EXHIBIT 10(lv)
LETTER AMENDMENT
Dated as of November 20, 2001
To the banks, financial institutions
and other institutional lenders
(collectively, the "Lenders") parties
to the Credit Agreement referred to
below and to Citibank, N.A., as agent
(the "Agent") for the Lenders
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of October 11, 2000
(the "Credit Agreement") among the undersigned and you. Capitalized terms not
otherwise defined in this Letter Amendment have the same meanings as specified
in the Credit Agreement.
It is hereby agreed by you and us, effective as of the date of
this Letter Amendment, as follows:
1. Clause (A) of the proviso following the table in the definition of
"Applicable Margin" is hereby amended in full to read "(A) through the fiscal
quarter end that is at least 180 days after receipt by the Borrower of the
"Commercial Operating Date" (as defined in the Power Purchase and Operating
Agreement between Tennessee Valley Authority and Choctaw Generation, Inc. dated
February 20, 1997), the Applicable Margin shall be at Level 5".
2. Clause (A) of the proviso following the table in the definition of
"Applicable Percentage" is hereby amended in full to read "(A) through the
fiscal quarter end that it at least 180 days after receipt by the Borrower of
the "Commercial Operating Date" (as defined in the Power Purchase and Operating
Agreement between Tennessee Valley Authority and Choctaw Generation, Inc. dated
February 20, 1997), the Applicable Margin shall be at Level 5".
3. Section 5.03(b) of the Credit Agreement is hereby amended in full to
read as follows:
(b) Fixed Charge Coverage Ratio. Maintain a ratio of
Consolidated EBITDA of the Borrower and its Non-Project Mining
Subsidiaries to the sum of interest payable on, and amortization of
debt discount in respect of, all Consolidated Recourse Debt during such
period, by the Borrower and its Non-Project Mining Subsidiaries for
each period of four fiscal quarters of not less than 3.00:1 from
January 1, 2001 until December 31, 2001, 3.25:1 from January 1, 2002
until March 31, 2002, 3.50:1 from April 1, 2002 until September 30,
2002, 3.75 from October 1, 2002 until March 31, 2003 and not less than
4.00:1 thereafter.
This Letter Amendment shall become effective as of the date
first above written when, and only when, the Agent shall have received
counterparts of this Letter Amendment
executed by the undersigned and the Required Lenders or, as to any of the
Lenders, advice satisfactory to the Agent that such Lender has executed this
Letter Amendment. This Letter Amendment is subject to the provisions of Section
8.01 of the Credit Agreement.
On and after the effectiveness of this Letter Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the Notes to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended by this Letter Amendment.
The Credit Agreement and the Notes, as specifically amended by
this Letter Amendment, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Letter Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any Lender or the
Agent under the Credit Agreement, nor constitute a waiver of any provision of
the Credit Agreement.
If you agree to the terms and provisions hereof, please
evidence such agreement by executing and returning at least two counterparts of
this Letter Amendment to Susan L. Hobart, Shearman & Sterling, 599 Lexington
Avenue, New York, New York 10022.
This Letter Amendment 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 Letter Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Letter
Amendment.
This Letter Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
THE NORTH AMERICAN COAL CORPORATION
By: /s/ C.B. Friley
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Title: Senior Vice President and CFO
Agreed as of the date first above written:
CITIBANK, N.A., as Agent and as Lender
By: /s/ David Harris
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Title: Vice president
BANK ONE, NA
By: /s/ Mary Lu D. Cramer
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Title: Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ Marianne T. Meil
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Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Brett Schweikle
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Title: Assistant Vice President