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Exhibit 10.11
EXECUTION COPY
AMENDMENT NO. 6 TO AMENDED
AND RESTATED
CONSTRUCTION AND TERM LOAN AGREEMENT
AND UNANIMOUS CONSENT
THIS
AMENDMENT NO. 6 TO AMENDED AND RESTATED CONSTRUCTION AND TERM LOAN
AGREEMENT AND UNANIMOUS CONSENT (this "Amendment"), dated as of
November 21, 2000, is made by and among (i) WESTMORELAND-LG&E
PARTNERS, a Virginia general partnership, as Borrower (the
"Borrower"), (ii) CREDIT SUISSE FIRST BOSTON, NIB CAPITAL BANK
N.V., THE BANK OF NOVA SCOTIA, THE SUMITOMO BANK, LIMITED, New York
Branch, THE SANWA BANK LIMITED, UNION BANK OF CALIFORNIA, N.A., THE
FUJI BANK LIMITED, New York Branch, CREDIT LYONNAIS, New York
Branch, CREDIT LYONNAIS, Cayman Island Branch, LANDESBANK
HESSEN-THURINGEN GIROZENTRALE and each Purchasing Lender, as
Lenders, (iii) THE PRUDENTIAL INSURANCE COMPANY OF AMERICA as
Institutional Lender and as Institutional Agent (together with its
successors in each such capacity) and each Purchasing Institutional
Lender, (iv) CREDIT SUISSE FIRST BOSTON, New York Branch, as the
Issuing Bank, (together with its successors in such capacity), (v)
CREDIT SUISSE FIRST BOSTON, NIB CAPITAL BANK N.V., THE BANK OF NOVA
SCOTIA and THE SUMITOMO BANK, LIMITED, New York Branch, as
Co-Agents (together with their successors in such capacity) and
(vi) CREDIT SUISSE FIRST BOSTON, as Agent for the Lenders, the
Institutional Lenders and the Issuing Bank (together with its
successors in such capacity).
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, Amendment No. 4 dated
as of October 19, 1995, and Amendment No. 5 dated as of August 23,
2000 each among Borrower, the Lenders, the Institutional Lenders,
the Issuing Bank, the Co-Agents and Agent and the letter agreement,
dated July 20, 1999, from Credit Suisse First Boston as Agent, as
Issuing Bank, as Co-Agent and as Securities Intermediary, and
acknowledged and agreed to by the Borrower, the Lenders, the
Institutional Lenders and the Institutional Agent (collectively,
the "Credit Agreement") sets forth, among other things, the terms
and conditions upon which the Lenders and the Institutional Lenders
are willing to make available to Borrower certain Loans and
Institutional Loans (unless otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement (including
Exhibit X thereto) shall have the meanings indicated therein);
and
WHEREAS,
Borrower, the Lenders, the Institutional Lenders, Institutional
Agent, the Issuing Bank, the Co-Agents and Agent desire to amend
the Credit Agreement as provided herein;
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WHEREAS,
the letter agreement referred to in the first paragraph of this
preamble, dated as of July 20, 1999 (the "Letter Agreement"),
established the CSFB-Westmoreland-LG&E Roanoke I & II
Account as defined therein (the "Roanoke Account");
WHEREAS,
(a) Borrower and Virginia Power desire to amend and restate the
Rova I Power Purchase Agreement and the Rova fi Power Purchase
Agreement (collectively, the "Rova Power Purchase Agreements") and
(b) Borrower desires to apply the Settlement Proceeds (as defined
below) in the manner set forth herein, and Borrower has requested
the consent of the Lenders, Institutional Lenders, Institutional
Agent, Issuing Bank, Co-Agents and Agent thereto; and
WHEREAS,
Borrower, the Lenders, Institutional Lenders, Institutional Agent,
Issuing Bank, Co-Agents and Agent desire to amend the Credit
Agreement as provided herein in connection with the granting of
such consent to Borrower.
NOW,
THEREFORE, it is agreed:
Section
1. Amendments . Subject to the limitations contained in
Section 4 hereof, the Credit Agreement is hereby amended as
follows:
(a)
Exhibit X is hereby amended by inserting the following definition
in the appropriate alphabetical order:
(i)
" Amendment No. 6 to Credit Agreement " means Amendment
No. 6 to the Amended and Restated Construction and Term Loan
Agreement and Unanimous Consent, dated as of November 21, 2000,
among Borrower, the Lenders, the Institutional Lenders,
Institutional Agent, the Issuing Bank, the Co-Agents and Agent.
(b)
Exhibit X is hereby further amended as follows:
(i)
The definition of "Combined Debt Service Coverage Ratio" is amended
and restated in its entirety as follows:
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"
Combined Debt Service Coverage Ratio " means, for any period
with respect to which a calculation is to be delivered to Agent
under the Credit Agreement, (i) if the Calculation Delivery Date
therefor occurs (x) prior to June 15, 2009 or (y) after June 15,
2011, the ratio of (a) the sum of Rova I Net Revenues for such
period plus Rova U Net Revenues for such period to (b) the sum for
such period of the items referred to in clauses (a), (b), (c) and
(d) of the definitions of "Tranche A Debt Service" and "Tranche B
Debt Service" set forth in the Credit Agreement, as calculated by
Borrower and approved as set forth in the definitions of "Tranche A
Debt Service Coverage Ratio" and of "Tranche B Debt Service
Coverage Ratio", respectively, and (ii) if the Calculation Delivery
Date therefor occurs (x) on or after June 15, 2009 but on or prior
to June 15, 2011, a ratio to be calculated in the same manner as in
clause (i) of this definition except that when making such
calculation, the appropriate amount indicated below shall be added
to the sum obtained pursuant to sub-clause (a) of clause (i) above
for such ratio delivered by Borrower to Agent on each of the
following Calculation Delivery Dates:
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June 15, 2009
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$3,350,000
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December 15, 2009
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$6,700,000
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June 15, 2010
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$4,850,000
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December 15, 2010
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$3,000,000
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June 15, 2011
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$1,500,000;
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provided , however that if any
Event of Default has occurred and is continuing on any Calculation
Delivery Date, such ratio shall be calculated in the same manner as
in clause (i) of this definition."
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(ii)
The definition of "Combined Projected Debt Service Coverage Ratio"
is amended and restated in its entirety as follows:
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"
Combined Projected Debt Service Coverage Ratio " means, for
any period with respect to which a calculation is to be delivered
to Agent under the Credit Agreement, (i) if the Calculation
Delivery Date therefor occurs (x) prior to December 15, 2008 or (y)
after June 15, 2010, the ratio of (a) the sum of Projected Rova I
Net Revenues during such period plus Projected Rova II Net Revenues
during such period to (b) the sum of Projected Tranche A Debt
Service for such period plus Projected Tranche B Debt Service for
such period, as calculated by Borrower and approved as set forth in
the definitions of "Projected Tranche A Debt Service Coverage
Ratio" and "Projected Tranche B Debt Service Coverage Ratio",
respectively, and (ii) if the Calculation Delivery Date therefor
occurs (x) on or after December 15, 2008 but on or prior to June
15, 2010, a ratio calculated in the same manner as in clause (i) of
this definition except that when making such calculation, the
appropriate amount indicated below shall be added to the sum
obtained pursuant to sub-clause (a) of clause (i) above for such
ratio delivered by Borrower to Agent on each of the following
Calculation Delivery Dates:
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December 15, 2008
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$3,350,000
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June 15, 2009
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$3,350,000
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December 15, 2009
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$1,500,000
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June 15, 2010
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$1,500,000;
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provided , however that if any
Event of Default has occurred and is continuing on any Calculation
Delivery Date, such ratio shall be calculated in the same manner as
in clause (i) of this definition."
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(c)
Section 6.1(c)(vi) is hereby amended by inserting the following
proviso at the end thereof:
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" provided , however , that on the
first Repayment Date in each of the calendar years 2004 and 2009,
the amount withdrawn and transferred for deposit in the Repair and
Maintenance Account shall be an amount equal to the difference
between (x) the Required Maintenance Balance less (y) the
then-current balance in the Repair and Maintenance
Account;"
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(d)
Section 6.1(c)(vii) is hereby amended by inserting the following
clause (C) immediately after the semicolon at the end of
clause (B) appearing in such Section:
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"and (C) third, on each Repayment Date that is a
Quarterly Date in January and each Repayment Date that is a
Quarterly Date in July, commencing on January 1, 2002 through and
including July 31, 2008, withdraw an amount equal to $550,000 to be
deposited into the Debt Protection Account, except that on any such
Repayment Date no such withdrawal shall be made if Borrower has,
pursuant to this Section 6. l(c)(vii)(C), delivered to Agent a Debt
Protection Letter of Credit in a face amount of $550,000 (or
amended an existing Debt Protection Letter of Credit so as to
increase it by such an amount) which shall satisfy all of the
requirements and afford Agent all of the rights applicable to Debt
Protection Letters of Credit set forth in Section 6.1(f) hereof,
together with such corporate documents, legal opinions and other
documents and information which the Agent may reasonably request;
provided , that, the provision of Section 6.1(f) limiting
the number of Debt Protection Letters of Credit that may be
outstanding to three such letters of credit at any one time shall
not apply to Debt Protection Letters of Credit delivered pursuant
to this Section 6.1(c)(vii)(C);".
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(e)
Section 6.1(d) (Ash Reserve Account) is hereby amended by inserting
the parenthetical "(i)" immediately after the title to such Section
and prior to the first sentence thereof and by inserting a new
sub-clause (ii) immediately prior to the period appearing at the
end of such Section as follows:
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"and (ii)
Notwithstanding any provision in this Agreement or any of the Loan
Instruments to the contrary, including Section 6.1(d)(i) hereof,
commencing upon the effective date of Amendment No. 6 to Credit
Agreement:
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(A)
the Ash Reserve Account shall be funded pursuant to Section
6.1(c)(ii) hereof up to a maximum amount of $600,000 and such
amount shall be considered the "Required Ash Reserve Balance",
provided , that , in the event that any of the funds
held in the Ash Reserve Account are used pursuant to Section
6.1(d)(ii)(B) below, such maxim
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