. 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 a manually executed
counterpart of this Agreement.
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 City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, 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 extent permitted by law,
in such federal court. In addition, if any Indemnified Party is named as a
defendant or other party in connection herewith or with the Advances in another
jurisdiction or proceeding, such Indemnified Party may name the Borrower as a
defendant or third party defendant in any such proceeding, and the Borrower
hereby consents to jurisdiction and service of process by mail in any such
jurisdiction or proceeding. The Borrower hereby agrees that service of process
in any such action or proceeding brought in the any such New York State court or
in such federal court may be made upon CT Corporation System at its offices at
1633 Broadway, New York, New York 10019 (the "Process Agent") and the Borrower
hereby irrevocably appoints the Process Agent its authorized agent to accept
such service of process, and agrees that the failure of the Process Agent to
give any notice of any
41
such service shall not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based thereon. The Borrower hereby
further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to the Borrower at its address
specified pursuant to Section 8.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
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. 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
an 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 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 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 8.12.5. Severability. If any provision of this Agreement
or the other Loan Documents is held to be illegal, invalid or unenforceable, (a)
the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
42
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby 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 this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CONSOL ENERGY INC.
By __________________________
Title:
CITIBANK, N.A.,
as Agent
By __________________________
Title:
Initial Issuing Bank
PNC BANK, N.A.
By __________________________
Title:
Initial Lenders
Administrative Agent
CITIBANK, N.A.
By __________________________
Title:
Syndication Agents
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By __________________________
Title:
By __________________________
Title:
43
PNC BANK, N.A.
By __________________________
Title:
Managing Agents
THE BANK OF NOVA SCOTIA
By __________________________
Title:
BARCLAYS BANK PLC
By __________________________
Title:
BAYERISCHE HYPO- UND VEREINSBANK
AG, NEW YORK BRANCH
By __________________________
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By __________________________
Title:
Lenders
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED BANK, N.A.
By __________________________
Title:
NATIONAL CITY BANK
By __________________________
Title:
44
SCHEDULE I
CONSOL ENERGY INC.
THREE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
- -----------------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Revolving Letter of Domestic Lending Office Eurodollar Lending Office
- ---------------------- ---------- ---------- ----------------------- -------------------------
Credit Credit
------- ------
Commitment Commitment
---------- ----------
- -----------------------------------------------------------------------------------------------------------------------------
Australia and New $ 22,000,000 Attn: Tessie Amance/ Attn: Tessie Amance/
Zealand Banking Group Doreen Klingenbeck Doreen Klingenbeck
Limited T: 212 801-9744/9726 T: 212 801-9744/9726
F: 212 536-9244 F: 212 536-9244
- -----------------------------------------------------------------------------------------------------------------------------
Barlcays Bank PLC $ 27,500,000 222 Broadway 222 Broadway
New York, NY 10038 New York, NY 10038
Attn: Jesse Adams Attn: Jesse Adams
T: 212 412-2470 T: 212 412-2470
F: 212 412-5306 F: 212 412-5306
- -----------------------------------------------------------------------------------------------------------------------------
Bayerische Hypo- und $ 27,500,000 150 East 42/nd/ Street 150 East 42/nd/ Street
Vereinsbank AG, New York 31/st/ Floor 31/st/ Floor
Branch New York, NY 10017 New York, NY 10017
Attn: Tom Taylor Attn: Tom Taylor
T: 212 672-5872 T: 212 672-5872
F: 212 672-5529 F: 212 672-5529
- -----------------------------------------------------------------------------------------------------------------------------
Bank of Nova Scotia $ 27,500,000 Attn: Demetria January Attn: Demetria January
T: 404 877-1578 T: 404 877-1578
F: 404 888-8998 F: 404 888-8998
- -----------------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $ 44,000,000 Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
Attn: Diane Stewart Attn: Diane Stewart
T: 302 894-6035 T: 302 894-6035
F: 212 994-0847 F: 212 994-0847
- -----------------------------------------------------------------------------------------------------------------------------
Dresdner Bank AG, New $ 38,500,000 1301 Avenue of the Americas 1301 Avenue of the Americas
York and Grand Cayman New York, NY 10019 New York, NY 10019
Branches Attn: Dominik Rohe Attn: Dominik Rohe
T: 212 895-5154 T: 212 895-5154
F: 212 429-4817 F: 212 429-4817
- -----------------------------------------------------------------------------------------------------------------------------
National City Bank $ 13,750,000 20 Stan Wix Street 20 Stan Wix Street
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attn: Elise Jackson Attn: Elise Jackson
T: 412 644-8886 T: 412 644-8886
F: 412 644-7555 F: 412 644-7555
- -----------------------------------------------------------------------------------------------------------------------------
PNC Bank, N.A. $ 38,500,000 $266,750,000 One PNC Plaza One PNC Plaza
3/rd/ Floor 3/rd/ Floor
249 Fifth Avenue 249 Fifth Avenue
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attn: R. Kane Kiester Attn: R. Kane Kiester
T: 412 762-4221 T: 412 762-4221
F: 412 705-3231 F: 412 705-3231
- -----------------------------------------------------------------------------------------------------------------------------
Westdeutsche Landesbank $ 27,500,000 1211 Avenue of the Americas 1211 Avenue of the Americas
Girozentrale, New York New York, NY 10036 New York, NY 10036
Branch Attn: Dan Palermo Attn: Dan Palermo
T: 2121 852-6157 T: 2121 852-6157
F: 212 302-7946 F: 212 302-7946
- -----------------------------------------------------------------------------------------------------------------------------
Total: $266,750,000 $266,750,000
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, CONSOL Energy Inc., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY without set-off or
counterclaim to the order of _________________________ (the "Lender") for the
account of its Applicable Lending Office on the Termination Date (each as
defined in the Credit Agreement referred to below) the principal sum of
U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Advances made by the Lender to the Borrower pursuant to
the Three Year Credit Agreement dated as of September 16, 2002 among the
Borrower, the Lender and certain other lenders parties thereto, Dresdner Bank
AG, New York and Grand Cayman Branches and PNC Bank, N.A., as syndication
agents, Salomon Smith Barney Inc., as sole lead arranger and bookrunner, and
Citibank, N.A. as Agent for the Lender and such other lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, as Agent, at Two Penns Way, New Castle, Delaware
19720, in same day funds. Each Advance owing to the Lender by the Borrower
pursuant to the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
CONSOL ENERGY INC.
By ___________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------------------------
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
2
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, CONSOL Energy Inc., refers to the Three Year Credit
Agreement, dated as of September 16, 2002 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto,
Dresdner Bank AG, New York and Grand Cayman Branches and PNC Bank, N.A., as
syndication agents, Salomon Smith Barney Inc., as sole lead arranger and
bookrunner, and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
200_.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
Very truly yours,
CONSOL ENERGY INC.
By __________________
Title:.
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Three Year Credit Agreement dated as of
September 16, 2002 (as amended or modified from time to time, the "Credit
Agreement") among CONSOL Energy Inc., a Delaware corporation (the "Borrower"),
the Lenders and Initial Issuing Banks (each as defined in the Credit Agreement),
Dresdner Bank AG, New York and Grand Cayman Branches and PNC Bank, N.A., as
syndication agents, Salomon Smith Barney Inc., as sole lead arranger and
bookrunner, and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement together with
participations in Letters of Credit held by the Assignor on the date hereof.
After giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Advances owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the 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, the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iv) attaches the Note[, if
any,] held by the Assignor [and requests that the Agent exchange such Note for a
new Note payable to the order of [the Assignee in an amount equal to the
Revolving Credit Commitment assumed by the Assignee pursuant hereto or new Notes
payable to the order of the Assignee in an amount equal to the Revolving Credit
Commitment assumed by the Assignee pursuant hereto and] the Assignor in an
amount equal to the Revolving Credit Commitment retained by the Assignor under
the Credit Agreement[, respectively,] as specified on Schedule 1 hereto] and (v)
represents and warrants that this Assignment and Acceptance is its legal, valid
and binding obligation enforceable in accordance with its terms, subject, as to
enforcement, only to bankruptcy, insolvency, reorganization, moratorium or other
similar laws at the time in effect affecting the enforceability of the rights of
creditors generally, and by general equitable principles.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; (vi) attaches
any U.S. Internal Revenue Service forms required under Section 2.14 of the
Credit Agreement and (vii) represents and warrants that this Assignment and
Acceptance is its legal, valid and binding obligation enforceable in accordance
with its terms, subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in effect affecting
the enforceability of the rights of creditors generally, and by general
equitable principles.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and facility fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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 Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Revolving Credit Commitment: $______
Aggregate outstanding principal amount of Advances assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By __________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By __________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
- --------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By ____________________________________
Title:
[Approved this __________ day
of _______________, 200_
CONSOL ENERGY INC.
By ____________________________________
Title:
- --------------
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
4
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[To come]
EXECUTION COPY
U.S. $266,750,000
THREE YEAR CREDIT AGREEMENT
Dated as of September 16, 2002
Among
CONSOL ENERGY INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
PNC BANK, N.A.
as Initial Issuing Bank
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
and
PNC BANK, N.A.
as Syndication Agents
and
SALOMON SMITH BARNEY INC.
as Sole Lead Arranger and Bookrunner
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
---------------------
SECTION 1.02. Computation of Time Periods 10
---------------------------
SECTION 1.03. Accounting Terms 10
----------------
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 10
----------------------------------
SECTION 2.02. Making the Advances 11
-------------------
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 11
------------------------------------------------------------------
SECTION 2.04. Fees 13
----
SECTION 2.05. Termination or Reduction of the Commitments 13
-------------------------------------------
SECTION 2.06. Repayment of Advances 13
---------------------
SECTION 2.07. Interest on Advances 14
--------------------
SECTION 2.08. Interest Rate Determination 14
---------------------------
SECTION 2.09. Optional Conversion of Advances 15
-------------------------------
SECTION 2.10. Prepayments of Advances 15
-----------------------
SECTION 2.11. Increased Costs 16
---------------
SECTION 2.12. Illegality 16
----------
SECTION 2.13. Payments and Computations 16
-------------------------
SECTION 2.14. Taxes 17
-----
SECTION 2.15. Sharing of Payments, Etc. 19
-------------------------
SECTION 2.16. Evidence of Debt 19
----------------
SECTION 2.17. Use of Proceeds 19
---------------
SECTION 2.18. Increase in the Aggregate Commitments 19
-------------------------------------
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 20
-----------------------------------------------------
SECTION 3.02. Conditions Precedent to Each Borrowing and Letter of Credit Issuance. 22
--------------------------------------------------------------------
SECTION 3.03. Determinations Under Section 3.01 22
---------------------------------
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower 22
----------------------------------------------
ARTICLE V
SECTION 5.01. Affirmative Covenants 26
---------------------
SECTION 5.02. Negative Covenants 29
------------------
ARTICLE VI
SECTION 6.01. Events of Default 33
-----------------
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 34
--------------------------------------------------------
ARTICLE VII
SECTION 7.01. Authorization and Action 35
------------------------
SECTION 7.02. Agent's Reliance, Etc. 35
----------------------
SECTION 7.03. Citibank and Affiliates 35
-----------------------
SECTION 7.04. Lender Credit Decision 36
----------------------
SECTION 7.05. Indemnification 36
---------------
SECTION 7.06. Successor Agent 36
---------------
SECTION 7.07. Other Agents. 37
------------
SECTION 7.08. Acknowledgements. 37
-----------------
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 37
----------------
SECTION 8.02. Notices, Etc. 37
-------------
SECTION 8.03. No Waiver; Remedies 38
-------------------
SECTION 8.04. Costs and Expenses 38
------------------
ii
SECTION 8.05. Right of Set-off 39
----------------
SECTION 8.06. Binding Effect 39
--------------
SECTION 8.07. Assignments and Participations 39
------------------------------
SECTION 8.08. Confidentiality 41
---------------
SECTION 8.09. Governing Law 41
-------------
SECTION 8.10. Execution in Counterparts 41
-------------------------
SECTION 8.11. Jurisdiction, Etc. 41
-----------------
SECTION 8.12. No Liability of the Lenders as Letter of Credit Issuers 42
-------------------------------------------------------
SECTION 8.12.5. Severability 42
-----------
SECTION 8.13. Waiver of Jury Trial 43
--------------------
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule II - Significant Subsidiaries
Schedule III - Permitted Investments
Disclosure Schedule
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Subordination Agreement
Exhibit F - Form of Subsidiary Guaranty
iv