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Exhibit 10.9
AMENDMENT NO. 5 TO AMENDED AND
RESTATED
CONSTRUCTION AND TERM LOAN AGREEMENT
THIS AMENDMENT
NO. 5 TO AMENDED AND RESTATED CONSTRUCTION AND TERM LOAN AGREEMENT,
dated as of December 15, 1996, is made by and among (i)
WESTMORELAND-LG&E PARTNERS, a Virginia general partnership, as
Borrower, (ii) CREDIT SUISSE, NATIONAL WESTMINSTER BANK Plc, THE
BANK OF NOVA SCOTIA, THE SUMITOMO BANK, LIMITED, New York Branch,
THE SUMITOMO TRUST AND BANKING CO., LTD., New York Branch, THE
INDUSTRIAL BANK OF JAPAN, LTD., New York Branch, UNION BANK, UNION
BANK OF SWITZERLAND, THE FUJI BANK LIMITED, Los Angeles Agency,
CREDIT LYONNAIS, New York Branch, CREDIT LYONNAIS, Cayman Island
Branch, THE TORONTO-DOMINION BANK and each Purchasing Lender, as
Lenders, (iii) THE PRUDENTIAL INSURANCE COMPANY OF AMERICA and each
Purchasing Institutional Lender, as Institutional Lenders, (iv)
CREDIT SUISSE, New York Branch, as the Issuing Bank, (v) CREDIT
SUISSE, NATIONAL WESTMINSTER BANK Plc, THE BANK OF NOVA SCOTIA and
THE SUMITOMO BANK, LIMITED, New York Branch, as Co-Agents, and (vi)
CREDIT SUISSE, as Agent for the Lenders, the Institutional Lenders
and the Issuing Bank.
W I T N E S S E T H :
WHEREAS, the
Amended and Restated Construction and Term Loan Agreement, dated as
of December 1, 1993, as amended by Amendment No. 1 dated as of
November 4, 1994, Amendment No. 2 dated as of December 30, 1994,
Amendment No. 3 dated as of January 31, 1995 and Amendment No. 4,
dated as of October 19, 1995 (the "Credit Agreement"), among
Borrower, the Lenders, the Institutional Lenders, the Issuing Bank,
the Co-Agents and Agent sets forth, among other things, the terms
and conditions upon which Borrower may make Permitted Investments
(unless otherwise defined herein, terms used herein and defined in
the Credit Agreement shall have the meanings indicated in the
Credit Agreement, and unless otherwise specified herein, references
to any "Article" or "Section" shall refer to the appropriate
article or section of the Credit Agreement);
WHEREAS, the
Credit Agreement sets forth the Borrower’s minimum insurance
maintenance requirements for the Rova I Facility and the Rova II
Facility; and
WHEREAS,
Borrower, the Lenders, the Institutional Lenders, the Issuing Bank,
the Co-Agents and Agent desire to amend the Credit Agreement as
provided herein;
NOW, THEREFORE,
in consideration of the mutual covenants contained herein, the
parties agree as follows:
Section
1. Amendments . Subject to the limitations
contained in Section 2 hereof, the Credit Agreement is hereby
amended as follows:
1
1.1.
The definition of "Permitted Investments" in Exhibit X is hereby
amended by deleting the words "or (e)" in the nineteenth line
thereof and inserting in their place:
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" (e) time deposits with banks rated "Aal" or
better by Moody’s or "AA" or better by S&P and having
capital, surplus and undivided profits of at least $1,000,000,000,
including but not limited to Eurodollar time deposits,
provided that any Eurodollar time deposits shall be held
only by Agent, and any such time deposits shall have a maturity of
not longer than 90 days; or (f)"
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1.2.
The definition of "Permitted Contract" in Exhibit X is hereby
amended in its entirety as follows:
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" ‘ Permitted Contract ’ means
(a) any agreement of Borrower entered into after the Closing Date
with respect to the operation, maintenance, repair or renovation of
the Rova I Facility and/or the Rova II Facility, as applicable,
other than those agreements referred to in clause (b) hereto,
requiring payments (including contingent payments such as
indemnities, guaranties or similar obligations) by any party
thereto of not more than $900,000 per year; provided that at
no time shall all payments (including any such contingent payments)
required to be made by all parties under all Permitted Contracts
specified in this clause (a) then in effect in the aggregate exceed
$1,500,000 per year without the consent of Agent and Institutional
Agent; and provided , further , that Agent and
Institutional Agent shall receive notice of the execution of any
such agreements, shall receive a copy thereof and, upon the
reasonable request of Agent, shall be granted a security interest
therein (with the consent of the non-assigning party, if reasonably
obtainable), and (b) all purchase orders of other agreements
entered into pursuant to Section 5.11
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