EXHIBIT 10.27
364-DAY 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") 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 Applicable Margin Applicable Margin Applicable Margin
for for for for
Eurodollar Rate Eurodollar Rate Base Rate Base Rate
Advances Prior to Advances On and Advances Prior to Advances On and
Term Loan After Term Loan Term Loan After Term Loan
Conversion Date Conversion Date Conversion Date Conversion Date
- ----------------------------------------------------------------------------------------------------------
Level 1
- -------
A- or A3 or above 0.825% 1.250% 0.000% 0.425%
- ----------------------------------------------------------------------------------------------------------
Level 2
- -------
BBB+ or Baa1 1.150% 1.875% 0.250% 0.975%
- ----------------------------------------------------------------------------------------------------------
Level 3
- -------
BBB or Baa2 1.225% 2.000% 0.375% 1.150%
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
Level 4
- -------
BBB- or Baa3 1.400% 2.500% 0.500% 1.550%
- ----------------------------------------------------------------------------------------------------------
Level 5
- -------
Lower than Level 4 1.600% 2.750% 1.000% 2.150%
- ----------------------------------------------------------------------------------------------------------
"Applicable Percentage" means, as of any date prior to the Term Loan
Conversion 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 0.175%
------------------------------------------------
Level 2
-------
BBB+ or Baa1 0.225%
------------------------------------------------
Level 3
-------
BBB or Baa2 0.275%
------------------------------------------------
Level 4
-------
BBB- or Baa3 0.350%
------------------------------------------------
Level 5
-------
Lower than Level 4 0.400%
------------------------------------------------
"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 2.17(d).
"Assumption Agreement" has the meaning specified in Section
2.17(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.
"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 2.06(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.
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"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"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, with respect to any Lender at any time, (a) the
amount set forth opposite such Lender's name on Schedule I hereto, (b) if
such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the amount set forth in such Assumption Agreement or (c) if such
Lender has entered into any Assignment and Acceptance, the amount set forth
for such Lender in the Register maintained by the Agent pursuant to Section
8.07(d), as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.17.
"Commitment Date" has the meaning specified in Section 2.17(b).
"Commitment Increase" has the meaning specified in Section 2.17(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.
"Consenting Lender" has the meaning specified in Section 2.18(b).
"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.
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"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.07 or 2.08.
"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.
"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 2.07.
4
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.18(b).
"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.
5
"Increase Date" has the meaning specified in Section 2.17(a).
"Increasing Lender" has the meaning specified in Section 2.17(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,
(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 or, if the Advances have been converted to
a term loan pursuant to Section 2.06 prior to such selection, that
ends after the Maturity 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
6
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.
"Lenders" means the Initial Lenders, each Assuming Lender that shall
become a party hereto pursuant to Section 2.17 or 2.18 and each Person that
shall become a party hereto pursuant to Section 8.07.
"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, 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.
"Maturity Date" means the earlier of (a) the first anniversary of the
Termination Date and (b) the date of termination in whole of the aggregate
Commitments pursuant to Section 2.04 or 6.01.
"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.
"Non-Consenting Lender" has the meaning specified in Section 2.18(b).
"Note" means a promissory note of the Borrower payable to the order of
any Lender, delivered pursuant to a request made under Section 2.15 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.
7
"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 Commitment at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01,
such Lender's Commitment as in effect immediately prior to such
termination) and the denominator of which is the aggregate amount of all
Commitments at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, the aggregate amount of all 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 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).
8
"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.
"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 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).
"Term Loan Conversion Date" means the Termination Date on which
all Advances outstanding on such date are converted into a term loan pursuant to
Section 2.05.
"Term Loan Election" has the meaning specified in Section 2.05.
"Termination Date" means the earlier of (a) September 15, 2003,
subject to the extension thereof pursuant to Section 2.18 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.04 or 6.01;
provided, however, that the Termination Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.18 shall
be the Termination Date in effect immediately prior to the applicable Extension
Date for all purposes of this Agreement.
9
"Unused Commitment" means, with respect to each Lender at any
time, such Lender's Commitment at such time minus the aggregate principal amount
of all Advances made 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. 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 Commitments. Within the limits of each
Lender's Commitment, the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.09 and reborrow under this Section 2.01.
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 2.07 or 2.11 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
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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. 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 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) 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 2.04. Termination or Reduction of the Commitments. (a)
Optional. 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.
(b) Mandatory. On the Termination Date, if the Borrower has made
the Term Loan Election in accordance with Section 2.06 prior to such date, and
from time to time thereafter upon each prepayment of the Advances, the
Commitments of the Lenders shall be automatically and permanently reduced on a
pro rata basis by an amount equal to the amount by which (i) the aggregate
Commitments immediately prior to such reduction exceeds (ii) the aggregate
unpaid principal amount of all Advances outstanding at such time.
SECTION 2.05. Repayment of Advances. The Borrower shall, subject
to the next succeeding sentence, repay to the Agent for the ratable account of
the Lenders on the Termination Date the aggregate principal amount of the
Advances then outstanding. The Borrower may, upon not less than 15 days' notice
to the Agent, elect (the "Term Loan Election") to convert all of the Advances
outstanding on the Termination Date in effect at such time into a term loan
which the Borrower shall repay in full ratably to the Lenders on the Maturity
Date; provided that the Term Loan Election may not be exercised if a Default has
occurred and is continuing on the date of notice of the Term Loan Election or on
the date on which the Term Loan Election is to be effected. All Advances
converted into a term loan pursuant to this Section 2.05 shall continue to
constitute Advances except that the Borrower may not reborrow pursuant to
Section 2.01 after all or any portion of such Advances have been prepaid
pursuant to Section 2.09.
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SECTION 2.06. 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 2.07. 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 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 2.06(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.06(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.
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(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 2.08. 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 2.07 and 2.11, 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 2.09. 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. (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 2.10. 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 (excluding for purposes
of this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.13 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
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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 2.11. 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 2.12. 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 2.10, 2.13 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 2.17
or an extension of the Termination Date 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 or Extension Date, as the case may be, 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 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 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.
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(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 2.13. 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 2.12 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 2.13) 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").
(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 2.13) 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
15
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 2.13(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 2.13(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 2.13 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.
SECTION 2.14. 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 2.10, 2.13 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 2.14
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 2.15. 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
16
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 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 2.16. Use of Proceeds. The proceeds of the Advances 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 2.17. 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 the Commitment 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
Commitments at any time exceed $400,000,000 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, (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 2.17(b) (each such Eligible Assignee and each Eligible Assignee that
agrees to an extension of the Termination Date in accordance with Section
2.18(c), an "Assuming Lender") shall become a Lender party to this Agreement as
of such Increase Date and the Commitment of each
17
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 2.17(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 2.17(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 2.09 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.
SECTION 2.18. Extension of Termination Date. (a) At least 30 days but
not more than 45 days prior to the Termination Date, the Borrower, by written
notice to the Agent, may request an extension of the Termination Date in effect
at such time by 364 days from its then scheduled expiration; provided, however,
that the Borrower shall not have made the Term Loan Election for Advances
outstanding on such Termination Date prior to such time. The Agent shall
promptly notify each Lender of such request, and each Lender shall in turn, in
its sole discretion, not later than 20 days prior to the Termination Date,
notify the Borrower and the Agent in writing as to whether such Lender will
consent to such extension. If any Lender shall fail to notify the Agent and the
Borrower in writing of its consent to any such request for extension of the
Termination Date at least 20 days prior to the Termination Date, such Lender
shall be deemed to be a Non-Consenting Lender with respect to such request. The
Agent shall notify the Borrower not later than 15 days prior to the Termination
Date of the decision of the Lenders regarding the Borrower's request for an
extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.18, the Termination Date in
effect at such time shall, effective as at the Termination Date (the "Extension
Date"), be extended for 364 days; provided that on each Extension Date the
applicable conditions set forth in Article III shall be satisfied. If less than
all of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection
(d) of this Section 2.18, be extended as to those Lenders that so consented
(each a "Consenting Lender") but shall not be extended as to any other Lender
(each a "Non-Consenting Lender"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.18 and the Commitment of
such Lender is not assumed in accordance with subsection (c) of this Section
2.18 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Borrower,
such Lender or any other Person; provided that such Non-Consenting Lender's
rights under Sections 2.11, 2.14 and 8.04, and its obligations under Section
7.05, shall survive the Termination Date for such Lender as to matters occurring
prior to such date. It is understood and agreed that no Lender shall have any
obligation whatsoever to agree to any request made by the Borrower for any
requested extension of the Termination Date.
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(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.18, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to the
Termination Date of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Borrower and the Agent. If after giving effect to the assignments of
Commitments described above there remains any Commitments of Non-Consenting
Lenders, the Borrower may arrange for one or more Consenting Lenders or other
Eligible Assignees as Assuming Lenders to assume, effective as of the Extension
Date, any Non-Consenting Lender's Commitment and all of the obligations of such
Non-Consenting Lender under this Agreement thereafter arising, without recourse
to or warranty by, or expense to, such Non-Consenting Lender; provided, however,
that the amount of the Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than $5,000,000 unless the amount of
the Commitment of such Non-Consenting Lender is less than $5,000,000, in which
case such Assuming Lender shall assume all of such lesser amount; and provided
further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on, the
outstanding Advances, if any, of such Non-Consenting Lender plus (B) any
accrued but unpaid facility fees owing to such Non-Consenting Lender as of
the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the
effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Agent an Assumption
Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender,
the Borrower and the Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Agent as to the
increase in the amount of its Commitment and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.18 shall have delivered to the Agent
any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the
immediately preceding sentence, each such Consenting Lender or Assuming Lender,
as of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions
pursuant to subsection (c) of this Section 2.18) Lenders having Commitments
equal to at least 50% of the Commitments in effect immediately prior to the
Extension Date consent in writing to a requested extension (whether by execution
or delivery of an Assumption Agreement or otherwise) not later than one Business
Day prior to such Extension Date, the Agent shall so notify the Borrower, and,
subject to the satisfaction of the applicable conditions in Article III, the
Termination Date then in effect shall be extended for the additional 364-day
period as described in subsection (a) of this Section 2.18, and all references
in this Agreement, and in the Notes, if any, to the "Termination Date" shall,
with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Termination Date as so extended. Promptly following
each Extension Date, the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior
19
thereto and shall thereupon record in the Register the relevant information with
respect to each such Consenting Lender and each such Assuming Lender.
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:
(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 2.15.
20
(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.
(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, Term Loan
Conversion Date, Commitment Increase and Extension Date. The obligation of each
Lender to make an Advance on the occasion of each Borrowing, the Term Loan
Election, each Commitment Increase and each extension of Commitments pursuant to
Section 2.18 shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing, the Term Loan
Election, the applicable Increase Date or the applicable Extension Date (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing the Term Loan Election, request for Commitment Increase,
request for Commitment Extension and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing, the Term Loan Election, such
Increase Date or such Extension Date 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, the Term Loan Election, such Commitment Increase or such
Extension Date 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, the Term Loan Election, such Commitment Increase or such
Extension Date 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.
21
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 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
22
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 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.
23
(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 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
24
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, 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, 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
25
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
(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
26
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 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
27
$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.
(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, 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
28
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;
(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
29
(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.
(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
30
(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;
(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
31
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
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
32
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.
(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 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 shall automatically be terminated and (B) the Advances, all such
interest and all
33
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender 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 2.17 or 2.18, as the case may be, 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.
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
34
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 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) 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 and (ii) their respective Unused Commitments at
such time. The failure of any Lender to reimburse the Agent promptly upon demand
for its ratable share of any amount required to be paid by the Lenders to the
Agent as provided herein shall not relieve any other Lender of its obligation
hereunder to reimburse the Agent for its ratable share of such amount, but no
Lender shall be responsible for the failure of any other Lender to reimburse the
Agent 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 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
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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 Commitments 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.
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
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
36
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 2.07(d) or (e), 2.09 or 2.11,
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.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.10, 2.13 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 2.10 or 2.13) 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
37
under this Agreement (including, without limitation, all or a portion of its
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 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
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 2.10, 2.13 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
38
(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.
(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 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 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) 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.
39
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 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 8.11.5. 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.
40
SECTION 8.12. 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 Lenders
Administrative Agent
CITIBANK, N.A.
By __________________________
Title:
Syndication Agents
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By __________________________
Title:
By __________________________
Title:
PNC BANK, N.A.
By __________________________
Title:
41
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:
42
SCHEDULE I
CONSOL ENERGY INC.
364-DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
- ----------------------------------------------------------------------------------------------------------------
Name of Initial Lender Revolving Domestic Lending Office Eurodollar Lending Office
- ---------------------- --------- ----------------------- -------------------------
Credit
------
Commitment
----------
- ----------------------------------------------------------------------------------------------------------------
Australia and New Zealand $ 18,000,000 Attn: Tessie Amance/ Attn: Tessie Amance/
Banking Group Limited Doreen Klingenbeck Doreen Klingenbeck
T: 212 801-9744/9726 T: 212 801-9744/9726
F: 212 536-9244 F: 212 536-9244
- ----------------------------------------------------------------------------------------------------------------
Barlcays Bank PLC $ 22,500,000 222 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 $ 22,500,000 150 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 $ 22,500,000 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. $ 36,000,000 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 York $ 31,500,000 1301 Avenue of the Americas 1301 Avenue of the Americas
and Grand Cayman Branches New York, NY 10019 New York, NY 10019
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 $ 11,250,000 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. $ 31,500,000 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 $ 22,500,000 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: $218,250,000
43
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$____________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, CONSOL Energy Inc., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the later of the Termination Date and the date designated
pursuant to Section 2.05 of the Credit Agreement (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 364-Day 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 364-Day 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 364-Day 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 (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 as of the
date hereof. After giving effect to such sale and assignment, the Assignee's
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 Commitment assumed by the Assignee pursuant hereto or new
Notes payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and] the Assignor in an amount equal to
the 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 2.13 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 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. $218,250,000
364-DAY 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
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 10
------------
SECTION 2.02. Making the Advances 10
-------------------
SECTION 2.03. Fees 11
----
SECTION 2.04. Termination or Reduction of the Commitments 11
-------------------------------------------
SECTION 2.05. Repayment of Advances 11
---------------------
SECTION 2.06. Interest on Advances 12
--------------------
SECTION 2.07. Interest Rate Determination 12
---------------------------
SECTION 2.08. Optional Conversion of Advances 13
-------------------------------
SECTION 2.09. Prepayments of Advances 13
-----------------------
SECTION 2.10. Increased Costs 13
---------------
SECTION 2.11. Illegality 14
----------
SECTION 2.12. Payments and Computations 14
-------------------------
SECTION 2.13. Taxes 15
-----
SECTION 2.14. Sharing of Payments, Etc. 16
------------------------
SECTION 2.15. Evidence of Debt 16
----------------
SECTION 2.16. Use of Proceeds 17
---------------
SECTION 2.17. Increase in the Aggregate Commitments 17
-------------------------------------
SECTION 2.18. Extension of Termination Date 18
-----------------------------
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 20
SECTION 3.02. Conditions Precedent to Each Borrowing, Term Loan Conversion Date,
------------------------------------------------------------------
Commitment Increase and Extension Date. 21
--------------------------------------
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 25
---------------------
SECTION 5.02. Negative Covenants 28
------------------
ARTICLE VI
SECTION 6.01. Events of Default 32
-----------------
ARTICLE VII
SECTION 7.01. Authorization and Action 34
------------------------
SECTION 7.02. Agent's Reliance, Etc. 34
---------------------
SECTION 7.03. Citibank and Affiliates 34
-----------------------
SECTION 7.04. Lender Credit Decision 34
----------------------
SECTION 7.05. Indemnification 35
---------------
SECTION 7.06. Successor Agent 35
---------------
SECTION 7.07. Other Agents. 35
------------
SECTION 7.08. Acknowledgements. 35
----------------
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 36
---------------
SECTION 8.02. Notices, Etc. 36
------------
SECTION 8.03. No Waiver; Remedies 36
-------------------
SECTION 8.04. Costs and Expenses 36
------------------
SECTION 8.05. Right of Set-off 37
----------------
ii
SECTION 8.06. Binding Effect 37
--------------
SECTION 8.07. Assignments and Participations 37
------------------------------
SECTION 8.08. Confidentiality 39
---------------
SECTION 8.09. Governing Law 39
-------------
SECTION 8.10. Execution in Counterparts 40
-------------------------
SECTION 8.11. Jurisdiction, Etc. 40
-----------------
SECTION 8.11.5. Severability 40
------------
SECTION 8.12. Waiver of Jury Trial 41
--------------------
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