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EXHIBIT 10.1
EXECUTION VERSION
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$285,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 5, 2004,
AMONG
ICG, LLC,
AS BORROWER,
INTERNATIONAL COAL GROUP, INC.,
AS HOLDINGS,
THE GUARANTORS PARTY HERETO,
AS GUARANTORS,
THE LENDERS PARTY HERETO,
UBS SECURITIES LLC,
AS ARRANGER, BOOKMANAGER AND SYNDICATION AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION,
AS DOCUMENTATION AGENT,
UBS AG, STAMFORD BRANCH,
AS ISSUING BANK, ADMINISTRATIVE AGENT AND COLLATERAL AGENT,
AND
UBS LOAN FINANCE LLC,
AS SWINGLINE LENDER
Latham & Watkins LLP
885 Third Avenue, Suite 1000
New York, New York 10022-4802
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined
Terms....................................................... 2
SECTION 1.02 Classification of Loans and
Borrowings.............................. 38
SECTION 1.03 Terms
Generally.....................................................
38
SECTION 1.04 Accounting Terms;
GAAP.............................................. 38
SECTION 1.05 Resolution of Drafting
Ambiguities.................................. 39
ARTICLE II
THE CREDITS
SECTION 2.01
Commitments.........................................................
39
SECTION 2.02
Loans...............................................................
39
SECTION 2.03 Borrowing
Procedure................................................. 40
SECTION 2.04 Evidence of Debt; Repayment of
Loans................................ 41
SECTION 2.05
Fees................................................................
42
SECTION 2.06 Interest on
Loans................................................... 43
SECTION 2.07 Termination and Reduction of
Commitments............................ 43
SECTION 2.08 Interest
Elections.................................................. 44
SECTION 2.09 Amortization of Term
Borrowings..................................... 45
SECTION 2.10 Optional and Mandatory
Prepayments.................................. 45
SECTION 2.11 Alternate Rate of
Interest.......................................... 48
SECTION 2.12 Increased
Costs..................................................... 49
SECTION 2.13 Breakage
Payments................................................... 50
SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of
Setoffs.......... 50
SECTION 2.15
Taxes...............................................................
52
SECTION 2.16 Mitigation Obligations; Replacement of
Lenders...................... 53
SECTION 2.17 Swingline
Loans..................................................... 54
SECTION 2.18 Letters of
Credit................................................... 55
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization;
Powers................................................ 61
SECTION 3.02 Authorization;
Enforceability....................................... 62
SECTION 3.03 No
Conflicts........................................................
62
SECTION 3.04 Financial
Statements................................................ 62
SECTION 3.05
Properties..........................................................
63
SECTION 3.06 Intellectual
Property............................................... 63
SECTION 3.07 Equity Interests and
Subsidiaries................................... 64
SECTION 3.08 Litigation; Compliance with
Laws.................................... 65
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SECTION 3.09
Agreements..........................................................
65
SECTION 3.10 Federal Reserve
Regulations......................................... 65
SECTION 3.11 Investment Company Act; Public Utility Holding
Company Act.......... 66
SECTION 3.12 Use of
Proceeds.....................................................
66
SECTION 3.13
Taxes...............................................................
66
SECTION 3.14 No Material
Misstatements........................................... 66
SECTION 3.15 Labor
Matters.......................................................
66
SECTION 3.16
Solvency............................................................
67
SECTION 3.17 Employee Benefit
Plans.............................................. 67
SECTION 3.18 Environmental
Matters............................................... 67
SECTION 3.19
Insurance...........................................................
70
SECTION 3.20 Security
Documents.................................................. 70
SECTION 3.21 Acquisition Documents; Representations and
Warranties in Acquisition
Agreement................................. 71
SECTION 3.22 Coal Agreements, Mining Leases and Prep Plant
Leases................ 71
SECTION 3.23 Reclamation
Documents............................................... 71
SECTION 3.24 Anti-Terrorism
Law.................................................. 71
ARTICLE IV
CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.01 Conditions to Initial Credit
Extension.............................. 72
SECTION 4.01A Conditions to Amendment and
Restatement............................. 77
SECTION 4.02 Conditions to All Credit
Extensions................................. 79
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01 Financial Statements, Reports,
etc.................................. 80
SECTION 5.02 Litigation and Other
Notices........................................ 83
SECTION 5.03 Existence; Businesses and
Properties................................ 83
SECTION 5.04
Insurance...........................................................
84
SECTION 5.05 Obligations and
Taxes............................................... 85
SECTION 5.06 Employee
Benefits................................................... 86
SECTION 5.07 Maintaining Records; Access to Properties and
Inspections; Annual
Meetings........................................ 86
SECTION 5.08 Use of
Proceeds.....................................................
87
SECTION 5.09 Compliance with Environmental Laws; Environmental
Reports........... 87
SECTION 5.10 Material
Agreements................................................. 88
SECTION 5.11 Interest Rate
Protection............................................ 88
SECTION 5.12 Additional Collateral; Additional
Guarantors........................ 88
SECTION 5.13 Security Interests; Further
Assurances.............................. 90
SECTION 5.14 Information Regarding
Collateral.................................... 91
SECTION 5.15 Post Closing Real Estate Collateral
Requirements.................... 92
SECTION 5.16 Reclamation
Documents............................................... 92
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ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01
Indebtedness........................................................
92
SECTION 6.02
Liens...............................................................
95
SECTION 6.03 Sale and Leaseback
Transactions..................................... 98
SECTION 6.04 Investments, Loans and
Advances..................................... 98
SECTION 6.05 Mergers and
Consolidations.......................................... 100
SECTION 6.06 Asset
Sales.........................................................
100
SECTION 6.07
Acquisitions........................................................
101
SECTION 6.08
Dividends...........................................................
102
SECTION 6.09 Transactions with
Affiliates........................................ 103
SECTION 6.10 Financial
Covenants................................................. 103
SECTION 6.11 Prepayments of Other Indebtedness; Modifications
of
Organizational Documents and Other Documents,
etc................... 104
SECTION 6.12 Limitation on Certain Restrictions on
Subsidiaries.................. 105
SECTION 6.13 Limitation on Issuance of Capital
Stock............................. 106
SECTION 6.14 Limitation on Creation of
Subsidiaries.............................. 106
SECTION 6.15
Business............................................................
106
SECTION 6.16 Limitation on Accounting
Changes.................................... 107
SECTION 6.17 Fiscal
Year.........................................................
107
SECTION 6.18 Lease
Obligations...................................................
107
SECTION 6.19 No Further Negative
Pledge.......................................... 107
SECTION 6.20 Anti-Terrorism Law; Anti-Money
Laundering........................... 108
SECTION 6.21 Embargoed
Person.................................................... 108
SECTION 6.22 Amendments to Reclamation
Documents................................. 108
ARTICLE VII
GUARANTEE
SECTION 7.01 The
Guarantee.......................................................
109
SECTION 7.02 Obligations
Unconditional........................................... 109
SECTION 7.03
Reinstatement.......................................................
110
SECTION 7.04 Subrogation;
Subordination.......................................... 110
SECTION 7.05
Remedies............................................................
110
SECTION 7.06 Instrument for the Payment of
Money................................. 111
SECTION 7.07 Continuing
Guarantee................................................ 111
SECTION 7.08 General Limitation on Guarantee
Obligations......................... 111
SECTION 7.09 Release of
Guarantors............................................... 111
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ARTICLE VIII
EVENTS OF DEFAULT
ARTICLE IX
COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS
SECTION 9.01 Collateral
Account.................................................. 115
SECTION 9.02 Proceeds of Asset Sales, Casualty Events and
Excluded Issuances..... 116
SECTION 9.03 Application of
Proceeds............................................. 116
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 10.01
Appointment.........................................................
117
SECTION 10.02 Agent in Its Individual
Capacity.................................... 117
SECTION 10.03 Exculpatory
Provisions.............................................. 117
SECTION 10.04 Reliance by
Agent................................................... 118
SECTION 10.05 Delegation of
Duties................................................ 118
SECTION 10.06 Successor
Agent..................................................... 118
SECTION 10.07 Non-Reliance on Agent and Other
Lenders............................. 118
SECTION 10.08 Name
Agents.........................................................
119
SECTION 10.09
Indemnification.....................................................
119
ARTICLE XI
MISCELLANEOUS
SECTION 11.01
Notices.............................................................
119
SECTION 11.02 Waivers;
Amendment.................................................. 120
SECTION 11.03 Expenses;
Indemnity................................................. 123
SECTION 11.04 Successors and
Assigns.............................................. 125
SECTION 11.05 Survival of
Agreement............................................... 127
SECTION 11.06 Counterparts; Integration;
Effectiveness............................ 128
SECTION 11.07
Severability........................................................
128
SECTION 11.08 Right of
Setoff..................................................... 128
SECTION 11.09 Governing Law; Jurisdiction; Consent to Service of
Process.......... 128
SECTION 11.10 Waiver of Jury
Trial................................................ 129
SECTION 11.11
Headings............................................................
129
SECTION 11.12
Confidentiality.....................................................
129
SECTION 11.13 Interest Rate
Limitation............................................ 130
SECTION 11.14 Lender
Addendum.....................................................
130
SECTION 11.15 Obligations
Absolute................................................ 130
SECTION 11.16 Amendment and
Restatement........................................... 130
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ANNEXES
Annex I Applicable Margin
Annex II Amortization Table
SCHEDULES
Schedule 1.01(a) Initial Investors
Schedule 1.01(b) Material Coal Agreements
Schedule 1.01(c) Mortgaged Property
Schedule 1.01(d) Subsidiary Guarantors
Schedule 3.03 Governmental Approvals; Compliance with Laws
Schedule 3.05(b) Real Property
Schedule 3.06(c) Violations or Proceedings
Schedule 3.07(a) Subsidiaries
Schedule 3.07(c) Corporate Organizational Chart
Schedule 3.08(a) Sale Order Appeals
Schedule 3.09(c) Material Agreements
Schedule 3.18 Environmental and Mining Matters
Schedule 3.19 Insurance
Schedule 3.21 Acquisition Documents
Schedule 3.22 Coal Agreements, Mining Leases and Prep Plant
Leases
Schedule 4.01(d) Existing Acquisition Documents
Schedule 4.01(g) Local Counsel
Schedule 5.15 Post Closing Real Estate Collateral
Requirements
Schedule 6.01(b) Existing Indebtedness
Schedule 6.02(c) Existing Liens
Schedule 6.04(b) Existing Investments
EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Interest Election Request
Exhibit F Form of Joinder Agreement
Exhibit G Form of LC Request
Exhibit H Form of Lender Addendum
Exhibit I-1 Form of Mortgage
Exhibit I-2 Form of Leasehold Mortgage
Exhibit J-1 Form of Term Note
Exhibit J-2 Form of Revolving Note
Exhibit J-3 Form of Swingline Note
Exhibit K-1 Form of Perfection Certificate
Exhibit K-2 Form of Perfection Certificate Supplement
Exhibit L Form of Security Agreement
Exhibit M-1 Form of Opinion of Company Counsel
Exhibit M-2 Form of Opinion of Local Counsel
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Exhibit N Form of Solvency Certificate
Exhibit O Form of Intercompany Note
Exhibit P Form of Non-Bank Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT"),
dated
as of November 5, 2004, among INTERNATIONAL COAL GROUP, INC., a
Delaware
corporation formerly known as Newcoal, LLC ("HOLDINGS"), ICG,
LLC, a Delaware
limited liability company and a wholly owned direct subsidiary
of Holdings
("BORROWER"), the Subsidiary Guarantors (such term and each
other capitalized
term used but not defined herein having the meaning given to
them in Article I),
the Lenders, UBS SECURITIES LLC, as lead arranger (in such
capacity, "ARRANGER")
and as syndication agent (in such capacity, "SYNDICATION
AGENT"), General
Electric Capital Corporation, as documentation agent (in such
capacity,
"DOCUMENTATION AGENT"), UBS LOAN FINANCE LLC, as swingline
lender (in such
capacity, "SWINGLINE LENDER"), and UBS AG, STAMFORD BRANCH, in
its capacity as
Issuing Bank, as administrative agent (in such capacity,
"ADMINISTRATIVE AGENT")
for the Lenders and as collateral agent (in such capacity,
"COLLATERAL AGENT")
for the Secured Parties.
WITNESSETH:
WHEREAS, Borrower entered into an amended and restated asset
purchase agreement, dated as of June 2, 2004 (as amended,
supplemented or
otherwise modified from time to time in accordance with the
provisions hereof
and thereof, the "ACQUISITION AGREEMENT"), with Horizon Natural
Resources
Company and certain of its subsidiaries as specified in the
Acquisition
Agreement (collectively, "SELLERS"), debtors and
debtors-in-possession in cases
under chapter 11 of the United States Bankruptcy Code (the
"BANKRUPTCY CASES")
pending in the United States Bankruptcy Court for the Eastern
District of
Kentucky, Ashland Division (such court or any other United
States Bankruptcy
Court having jurisdiction over the Bankruptcy Cases, the
"BANKRUPTCY COURT"),
pursuant to which Borrower acquired (the "ACQUISITION") certain
assets (the
"ACQUIRED BUSINESS") of Sellers.
WHEREAS, the Equity Financing was consummated simultaneously
with
the Closing Date.
WHEREAS, Borrower has requested the Lenders to extend credit in
the
form of (a) Term Loans on the Closing Date and the Restatement
Date, in an
aggregate principal amount not in excess of $175.0 million, and
(b) Revolving
Loans at any time and from time to time prior to the Revolving
Maturity Date, in
an aggregate principal amount at any time outstanding not in
excess of $110
million.
WHEREAS, Borrower has requested the Swingline Lender to make
Swingline Loans, at any time and from time to time prior to the
Revolving
Maturity Date, in an aggregate principal amount at any time
outstanding not in
excess of $10.0 million.
WHEREAS, Borrower has requested the Issuing Bank to issue
letters of
credit under the Revolving Commitments in an aggregate face
amount at any time
outstanding not in excess of $60.0 million and to support
Borrower's and its
Subsidiaries' surety bonding program and workers' compensation
requirements and
other general corporate purposes of Borrower and its
Subsidiaries.
WHEREAS, the proceeds of the Loans are to be used in accordance
with
Section 3.12.
NOW, THEREFORE, the Lenders are willing to extend such credit
to
Borrower and the Issuing Bank is willing to issue letters of
credit for the
account of Borrower on the terms and subject to the conditions
set forth herein.
Accordingly, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the
following
terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, is used
when
such Loan, or the Loans comprising such Borrowing, are bearing
interest at a
rate determined by reference to the Alternate Base Rate.
"ABR BORROWING" shall mean a Borrowing comprised of ABR
Loans.
"ABR LOAN" shall mean any ABR Term Loan or ABR Revolving
Loan.
"ABR REVOLVING LOAN" shall mean any Revolving Loan bearing
interest
at a rate determined by reference to the Alternate Base Rate in
accordance with
the provisions of Article II.
"ABR TERM LOAN" shall mean any Term Loan bearing interest at a
rate
determined by reference to the Alternate Base Rate in accordance
with the
provisions of Article II.
"ACQUIRED BUSINESS" shall have the meaning assigned to such term
in
the first recital hereto.
"ACQUISITION" shall have the meaning assigned to such term in
the
first recital hereto.
"ACQUISITION AGREEMENT" shall have the meaning assigned to such
term
in the first recital hereto.
"ACQUISITION CONSIDERATION" shall mean the purchase
consideration
for any Permitted Acquisition and all other payments by any
Company in exchange
for, or as part of, or otherwise directly related to, any
Permitted Acquisition,
whether paid in cash or by exchange of Equity Interests or of
properties or
otherwise and whether payable at or prior to the consummation of
such Permitted
Acquisition or deferred for payment at any future time, whether
or not any such
future payment is subject to the occurrence of any contingency,
and includes any
and all payments representing the purchase price and any
assumptions of
Indebtedness, "earn-outs" and other agreements to make any
payment the amount of
which is, or the terms of payment of which are, in any respect
subject to or
contingent upon the revenues, income, cash flow or profits (or
the like) of any
person or business; provided that any such future payment that
is subject to a
contingency shall be considered Acquisition Consideration only
to the extent of
the reserve, if any, required under GAAP at the time of such
Permitted
Acquisition to be established in respect thereof by any
Company.
"ACQUISITION DOCUMENTS" shall mean the collective reference to
the
Acquisition Agreement and the other documents listed on Schedule
3.21.
"ACTIVE OPERATING PROPERTIES" shall mean all property covered
by
outstanding Environmental or Mining Permits (a) issued to any of
the Companies
or (b) to be transferred to any of the Companies in connection
with a completed
acquisition of assets or Equity Interests by any of the
Companies, but shall
exclude all property covered by outstanding Environmental or
Mining Permits
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which any of the Companies are contractually bound to transfer
to another person
(other than another Company).
"ADJUSTED LIBOR RATE" shall mean, with respect to any
Eurodollar
Borrowing for any Interest Period, (a) an interest rate per
annum (rounded
upward, if necessary, to the next 1/100th of 1%) determined by
the
Administrative Agent to be equal to the LIBOR Rate for such
Eurodollar Borrowing
in effect for such Interest Period divided by (b) 1 minus the
Statutory Reserves
(if any) for such Eurodollar Borrowing for such Interest
Period.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such
term
in the preamble hereto and includes each other person appointed
as the successor
to the Administrative Agent pursuant to Article X.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to
such
term in Section 2.05(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as
may be supplied
from time to time by the Administrative Agent.
"ADVANCE ROYALTY PAYMENT" shall mean the advance royalty payment
to
be made on the Closing Date by Holdings to the trustee under the
Trust Agreement
in accordance with the Deed of Overriding Royalty, dated as of
September 30,
2004, between Holdings and such trustee, in an amount not to
exceed $4.0
million.
"ADVISORS" shall have the meaning assigned to such term in
Section
11.03(a).
"ADVISORY SERVICES AGREEMENT" shall mean the Advisory
Services
Agreement, effective as of October 1, 2004, between Holdings and
Sponsor.
"AFFILIATE" shall mean, when used with respect to a
specified
person, another person that directly, or indirectly through one
or more
intermediaries, Controls or is Controlled by or is under common
Control with the
person specified; provided, however, that, for purposes of
Section 6.09, the
term "Affiliate" shall also include (i) any person that directly
or indirectly
owns more than 10% of any class of Equity Interests of the
person specified or
(ii) any person that is an executive officer or director of the
person
specified.
"AGENTS" shall mean the Arranger, the Documentation Agent,
the
Syndication Agent, the Administrative Agent and the Collateral
Agent; and
"AGENT" shall mean any of them.
"AGREEMENT" shall have the meaning assigned to such term in
the
preamble hereto.
"AIG" shall mean, together, American International Specialty
Lines
Insurance Company and Insurance Company of the State of
Pennsylvania.
"AIG BONDING AGREEMENT" shall mean the Bonding and
Cooperation
Agreement, dated as of August 31, 2004, among Holdings,
Lexington Coal Company,
LLC and AIG.
"AIG INDEMNITY AGREEMENT" shall mean the Agreement of
Indemnity,
dated as of September 30, 2004, by Holdings and the Companies
named therein in
favor of AIG.
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"ALTERNATE BASE RATE" shall mean, for any day, a rate per
annum
(rounded upward, if necessary, to the next 1/100th of 1%) equal
to the greater
of (a) the Base Rate in effect on such day and (b) the Federal
Funds Effective
Rate in effect on such day plus 0.50%. If the Administrative
Agent shall have
determined (which determination shall be conclusive absent
manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for
any reason,
including the inability or failure of the Administrative Agent
to obtain
sufficient quotations in accordance with the terms of the
definition thereof,
the Alternate Base Rate shall be determined without regard to
clause (b) of the
preceding sentence until the circumstances giving rise to such
inability no
longer exist. Any change in the Alternate Base Rate due to a
change in the Base
Rate or the Federal Funds Effective Rate shall be effective on
the effective
date of such change in the Base Rate or the Federal Funds
Effective Rate,
respectively.
"ANTI-TERRORISM LAWS" shall have the meaning assigned to such
term
in Section 3.24.
"APPLICABLE FEE" shall mean, for any day, with respect to
any
Revolving Commitment, (a) 0.50% per annum to and including the
date on which
Borrower shall have delivered financial statements pursuant to
Section 5.01(b)
for the fiscal quarter of Borrower ending on March 31, 2005, and
(b) thereafter,
the applicable percentage set forth in Annex I under the caption
"Applicable
Fee".
"APPLICABLE MARGIN" shall mean, for any day, (a) with respect to
any
Term Loan, 2.75% for Eurodollar Term Loans and 1.75% for ABR
Term Loans, and (b)
with respect to any Revolving Loan or Swingline Loan, as the
case may be, the
applicable percentage set forth in Annex I under the appropriate
caption.
"ARRANGER" shall have the meaning assigned to such term in
the
preamble hereto.
"ASSET SALE" shall mean (a) any conveyance, sale, lease,
sublease,
assignment, transfer or other disposition (including by way of
merger or
consolidation and including any Sale and Leaseback Transaction)
of any property
(excluding sales of inventory and dispositions of cash
equivalents, in each
case, in the ordinary course of business) by any Company and (b)
any issuance or
sale of any Equity Interests of any Subsidiary of Holdings, in
the case of (a)
and (b) above, other than (i) to Borrower, (ii) to any
Subsidiary Guarantor
(other than the Land Companies) or (iii) for purposes of Section
6.06, to any
other Subsidiary (other than the Land Companies).
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance
entered into by a Lender and an assignee, and accepted by the
Administrative
Agent, substantially in the form of Exhibit B, or such other
form as shall be
approved by the Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" shall mean, when used with respect
to
the lessee under any Sale and Leaseback Transaction, as at the
time of
determination, the present value (discounted at a rate
equivalent to Borrower's
then-current weighted average cost of funds for borrowed money
as at the time of
determination, compounded on a semi-annual basis) of the total
obligations of
the lessee for rental payments during the remaining term of the
lease included
in any such Sale and Leaseback Transaction.
"AUTO-RENEWAL LETTER OF CREDIT" shall have the meaning assigned
to
such term in Section 2.18(c)(ii).
"BANKRUPTCY CASES" shall have the meaning assigned to such term
in
the first recital hereto.
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"BANKRUPTCY COURT" shall have the meaning assigned to such term
in
the first recital hereto.
"BASE RATE" shall mean, for any day, a rate per annum that is
equal
to the corporate base rate of interest established by the
Administrative Agent
from time to time; each change in the Base Rate shall be
effective on the date
such change is effective. The corporate base rate is not
necessarily the lowest
rate charged by the Administrative Agent to its customers.
"BLACK LUNG ACT" shall mean the Black Lung Benefits Act, as the
same
may be amended from time to time.
"BLACK LUNG LIABILITIES" shall mean any liability or benefit
obligations related to black lung claims and benefits under the
Black Lung
Benefits Act of 1972, 30 U.S.C. Sections 901, et seq., the
Federal Mine Safety
and Health Act of 1977, 30 U.S.C. Sections 801, et seq., the
Black Lung Benefits
Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978), and
the Black Lung
Benefits Amendments of 1981, Pub. L. No. 97-119, Title 11, 95
Stat. 1643, in
each case as amended, if applicable, and occupational
pneumoconiosis, silicosis
or other lung disease liabilities and benefits arising under
federal or state
Requirements of Law.
"BOARD" shall mean the Board of Governors of the Federal
Reserve
System of the United States.
"BOARD OF DIRECTORS" shall mean, with respect to any person, (i)
in
the case of any corporation, the board of directors of such
person, (ii) in the
case of any limited liability company, the sole manager, the
board of managers
or the board of directors of such person, as applicable, (iii)
in the case of
any partnership, the board of directors of the general partner
of such person
and (iv) in any other case, the functional equivalent of the
foregoing.
"BONDING AGREEMENTS" shall mean, collectively, the AIG
Bonding
Agreement, the AIG Indemnity Agreement, the Travelers Bonding
Agreement and the
Travelers Indemnity Agreement.
"BORROWER" shall have the meaning assigned to such term in
the
preamble hereto.
"BORROWER CHANGE OF CONTROL AGREEMENT" shall mean any lease,
contract or other agreement (in each case, other than the
Travelers Indemnity
Agreement, the Travelers Bonding Agreement and any renewal,
amendment or
replacement of the foregoing on substantially the same terms)
that prohibits,
restricts or otherwise impairs the granting or enforcement of a
Lien on the
Equity Interests in Borrower to the Collateral Agent for the
benefit of the
Secured Parties or under which the granting or enforcement of
such Lien would
result in a default, termination, right to terminate or other
remedy in favor of
the counterparty thereto.
"BORROWING" shall mean (a) Loans of the same Class and Type,
made,
converted or continued on the same date and, in the case of
Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a
Swingline Loan.
"BORROWING REQUEST" shall mean a request by Borrower in
accordance
with the terms of Section 2.03 or Section 2.17(b) and
substantially in the form
of Exhibit C, or such other form as shall be approved by the
Administrative
Agent.
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"BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or
other day on which banks in New York City are authorized or
required by law to
close; provided, however, that when used in connection with a
Eurodollar Loan,
the term "Business Day" shall also exclude any day on which
banks are not open
for dealings in dollar deposits in the London interbank
market.
"CAPITAL EXPENDITURES" shall mean, for any period, without
duplication, the increase during that period in the gross
property, plant or
equipment account in the consolidated balance sheet of Holdings
and its
consolidated Subsidiaries, determined in accordance with GAAP,
including any
increase due to the purchase of properties for cash or financed
by the
incurrence of Indebtedness, but excluding (i) any portion of
such increase
attributable to expenditures made in connection with the
replacement,
substitution or restoration of property pursuant to Section
2.10(f), (ii) any
portion of such increase attributable solely to acquisitions of
property, plant
or equipment in Permitted Acquisitions and (iii) any portion of
such increase
attributable to a Like-Kind Exchange.
"CAPITAL LEASE OBLIGATIONS" of any person shall mean the
obligations
of such person to pay rent or other amounts under any lease of
(or other
arrangement conveying the right to use) real or personal
property, or a
combination thereof, which obligations are required to be
classified and
accounted for as capital leases on a balance sheet of such
person under GAAP,
and the amount of such obligations shall be the capitalized
amount thereof
determined in accordance with GAAP.
"CASH EQUIVALENTS" shall mean, as to any person, (a)
securities
issued, or directly, unconditionally and fully guaranteed or
insured, by the
United States or any agency or instrumentality thereof (provided
that the full
faith and credit of the United States is pledged in support
thereof) having
maturities of not more than one year from the date of
acquisition by such
person; (b) time deposits and certificates of deposit or
banker's acceptances of
any Lender or any commercial bank having, or which is the
principal banking
subsidiary of a bank holding company organized under the laws of
the United
States, any state thereof or the District of Columbia having,
capital and
surplus aggregating in excess of $500.0 million and a rating of
"A" (or such
other similar equivalent rating) or higher by at least one
nationally recognized
statistical rating organization (as defined in Rule 436 under
the Securities
Act) with maturities of not more than one year from the date of
acquisition by
such person; (c) repurchase obligations with a term of not more
than 30 days for
underlying securities of the types described in clause (a) above
entered into
with any bank meeting the qualifications specified in clause (b)
above, which
repurchase obligations are secured by a valid perfected security
interest in the
underlying securities; (d) commercial paper issued by any person
incorporated in
the United States rated at least A-1 or the equivalent thereof
by Standard &
Poor's Rating Service or at least P-1 or the equivalent thereof
by Moody's
Investors Service Inc., and in each case maturing not more than
one year after
the date of acquisition by such person; (e) marketable direct
obligations issued
by any state of the United States of America or any political
subdivision of any
such state or any public instrumentality thereof, in each case
maturing within
one year after such date and having, at the time of the
acquisition thereof, a
rating of at least A-1 from Standard & Poor's Rating Service
and at least P-1
from Moody's Investors Service, Inc.; (f) tax exempted and tax
advantaged
instruments including, without limitation, municipal bonds,
auction rate
preferred stock and variable rate demand obligations with the
highest short-term
ratings by either Moody's Investors Service, Inc. or Standard
& Poor's Rating
Service or a long-term rating of AAA by Standard & Poor's
Rating Service or Aaa
by Moody's Investors Service, Inc.; and (g) investments in money
market funds
substantially all of whose assets are comprised of securities of
the types
described in clauses (a) through (f) above; and (h) demand
deposit accounts
maintained in the ordinary course of business.
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"CASH INTEREST EXPENSE" shall mean, for any period,
Consolidated
Interest Expense for such period, less the sum of (a) interest
on any
Indebtedness paid by the increase in the principal amount of
such debt including
by issuance of additional Indebtedness of such kind, (b) items
described in
clause (c) or (g)(i) of the definition of "Consolidated Interest
Expense" and
(c) gross interest income of Holdings and its consolidated
Subsidiaries for such
period.
"CASUALTY EVENT" shall mean any loss of title or any loss of
or
damage to or destruction of, or any condemnation or other taking
(including by
any Governmental Authority) of, any property of any Company.
"Casualty Event"
shall include but not be limited to any taking of all or any
part of any Real
Property of any person or any part thereof, in or by
condemnation or other
eminent domain proceedings pursuant to any Requirement of Law,
or by reason of
the temporary requisition of the use or occupancy of all or any
part of any Real
Property of any person or any part thereof by any Governmental
Authority, civil
or military.
"CERCLA" shall mean the Comprehensive Environmental
Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
section 9601 et
seq.
A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) at any time a change of control occurs under any
Material
Indebtedness;
(b) prior to an IPO, (i) the Permitted Holders cease to own at
least
10.37% of the Equity Interests of Holdings, unless, at such
time, the
aggregate principal amount of Term Loans outstanding is less
than or equal
to $50.0 million, or (ii) the Permitted Holders shall cease to
have the
same or greater rights (direct or indirect) to appoint members
of the
Board of Directors of Holdings as the Permitted Holders have on
the
Closing Date pursuant to the Original Shareholders Agreement as
in effect
on the Closing Date;
(c) following an IPO, (i) the Permitted Holders shall cease to
own
at least 6.91% of the Equity Interests of Holdings, unless, at
such time,
the aggregate principal amount of Term Loans outstanding is less
than or
equal to $50.0 million, or (ii) any "person" or "group" (as such
terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other
than one or
more Permitted Holders, is or becomes the beneficial owner (as
defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for
purposes of
this clause such person or group shall be deemed to have
"beneficial
ownership" of all securities that such person or group has the
right to
acquire, whether such right is exercisable immediately or only
after the
passage of time), directly or indirectly, of Voting Stock of
Holdings
representing more than 30% of the voting power of the total
outstanding
Voting Stock of Holdings;
(d) following an IPO, any of the following shall occur: (i)
during
any period of two consecutive years, individuals who at the
beginning of
such period constituted the Board of Directors of Holdings
(together with
any new directors whose election to such Board of Directors or
whose
nomination for election was approved by a vote of a majority of
the
members of the Board of Directors of Holdings, which members
comprising
such majority are then still in office and were either directors
at the
beginning of such period or whose election or nomination for
election was
previously so approved) cease for any reason to constitute a
majority of
the Board of Directors of Holdings; or (ii) any "person" or
"group" (as
defined above) shall (w) take any action that could reasonably
be
construed as an effort to cause the circumstance described in
clause (i),
(x) send a "bear hug letter" or similar communication to the
management of
Holdings,
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<PAGE>
(y) launch a tender offer or proxy contest or engage in similar
actions
with respect to the Voting Stock of Holdings, or (z) take any
other action
the purpose of which is to force out, or otherwise oppose the
composition
of, the Board of Directors of Holdings; provided that a Change
in Control
under this clause (d) shall not be deemed to have occurred if
and for so
long as the Permitted Holders own, or have the power to vote or
direct the
voting of, Voting Stock with sufficient voting power to elect a
majority
of the members of the Board of Directors of Holdings; or
(e) Holdings ceases to own 100% of the Equity Interests of
Borrower.
"CHANGE IN LAW" shall mean (a) the adoption of any Requirement
of
Law after the date of this Agreement, (b) any change in any
Requirement of Law
or in the interpretation or application thereof by any
Governmental Authority
after the date of this Agreement or (c) compliance by any Lender
or Issuing Bank
(or for purposes of Section 2.12(b), by any lending office of
such Lender or by
such Lender's or Issuing Bank's holding company, if any) with
any request,
guideline or directive (whether or not having the force of law)
of any
Governmental Authority made or issued after the date of this
Agreement.
"CHARGES" shall have the meaning assigned to such term in
Section
11.13.
"CLASS," when used in reference to any Loan or Borrowing, refers
to
whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans,
Term Loans or Swingline Loans and, when used in reference to any
Commitment,
refers to whether such Commitment is a Revolving Commitment,
Term Loan
Commitment or Swingline Commitment, in each case, under this
Agreement as
originally in effect or as amended in accordance with the terms
hereof pursuant
to Section 11.02(e).
"CLOSING DATE" shall mean the date of the initial Credit
Extension
under the Original Credit Agreement, which was October 1,
2004.
"COAL" shall mean coal owned by any Company, or coal that
any
Company has the right to extract, in each case located on, under
or within, or
produced or severed from, Real Property owned, leased or
operated by any
Company.
"COAL ACT" shall mean the Coal Industry Retiree Health Benefits
Act
of 1992, as amended.
"COAL AGREEMENTS" shall mean those contracts now in effect
or
hereafter entered into by any Company for the sale, purchase,
exchange,
processing or handling of Coal.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from
time to time.
"COLLATERAL" shall mean, collectively, all of the Security
Agreement
Collateral, the Mortgaged Property and all other property of
whatever kind and
nature pledged as collateral under any Security Document.
"COLLATERAL ACCOUNT" shall mean a collateral account or
sub-account
in the form of a deposit account established and maintained by
the Collateral
Agent for the benefit of the Secured Parties in accordance with
the provisions
of Section 9.01.
"COLLATERAL AGENT" shall have the meaning assigned to such term
in
the preamble hereto and includes each other person appointed as
the successor to
the Collateral Agent pursuant to Article X.
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<PAGE>
"COMMERCIAL LETTER OF CREDIT" shall mean any letter of credit
or
similar instrument issued for the purpose of providing credit
support in
connection with the purchase of materials, goods or services by
Borrower or any
of its Subsidiaries in the ordinary course of their
businesses.
"COMMITMENT" shall mean, with respect to any Lender, such
Lender's
Revolving Commitment, Term Loan Commitment or Swingline
Commitment and any
Commitment to make Term Loans or Revolving Loans of a new Class
extended by such
Lender as provided in Section 11.02(e).
"COMMITMENT FEE" shall have the meaning assigned to such term
in
Section 2.05(a).
"COMMITMENT LETTER" shall mean the Amended and Restated Bank
Facilities Commitment Letter, dated September 24, 2004, among
Holdings, UBS Loan
Finance LLC and UBS Securities LLC.
"COMPANIES" shall mean Holdings and its Subsidiaries; and
"COMPANY"
shall mean any one of them.
"COMPLIANCE CERTIFICATE" shall mean a certificate of a
Financial
Officer of Borrower substantially in the form of Exhibit D.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean that
certain
confidential information memorandum to be delivered by Holdings
to the Arranger
in accordance with the Commitment Letter.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period,
the
amortization expense of Holdings and its consolidated
Subsidiaries for such
period, determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED CURRENT ASSETS" shall mean, as at any date of
determination, the total assets of Holdings and its consolidated
Subsidiaries
which may properly be classified as current assets on a
consolidated balance
sheet of Holdings and its consolidated Subsidiaries in
accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, as at any date
of
determination, the total liabilities of Holdings and its
consolidated
Subsidiaries which may properly be classified as current
liabilities (other than
the current portion of any Loans) on a consolidated balance
sheet of Holdings
and its consolidated Subsidiaries in accordance with GAAP
(excluding cash and
Cash Equivalents).
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period,
the
depreciation expense of Holdings and its consolidated
Subsidiaries for such
period, determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated
Net
Income for such period, adjusted by (x) adding thereto, in each
case only to the
extent (and in the same proportion) deducted in determining such
Consolidated
Net Income (and with respect to the portion of Consolidated Net
Income
attributable to any Subsidiary of Holdings only if a
corresponding amount would
be permitted at the date of determination to be distributed to
Holdings by such
Subsidiary without prior approval (that has not been obtained),
pursuant to the
terms of its Organizational Documents and all agreements,
instruments and
Requirements of Law applicable to such Subsidiary or its equity
holders):
(a) Consolidated Interest Expense for such period,
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(b) Consolidated Amortization Expense for such period,
(c) Consolidated Depreciation Expense for such period,
(d) Consolidated Tax Expense for such period,
(e) costs and expenses directly incurred in connection with
the
Transactions (not to exceed $14.0 million), and
(f) the aggregate amount of all other non-cash items
reducing
Consolidated Net Income (excluding any non-cash charge that
results in an
accrual of a reserve for cash charges in any future period) for
such
period, and
(y) subtracting therefrom the aggregate amount of all non-cash
items increasing
Consolidated Net Income (other than the accrual of revenue or
recording of
receivables in the ordinary course of business) for such
period.
Other than for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on a Pro Forma Basis to
give effect to
the Acquisition, any Permitted Acquisition and any Asset Sales
(other than any
dispositions in the ordinary course of business) consummated at
any time on or
after the first day of the Test Period with respect thereto as
if the
Acquisition and each such Permitted Acquisition had been
effected on the first
day of such period and as if each such Asset Sale had been
consummated on the
day prior to the first day of such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" shall mean, for any
Test
Period, the ratio of (a) Consolidated EBITDA for such Test
Period to (b)
Consolidated Fixed Charges for such Test Period.
"CONSOLIDATED FIXED CHARGES" shall mean, for any period, the
sum,
without duplication, of
(a) Consolidated Interest Expense for such period;
(b) the aggregate amount of Capital Expenditures for such
period
(other than to the extent financed by Excluded Issuances or to
the extent
constituting Like-Kind Exchanges);
(c) all cash payments in respect of income taxes made during
such
period (net of any cash refund in respect of income taxes
actually
received during such period);
(d) the scheduled principal amount of all amortization payments
on
all Indebtedness (including the principal component of all
Capital Lease
Obligations) of Holdings and its consolidated Subsidiaries for
such period
(as determined on the first day of the respective period);
(e) the product of (i) all dividend payments on any series
of
Disqualified Capital Stock of Holdings or any of its
consolidated
Subsidiaries (other than dividend payments to Holdings or any of
its
consolidated Subsidiaries) multiplied by (ii) a fraction, the
numerator of
which is one and the denominator of which is one minus the then
current
combined federal, state and local statutory tax rate of Holdings
and its
consolidated Subsidiaries, expressed as a decimal; and
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<PAGE>
(f) the product of (i) all cash dividend payments on any
Preferred
Stock (other than Disqualified Capital Stock) of Holdings or any
of its
consolidated Subsidiaries (other than dividend payments to
Holdings or any
of its consolidated Subsidiaries) multiplied by (ii) a fraction,
the
numerator of which is one and the denominator of which is one
minus the
then current combined federal, state and local statutory tax
rate of
Holdings and its consolidated Subsidiaries, expressed as a
decimal.
"CONSOLIDATED INDEBTEDNESS" shall mean, without duplication, as
at
any date of determination, the aggregate amount of all
Indebtedness of Holdings
and its consolidated Subsidiaries, determined on a consolidated
basis in
accordance with GAAP.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any
Test
Period, the ratio of (x) Consolidated EBITDA for such Test
Period to (y)
Consolidated Interest Expense for such Test Period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period,
the
total consolidated interest expense of Holdings and its
consolidated
Subsidiaries for such period determined on a consolidated basis
in accordance
with GAAP plus, without duplication:
(a) imputed interest on Capital Lease Obligations and
Attributable
Indebtedness of Holdings and its consolidated Subsidiaries for
such
period;
(b) commissions, discounts and other fees and charges owed
by
Holdings or any of its consolidated Subsidiaries with respect to
letters
of credit securing financial obligations, bankers' acceptance
financings
and receivables financings for such period;
(c) amortization of debt issuance costs, debt discount or
premium
and other financing fees and expenses incurred by Holdings or
any of its
consolidated Subsidiaries for such period;
(d) cash contributions to any employee stock ownership plan
or
similar trust made by Holdings or any of its consolidated
Subsidiaries for
such period to the extent such contributions are used by such
plan or
trust to pay interest or fees to any person (other than Holdings
or a
Wholly Owned Subsidiary thereof) in connection with Indebtedness
incurred
by such plan or trust;
(e) all interest paid or payable for such period with respect
to
discontinued operations of Holdings or any of its
consolidated
Subsidiaries,
(f) the interest portion of any deferred payment obligations
of
Holdings or any of its consolidated Subsidiaries for such
period;
(g) all interest for such period on any Indebtedness of Holdings
or
any of its consolidated Subsidiaries of the type described in
(i) clause
(e), (f), (m) or (o) of Section 6.01 or (ii) clause (n) of
Section 6.01;
provided that (a) to the extent directly related to the
Transactions, debt
issuance costs, debt discount or premium and other financing
fees and expenses
shall be excluded from the calculation of Consolidated Interest
Expense and (b)
Consolidated Interest Expense shall be calculated after giving
effect to Hedging
Agreements (including associated costs), but excluding
unrealized gains and
losses with respect to Hedging Agreements.
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<PAGE>
Consolidated Interest Expense shall be calculated on a Pro
Forma
Basis to give effect to any Indebtedness incurred, assumed or
permanently repaid
or extinguished during the relevant Test Period in connection
with the
Acquisition, any Permitted Acquisitions and any Asset Sales
(other than any
dispositions in the ordinary course of business) as if such
incurrence,
assumption, repayment or extinguishing had been effected on the
first day of
such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net income (or loss) of Holdings and its
consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP;
provided that there
shall be excluded from such net income (to the extent otherwise
included
therein), without duplication:
(a) the net income (or loss) of any person (other than a
Subsidiary
of Borrower) in which any person other than Holdings and its
consolidated
Subsidiaries has an ownership interest, except to the extent
that cash in
an amount equal to any such income has actually been received by
Borrower
or (subject to clause (b) below) any of its consolidated
Subsidiaries
during such period;
(b) the net income of any consolidated Subsidiary of Borrower
during
such period to the extent that the declaration or payment of
dividends or
similar distributions by such Subsidiary of that income is not
permitted
by operation of the terms of its Organizational Documents or
any
agreement, instrument or Requirement of Law applicable to that
Subsidiary
during such period, except that Holdings' equity in net loss of
any such
Subsidiary for such period shall be included in determining
Consolidated
Net Income;
(c) any gain (or loss), together with any related provisions
for
taxes on any such gain (or the tax effect of any such loss),
realized
during such period by Holdings or any of its consolidated
Subsidiaries
upon any Asset Sale (other than any dispositions in the ordinary
course of
business) by Holdings or any of its consolidated
Subsidiaries;
(d) gains and losses due solely to fluctuations in currency
values
and the related tax effects according to GAAP for such
period;
(e) earnings or losses resulting from any reappraisal,
revaluation
or write-up or write-down of assets;
(f) unrealized gains and losses with respect to Hedging
Obligations
for such period; and
(g) any extraordinary or nonrecurring gain (or extraordinary
or
nonrecurring loss), together with any related provision for
taxes on any
such gain (or the tax effect of any such loss), recorded or
recognized by
Holdings or any of its consolidated Subsidiaries during such
period.
For purposes of this definition of "Consolidated Net Income,"
"nonrecurring"
means any gain or loss as of any date that is not reasonably
likely to recur
within the two years following such date; provided that if there
was a gain or
loss similar to such gain or loss within the two years preceding
such date, such
gain or loss shall not be deemed nonrecurring.
"CONSOLIDATED SECURED INDEBTEDNESS" shall mean Consolidated
Indebtedness that is secured by a Lien on any assets of any
Company.
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<PAGE>
"CONSOLIDATED TAX EXPENSE" shall mean, for any period, the
tax
expense of Holdings and its consolidated Subsidiaries for such
period,
determined on a consolidated basis in accordance with GAAP.
"CONTESTED COLLATERAL LIEN CONDITIONS" shall mean, with respect
to
any Permitted Lien of the type described in clauses (a), (b),
(f) and (g) of
Section 6.02, the following conditions:
(a) Borrower shall cause any proceeding instituted contesting
such
Lien to stay the sale or forfeiture of any portion of the
Collateral on
account of such Lien; and
(b) such Lien shall in all respects be subject and subordinate
in
priority to the Lien and security interest created and evidenced
by the
Security Documents, except if and to the extent that the law or
regulation
creating, permitting or authorizing such Lien provides that such
Lien is
or must be superior to the Lien and security interest created
and
evidenced by the Security Documents.
"CONTINGENT OBLIGATION" shall mean, as to any person, any
obligation, agreement, understanding or arrangement of such
person guaranteeing
or intended to guarantee any Indebtedness, leases, dividends or
other
obligations ("PRIMARY OBLIGATIONS") of any other person (the
"PRIMARY OBLIGOR")
in any manner, whether directly or indirectly, including any
obligation of such
person, whether or not contingent, (a) to purchase any such
primary obligation
or any property constituting direct or indirect security
therefor; (b) to
advance or supply funds (i) for the purchase or payment of any
such primary
obligation or (ii) to maintain working capital or equity capital
of the primary
obligor or otherwise to maintain the net worth or solvency of
the primary
obligor; (c) to purchase property, securities or services
primarily for the
purpose of assuring the owner of any such primary obligation of
the ability of
the primary obligor to make payment of such primary obligation;
(d) with respect
to bankers' acceptances, letters of credit and similar credit
arrangements,
until a reimbursement obligation arises (which reimbursement
obligation shall
constitute Indebtedness); or (e) otherwise to assure or hold
harmless the holder
of such primary obligation against loss in respect thereof;
provided, however,
that the term "Contingent Obligation" shall not include
endorsements of
instruments for deposit or collection in the ordinary course of
business or any
product warranties. The amount of any Contingent Obligation
shall be deemed to
be an amount equal to the stated or determinable amount of the
primary
obligation in respect of which such Contingent Obligation is
made (or, if less,
the maximum amount of such primary obligation for which such
person may be
liable, whether severally or jointly, pursuant to the terms of
the instrument
evidencing such Contingent Obligation) or, if not stated or
determinable, the
maximum reasonably anticipated liability in respect thereof
(assuming such
person is required to perform thereunder) as determined by such
person in good
faith.
"CONTROL" shall mean the possession, directly or indirectly, of
the
power to direct or cause the direction of the management or
policies of a
person, whether through the ownership of voting securities, by
contract or
otherwise, and the terms "CONTROLLING" and "CONTROLLED" shall
have meanings
correlative thereto.
"CONTROL AGREEMENT" shall have the meaning assigned to such term
in
the Security Agreement.
"CONTROLLED INVESTMENT AFFILIATE" shall mean, as to any person,
any
other person which directly or indirectly is in Control of, is
Controlled by, or
is under common Control with, such person and
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<PAGE>
is organized by such person (or any person Controlling such
person) primarily
for making equity or debt investments in Holdings or other
portfolio companies.
"CREDIT EXTENSION" shall mean, as the context may require, (i)
the
making of a Loan by a Lender or (ii) the issuance of any Letter
of Credit, or
the amendment, extension or renewal of any existing Letter of
Credit, by the
Issuing Bank; provided that Credit Extensions shall not include
conversions or
continuations of existing Loans.
"DEBT ISSUANCE" shall mean the incurrence by any Company of
any
Indebtedness on or after the Closing Date (excluding any
Indebtedness incurred
pursuant to Section 6.01, other than Indebtedness incurred
pursuant to Section
6.01(n)).
"DEBT SERVICE" shall mean, for any period, Cash Interest Expense
for
such period plus scheduled principal amortization of all
Indebtedness for such
period.
"DEFAULT" shall mean any event, occurrence or condition which
is, or
upon notice, lapse of time or both would constitute, an Event of
Default.
"DISQUALIFIED CAPITAL STOCK" shall mean any Equity Interest
which,
by its terms (or by the terms of any security into which it is
convertible or
for which it is exchangeable), or upon the happening of any
event, (a) matures
(excluding any maturity as the result of an optional redemption
by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking
fund obligation or
otherwise, or is redeemable at the option of the holder thereof,
in whole or in
part, on or prior to the first anniversary of the Final Maturity
Date, (b) is
convertible into or exchangeable (unless at the sole option of
the issuer
thereof) for (i) debt securities or (ii) any Equity Interests
referred to in (a)
above, in each case at any time on or prior to the first
anniversary of the
Final Maturity Date, or (c) contains any repurchase obligation
which may come
into effect prior to payment in full of all Obligations.
"DIVIDEND" with respect to any person shall mean that such
person
has declared or paid a dividend or returned any equity capital
to the holders of
its Equity Interests or authorized or made any other
distribution, payment or
delivery of property (other than Qualified Capital Stock of such
person) or cash
to the holders of its Equity Interests as such, or redeemed,
retired, purchased
or otherwise acquired, directly or indirectly, for consideration
any of its
Equity Interests outstanding (or any options or warrants issued
by such person
with respect to its Equity Interests), or set aside any funds
for any of the
foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase
or otherwise acquire for consideration any of the Equity
Interests of such
person outstanding (or any options or warrants issued by such
person with
respect to its Equity Interests). Without limiting the
foregoing, "Dividends"
with respect to any person shall also include all payments made
or required to
be made by such person with respect to any stock appreciation
rights, plans,
equity incentive or achievement plans or any similar plans or
setting aside of
any funds for the foregoing purposes.
"DOCUMENTATION AGENT" shall have the meaning assigned to such
term
in the preamble hereto.
"DOLLARS" or "$" shall mean lawful money of the United
States.
"EMBARGOED PERSON" shall have the meaning assigned to such term
in
Section 6.21.
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<PAGE>
"ENVIRONMENT" shall mean ambient air, surface water and
groundwater
(including potable water, navigable water and wetlands), the
land surface or
subsurface strata, natural resources, the workplace (including
indoor air) or as
otherwise defined in any Environmental Law.
"ENVIRONMENTAL CLAIM" shall mean any claim, notice, demand,
order,
action, suit, proceeding or other communication alleging
liability for
investigation, remediation, removal, cleanup, Response,
corrective action,
damages to natural resources, personal injury, property damage,
fines, penalties
or other costs resulting from, related to or arising out of (i)
the presence,
Release or threatened Release in or into the Environment of, or
exposure to,
Hazardous Materials at any location, (ii) the Reclamation, or
alleged need for
Reclamation, of any current or former Mines, or (iii) any
violation of
Environmental Law, and shall include any claim seeking damages,
contribution,
indemnification, cost recovery, compensation or injunctive
relief resulting
from, related to or arising out of the presence, Release or
threatened Release
of Hazardous Materials or alleged injury or threat of injury to
health, safety
or the Environment as a result thereof.
"ENVIRONMENTAL LAWS" shall mean any and all applicable
former,
present and future Requirements of Law relating to protection of
public health
or the Environment, the Release or threatened Release of
Hazardous Materials,
natural resources or natural resource damages, or occupational
safety or health.
Environmental Laws shall include, but not be limited to the
CERCLA; the Resource
Conservation and Recovery Act; the Toxic Substances Control Act;
the Federal
Water Pollution Control Act; the Hazardous Materials
Transportation Act; the
Clean Air Act; the Safe Drinking Water Act; the Occupational
Safety and Health
Act; the Federal Insecticide, Fungicide and Rodenticide Act; and
the Endangered
Species Act, each as amended, and any comparable state and local
laws or
regulations. Environmental Laws shall also include, but not be
limited to, any
and all applicable Mining Laws.
"ENVIRONMENTAL OR MINING PERMIT" shall mean any permit,
license,
approval, consent or other authorization by or from a
Governmental Authority
required for coal mining or Reclamation or otherwise required
under
Environmental Law or Mining Law.
"EQUITY FINANCING" shall mean the cash equity investment in
Holdings
by the Initial Investors on or prior to the Closing Date, in an
amount not less
than $146.25 million on terms and conditions previously
disclosed in Sellers'
third amended joint plan of reorganization filed with the
Bankruptcy Court and
otherwise satisfactory to the Administrative Agent.
"EQUITY INTEREST" shall mean, with respect to any person, any
and
all shares, interests, participations or other equivalents,
including membership
interests (however designated, whether voting or nonvoting), of
equity of such
person, including, if such person is a partnership, partnership
interests
(whether general or limited) and any other equity interest or
participation that
confers on a person the right to receive a share of the profits
and losses of,
or distributions of property of, such partnership, whether
outstanding on the
Closing Date or issued after the Closing Date, but excluding
debt securities
convertible or exchangeable into such equity.
"EQUITY ISSUANCE" shall mean, without duplication, (i) any
issuance
or sale by Holdings after the Closing Date of any Equity
Interests in Holdings
(including any Equity Interests issued upon exercise of any
warrant or option)
or any warrants or options to purchase Equity Interests or (ii)
any contribution
to the capital of Holdings after the Closing Date; provided,
however, that an
Equity Issuance shall not include (w) any Preferred Stock
Issuance or Debt
Issuance, (x) the exercise of the Underwriting Warrants on or
immediately after
the Closing Date, (y) any such sale or issuance by Holdings of
not more than an
aggregate amount of 15% of its Equity Interests (including its
Equity Interests
issued upon
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<PAGE>
exercise of any warrant or option or warrants or options to
purchase its Equity
Interests but excluding Disqualified Capital Stock), in each
case, to directors,
officers or employees of any Company and (z) any Excluded
Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean, with respect to any person, any
trade
or business (whether or not incorporated) that, together with
such person, is
treated as a single employer under Section 414(b) or (c) of the
Code, or solely
for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as
a single employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event," as defined
in
Section 4043 of ERISA or the regulations issued thereunder, with
respect to a
Plan (other than an event for which the 30-day notice period is
waived by
regulation); (b) the existence with respect to any Plan of an
"accumulated
funding deficiency" (as defined in Section 412 of the Code or
Section 302 of
ERISA), whether or not waived, the failure to make by its due
date a required
installment under Section 412(m) of the Code with respect to any
Plan or the
failure to make any required contribution to a Multiemployer
Plan; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an
application for a waiver of the minimum funding standard with
respect to any
Plan; (d) the incurrence by any Company or any of its ERISA
Affiliates of any
liability under Title IV of ERISA with respect to the
termination of any Plan;
(e) the incurrence by any Company, any of its ERISA Affiliates
or any its
"related persons" (as defined in the Coal Act) of any liability
under the Coal
Act except with respect to premiums or other payments required
thereunder which
have been paid when due; (f) the incurrence by any Company or
any of its ERISA
Affiliates of any liability under the Black Lung Act; (g) the
receipt by any
Company or any of its ERISA Affiliates from the PBGC or a plan
administrator of
any notice relating to the intention to terminate any Plan or
Plans or to
appoint a trustee to administer any Plan, or the occurrence of
any event or
condition which would reasonably be expected to constitute
grounds under ERISA
for the termination of, or the appointment of a trustee to
administer, any Plan;
(h) the incurrence by any Company or any of its ERISA Affiliates
of any
liability with respect to the withdrawal from any Plan or
Multiemployer Plan;
(i) the receipt by any Company or its ERISA Affiliates of any
notice, concerning
the imposition of Withdrawal Liability or a determination that a
Multiemployer
Plan is, or is expected to be, insolvent or in reorganization,
within the
meaning of Title IV of ERISA; (j) the making of any amendment to
any Plan which
could result in the imposition of a lien or the posting of a
bond or other
security; and (k) the occurrence of a nonexempt prohibited
transaction (within
the meaning of Section 4975 of the Code or Section 406 of ERISA)
which would
reasonably be expected to result in liability of any
Company.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
"EURODOLLAR LOAN" shall mean any Eurodollar Revolving Loan
or
Eurodollar Term Loan.
"EURODOLLAR REVOLVING BORROWING" shall mean a Borrowing
comprised of
Eurodollar Revolving Loans.
"EURODOLLAR REVOLVING LOAN" shall mean any Revolving Loan
bearing
interest at a rate determined by reference to the Adjusted LIBOR
Rate in
accordance with the provisions of Article II.
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<PAGE>
"EURODOLLAR TERM BORROWING" shall mean a Borrowing comprised
of
Eurodollar Term Loans.
"EURODOLLAR TERM LOAN" shall mean any Term Loan bearing interest
at
a rate determined by reference to the Adjusted LIBOR Rate in
accordance with the
provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term
in
Article VIII.
"EVERGREEN MINE" shall mean the Mine owned and operated by one
or
more of the Companies and located in Webster County, West
Virginia.
"EXCESS AMOUNT" shall have the meaning assigned to such term
in
Section 2.10(h)(ii).
"EXCESS CASH FLOW" shall mean, for any Excess Cash Flow
Period,
Consolidated EBITDA for such Excess Cash Flow Period, minus,
without
duplication:
(a) Debt Service for such Excess Cash Flow Period;
(b) any voluntary prepayments of Term Loans and any
permanent
voluntary reductions to the Revolving Commitments to the extent
that an
equal amount of the Revolving Loans simultaneously is repaid, in
each case
so long as such amounts are not already reflected in Debt
Service, during
such Excess Cash Flow Period;
(c) Capital Expenditures during such Excess Cash Flow Period
(excluding Capital Expenditures made in such Excess Cash Flow
Period where
a certificate in the form contemplated by the following clause
(d) was
previously delivered) that are paid in cash;
(d) Capital Expenditures that Holdings or any of its
Subsidiaries
shall, during such Excess Cash Flow Period, become obligated to
make but
that are not made during such Excess Cash Flow Period; provided
that
Borrower shall deliver a certificate to the Administrative Agent
not later
than 90 days after the end of such Excess Cash Flow Period,
signed by a
Responsible Officer of Borrower and certifying that such
Capital
Expenditures will be made in the following Excess Cash Flow
Period;
(e) the aggregate amount of Investments made in cash during
such
period pursuant to Sections 6.04(e) and (m) (other than
Investments made
with Excluded Issuances);
(f) taxes of Holdings and its Subsidiaries that were paid in
cash
during such Excess Cash Flow Period or will be paid within six
months
after the end of such Excess Cash Flow Period and for which
reserves have
been established;
(g) an amount equal to any increase in Consolidated Current
Assets
minus Consolidated Current Liabilities from the beginning to the
end of
such Excess Cash Flow Period;
(h) losses excluded from the calculation of Consolidated Net
Income
by operation of clause (c) or (g) of the definition thereof that
are paid
in cash during such Excess Cash Flow Period;
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<PAGE>
(i) to the extent added to determine Consolidated EBITDA, all
items
that did not result from a cash payment to Holdings or any of
its
consolidated Subsidiaries on a consolidated basis during such
Excess Cash
Flow Period; and
(j) solely for the Excess Cash Flow Period ending on December
31,
2005, $10.0 million;
provided that any amount deducted pursuant of any of the
foregoing clauses that
will be paid after the close of such Excess Cash Flow Period
shall not be
deducted again in a subsequent Excess Cash Flow Period; plus,
without
duplication:
(i) an amount equal to any decrease in Consolidated Current
Assets
minus Consolidated Current Liabilities from the beginning to the
end of
such Excess Cash Flow Period;
(ii) all proceeds received during such Excess Cash Flow Period
of
any Indebtedness to the extent used to finance any Capital
Expenditure
(other than Indebtedness under this Agreement to the extent
there is no
corresponding deduction to Excess Cash Flow above in respect of
the use of
such borrowings);
(iii) to the extent the amount of any permitted Capital
Expenditures
referred to in (d) above do not occur in the Excess Cash Flow
Period
specified in any certificate of Borrower provided pursuant to
(d) above,
the amounts of Capital Expenditures that were not so made in the
Excess
Cash Flow Period specified in such certificate;
(iv) to the extent not included in the computation of
Consolidated
EBITDA, any return on or in respect of investments received in
cash during
such period, which investments were made pursuant to Section
6.04(m)
(other than investments made from Excluded Issuances);
(v) income or gain excluded from the calculation of Consolidated
Net
Income by operation of clause (c) or (g) of the definition
thereof that is
realized in cash during such Excess Cash Flow Period (net of any
items
relating thereto of a nature referred to in clauses (i) through
(iv) of
the definition of Net Cash Proceeds to the extent not already
deducted in
determining such income or gain and except to the extent such
income or
gain requires a mandatory prepayment pursuant to Section
2.10);
(vi) to the extent deducted in the computation of
Consolidated
EBITDA, interest income; and
(vii) to the extent subtracted in determining Consolidated
EBITDA,
all items that did not result from a cash payment by Holdings or
any of
its consolidated Subsidiaries on a consolidated basis during
such Excess
Cash Flow Period.
"EXCESS CASH FLOW PERIOD" shall mean each fiscal year of
Borrower
ending on or after December 31, 2005.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as
amended.
"EXCLUDED ISSUANCE" shall mean (i) an issuance and sale of
Qualified
Capital Stock of Holdings to one or more persons who own Equity
Interests in
Holdings immediately prior to such issuance and sale, to the
extent such
Qualified Capital Stock is used, or the Net Cash Proceeds
thereof are
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<PAGE>
used, within 270 days of the consummation of such issuance and
sale, to finance
Capital Expenditures or one or more Permitted Acquisitions, and
which such Net
Cash Proceeds, to the extent they exceed $1.0 million in any
fiscal year, shall
be deposited by Borrower in the Collateral Account and released
only pursuant to
Article IX, or (ii) an issuance of Indebtedness pursuant to
Section 6.01(n) and
subject to Section 2.10(d), if applicable, so long as after
giving effect to the
incurrence of such Indebtedness, the Leverage Ratio is at least
0.25 to 1.00
less than the maximum Leverage Ratio permitted for the most
recent Test Period
as set forth in Section 6.10(a), calculated on a Pro Forma
Basis.
"EXCLUDED TAXES" shall mean, with respect to the
Administrative
Agent, any Lender, the Issuing Bank or any other recipient of
any payment to be
made by or on account of any obligation of Borrower hereunder,
(a) income or
franchise taxes imposed on (or measured by) its net income by
the United States,
or by the jurisdiction under the laws of which such recipient is
organized or in
which its principal office is located or, in the case of any
Lender, in which
its applicable lending office is located, and (b) in the case of
a Foreign
Lender (other than an assignee pursuant to a request by Borrower
under Section
2.16), any withholding tax that is imposed on amounts payable to
such Foreign
Lender at the time such Foreign Lender becomes a party to this
Agreement (or
designates a new lending office) or is attributable to such
Foreign Lender's
failure to comply with Section 2.15(e) or inability to establish
pursuant to
Section 2.15(e) that it is entitled to a complete exemption from
withholding tax
on or before the date such Foreign Lender becomes a party to
this Agreement,
except to the extent that such Foreign Lender (or its assignor,
if any) was
entitled, at the time of designation of a new lending office (or
assignment), to
receive additional amounts from Borrower with respect to such
withholding tax
pursuant to Section 2.15(a) (it being understood and agreed, for
the avoidance
of doubt, that any withholding tax imposed on a Foreign Lender
as a result of a
Change in Law or regulation or interpretation thereof occurring
after the time
such Foreign Lender became a party to this Agreement shall not
be an Excluded
Tax).
"EXECUTIVE ORDER" shall have the meaning assigned to such term
in
Section 3.24.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the
weighted
average of the rates on overnight federal funds transactions
with members of the
Federal Reserve System of the United States arranged by federal
funds brokers,
as published on the next succeeding 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 the day for such
transactions received by
the Administrative Agent from three federal funds brokers of
recognized standing
selected by it.
"FEE LETTER" shall mean the Amended and Restated Bank Facilities
Fee
Letter, dated September 24, 2004, among Holdings, UBS Loan
Finance LLC and UBS
Securities LLC.
"FEES" shall mean the Commitment Fees, the Administrative
Agent
Fees, the LC Participation Fees and the LC Fronting Fees.
"FINAL MATURITY DATE" shall mean the later of the Revolving
Maturity
Date and the Term Loan Maturity Date.
"FINANCIAL OFFICER" of any person shall mean the chief
financial
officer, principal accounting officer, treasurer or controller
of such person,
or any officer with an equivalent position performing duties
normally
attributable to any of the foregoing.
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"FIRREA" shall mean the Financial Institutions Reform, Recovery
and
Enforcement Act of 1989.
"FOREIGN LENDER" shall mean any Lender that is not, for
United
States federal income tax purposes, (i) a citizen or resident of
the United
States, (ii) a corporation or entity treated as a corporation
created or
organized in or under the laws of the United States, or any
political
subdivision thereof, (iii) an estate whose income is subject to
U.S. federal
income taxation regardless of its source or (iv) a trust if a
court within the
United States is able to exercise primary supervision over the
administration of
such trust and one or more United States persons have the
authority to control
all substantial decisions of such trust.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary that is organized
under
the laws of a jurisdiction other than the United States or any
state thereof or
the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in
the
United States applied on a consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local
or
foreign court, central bank or governmental agency, authority,
instrumentality
or regulatory body or any subdivision thereof.
"GOVERNMENTAL REAL PROPERTY DISCLOSURE REQUIREMENTS" shall mean
any
Requirement of Law of any Governmental Authority requiring
notification of the
buyer, lessee, mortgagee, assignee or other transferee of any
Real Property,
facility, establishment or business, or notification,
registration or filing to
or with any Governmental Authority, in connection with the sale,
lease,
mortgage, assignment or other transfer (including any transfer
of control) of
any Real Property, facility, establishment or business, of the
actual or
threatened presence or Release in or into the Environment, or
the use, disposal
or handling of Hazardous Materials on, at, under or near the
Real Property,
facility, establishment or business to be sold, leased,
mortgaged, assigned or
transferred.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to
such
term in Section 7.01.
"GUARANTEES" shall mean the guarantees issued pursuant to
Article
VII by Holdings and the Subsidiary Guarantors.
"GUARANTORS" shall mean Holdings and the Subsidiary
Guarantors.
"HAZARDOUS MATERIALS" shall mean the following: hazardous
substances; hazardous wastes; polychlorinated biphenyls ("PCBS")
or any
equipment containing PCBs; asbestos or any asbestos-containing
materials in any
form or condition; radon or any other radioactive materials
including any
source, special nuclear or by-product material; petroleum, crude
oil or any
fraction thereof; any Coal ash, Coal combustion by-products or
waste, boiler
slag, scrubber residue or flue desulphurization material; and
any other
pollutant or contaminant or chemicals, wastes, materials,
compounds,
constituents or substances, which are prohibited, limited or
regulated by or
pursuant to, or which could give rise to liability under,
Environmental Laws.
"HEDGING AGREEMENT" shall mean any swap, cap, collar,
forward
purchase or similar agreements or arrangements dealing with
interest rates,
currency exchange rates or commodity prices, either generally or
under specific
contingencies.
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<PAGE>
"HEDGING OBLIGATIONS" shall mean obligations under or with
respect
to Hedging Agreements.
"HOLDINGS" shall have the meaning assigned to such term in
the
preamble hereto.
"HOLDINGS LEASE" shall mean the Coal Mining Lease, dated as of
May
22, 1998, between Ark Land Company, as lessor and Holdings (as
successor to
Leslie Resources, Inc.), as lessee.
"INDEBTEDNESS" of any person shall mean, without duplication,
(a)
all obligations of such person for borrowed money or advances;
(b) all
obligations of such person evidenced by bonds, debentures, notes
or similar
instruments; (c) all obligations of such person upon which
interest charges are
customarily paid or accrued; (d) all obligations of such person
under
conditional sale or other title retention agreements relating to
property
purchased by such person; (e) all obligations of such person
issued or assumed
as the deferred purchase price of property or services
(excluding trade accounts
payable and accrued obligations incurred in the ordinary course
of business on
normal trade terms and not overdue by more than 150 days); (f)
all Indebtedness
of others secured by any Lien on property owned or acquired by
such person,
whether or not the obligations secured thereby have been
assumed, but limited to
the lesser of the fair market value of such property and the
aggregate amount of
the obligations so secured; (g) all Capital Lease Obligations,
Purchase Money
Obligations and synthetic lease obligations of such person; (h)
all Hedging
Obligations to the extent required to be reflected on a balance
sheet of such
person (provided that Hedging Obligations will not be considered
Indebtedness
for purposes of the definition of "Material Indebtedness" and
Section 6.10); (i)
all Attributable Indebtedness of such person; (j) all
obligations of such person
for the reimbursement of any obligor in respect of letters of
credit, letters of
guaranty, surety bonds, bankers' acceptances and similar credit
transactions;
and (k) all Contingent Obligations of such person in respect of
Indebtedness or
obligations of others of the kinds referred to in clauses (a)
through (j) above.
The Indebtedness of any person shall include the Indebtedness of
any other
entity (including any partnership in which such person is a
general partner) to
the extent such person is liable therefor as a result of such
person's ownership
interest in or other relationship with such entity, except
(other than in the
case of general partner liability) to the extent that terms of
such Indebtedness
expressly provide that such person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded
Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in
Section
11.03(b).
"INFORMATION" shall have the meaning assigned to such term
in
Section 11.12.
"INITIAL INVESTORS" shall mean Sponsor, its Controlled
Investment
Affiliates, one or more other investors listed on Schedule
1.01(a) hereto and
other investors reasonably satisfactory to the Administrative
Agent and the
Arranger.
"INSURANCE POLICIES" shall mean the insurance policies and
coverages
required to be maintained by each Loan Party which is an owner
of Mortgaged
Property with respect to the applicable Mortgaged Property
pursuant to Section
5.04 and all renewals and extensions thereof.
"INSURANCE REQUIREMENTS" shall mean, collectively, all
provisions of
the Insurance Policies, all requirements of the issuer of any of
the Insurance
Policies and all orders, rules, regulations and any other
requirements of the
National Board of Fire Underwriters (or any other body
exercising
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<PAGE>
similar functions) binding upon each Loan Party which is an
owner of Mortgaged
Property and applicable to the Mortgaged Property or any use or
condition
thereof.
"INTELLECTUAL PROPERTY" shall have the meaning assigned to such
term
in Section 3.06(a).
"INTERCOMPANY NOTE" shall mean a promissory note substantially
in
the form of Exhibit O.
"INTEREST ELECTION REQUEST" shall mean a request by Borrower
to
convert or continue a Revolving Borrowing or Term Borrowing in
accordance with
Section 2.08(b), substantially in the form of Exhibit E.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR
Loan
(including Swingline Loans), each January 10, April 10, July 10
and October 10
to occur during any period in which such Loan is outstanding,
(b) with respect
to any Eurodollar Loan, the last day of the Interest Period
applicable to the
Borrowing of which such Loan is a part and, in the case of a
Eurodollar Loan
with an Interest Period of more than three months' duration,
each day prior to
the last day of such Interest Period that occurs at intervals of
three months'
duration after the first day of such Interest Period, (c) with
respect to any
Revolving Loan or Swingline Loan, the Revolving Maturity Date or
such earlier
date on which the Revolving Commitments are terminated and (d)
with respect to
any Term Loan, the Term Loan Maturity Date.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Borrowing, (x) until a Successful Syndication (as defined in the
Commitment
Letter) has occurred, the period commencing on the date of such
Borrowing and
ending seven days thereafter, or (y) after a Successful
Syndication has
occurred, the period commencing on the date of such Borrowing
and ending on the
numerically corresponding day in the calendar month that is one,
two, three or
six months (or, if each affected Lender so agrees, nine months)
thereafter, as
Borrower may elect; provided that (i) if any Interest Period
would end on a day
other than a Business Day, such Interest Period shall be
extended to the next
succeeding Business Day unless such next succeeding Business Day
would fall in
the next calendar month, in which case such Interest Period
shall end on the
next preceding Business Day, and (ii) any Interest Period that
commences on the
last Business Day of a calendar month (or on a day for which
there is no
numerically corresponding day in the last calendar month of such
Interest
Period) shall end on the last Business Day of the last calendar
month of such
Interest Period. For purposes hereof, the date of a Borrowing
initially shall be
the date on which such Borrowing is made and thereafter shall be
the effective
date of the most recent conversion or continuation of such
Borrowing; provided,
however, that an Interest Period shall be limited to the extent
required under
Section 2.03(e).
"INVESTMENTS" shall have the meaning assigned to such term
in
Section 6.04.
"IPO" shall mean the first underwritten public offering by
Holdings
of its Equity Interests after the Closing Date pursuant to a
registration
statement filed with the Securities and Exchange Commission in
accordance with
the Securities Act.
"ISSUING BANK" shall mean, as the context may require, (a) UBS
AG,
Stamford Branch, with respect to Letters of Credit issued by it;
(b) any other
Lender that may become an Issuing Bank pursuant to Section
2.18(j) or 2.18(k)
with respect to Letters of Credit issued by such Lender; or (c)
collectively,
all of the foregoing.
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"JOINDER AGREEMENT" shall mean a joinder agreement substantially
in
the form of Exhibit F.
"LAND COMPANIES" shall mean, collectively, ICG Eastern Land,
LLC,
ICG Hazard Land, LLC and any other Wholly Owned Subsidiary of an
operating
Subsidiary of Borrower that does not hold any assets other than
Subsidiary
Change of Control Agreements.
"LC COMMITMENT" shall mean the commitment of the Issuing Bank
to
issue Letters of Credit pursuant to Section 2.18. The amount of
the LC
Commitment shall initially be $60.0 million, but in no event
shall exceed the
aggregate amount of Revolving Commitments.
"LC DISBURSEMENT" shall mean a payment or disbursement made by
the
Issuing Bank pursuant to a Letter of Credit.
"LC EXPOSURE" shall mean at any time the sum of (a) the
aggregate
undrawn amount of all outstanding Letters of Credit at such time
plus (b) the
aggregate principal amount of all LC Reimbursement Obligations
outstanding at
such time. The LC Exposure of any Revolving Lender at any time
shall mean its
Pro Rata Percentage of the aggregate LC Exposure at such
time.
"LC FRONTING FEE" shall have the meaning assigned to such term
in
Section 2.05(c).
"LC PARTICIPATION FEE" shall have the meaning assigned to such
term
in Section 2.05(c).
"LC REIMBURSEMENT OBLIGATIONS" shall mean Borrower's
obligations
under Section 2.18(e) to reimburse LC Disbursements.
"LC REQUEST" shall mean a request by Borrower in accordance with
the
terms of Section 2.18(b) and substantially in the form of
Exhibit G, or such
other form as shall be approved by the Administrative Agent.
"LC SUB-ACCOUNT" shall have the meaning assigned to such term
in
Section 9.01(d).
"LEASES" shall mean any and all leases, subleases,
tenancies,
options, concession agreements, rental agreements, occupancy
agreements,
franchise agreements, access agreements and any other agreements
(including all
amendments, extensions, replacements, renewals, modifications
and/or guarantees
thereof), whether or not of record and whether now in existence
or hereafter
entered into, affecting the use or occupancy of all or any
portion of any Real
Property.
"LENDER ADDENDUM" shall mean with respect to any Lender on
the
Restatement Date, a lender addendum in the form of Exhibit H, to
be executed and
delivered by such Lender on the Restatement Date as provided in
Section 11.14.
"LENDER AFFILIATE" shall mean with respect to any Lender that is
a
fund that invests in commercial loans, any other fund that
invests in commercial
loans and is managed or advised by the same investment advisor
as such Lender or
by an Affiliate of such advisor.
"LENDERS" shall mean (a) the financial institutions that have
become
a party hereto pursuant to a Lender Addendum, other than, in
each case, any such
financial institution that has ceased to be a party hereto
pursuant to an
Assignment and Acceptance, and (b) any financial institution
that has become a
party hereto pursuant to an Assignment and Acceptance, other
than, in each case,
any such
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financial institution that has ceased to be a party hereto
pursuant to an
Assignment and Acceptance. Unless the context clearly indicates
otherwise, the
term "Lenders" shall include the Swingline Lender.
"LESLIE MINE" shall mean the Mines owned and operated by one or
more
of the Companies and located in Clay, Knott, Leslie, Perry and
Whitley Counties
in Kentucky.
"LETTER OF CREDIT" shall mean any Standby Letter of Credit
or
Commercial Letter of Credit issued or to be issued by the
Issuing Bank under the
LC Commitment for the account of Borrower pursuant to Section
2.18.
"LETTER OF CREDIT EXPIRATION DATE" shall mean the date that is
30
days prior to the Revolving Maturity Date.
"LEVERAGE RATIO" shall mean, at any date of determination, the
ratio
of Consolidated Indebtedness on such date to Consolidated EBITDA
for the Test
Period then most recently ended.
"LIBOR RATE" shall mean, with respect to any Eurodollar
Borrowing
for any Interest Period therefor, the rate per annum determined
by the
Administrative Agent to be the arithmetic mean (rounded to the
nearest 1/100th
of 1%) of the offered rates for deposits in dollars with a term
comparable to
such Interest Period that appears on the Telerate British
Bankers Assoc.
Interest Settlement Rates Page (as defined below) at
approximately 11:00 a.m.,
London, England time, on the second full Business Day preceding
the first day of
such Interest Period; provided, however, that (i) if no
comparable term for an
Interest Period is available, the LIBOR Rate shall be determined
using the
weighted average of the offered rates for the two terms most
nearly
corresponding to such Interest Period and (ii) if there shall at
any time no
longer exist a Telerate British Bankers Assoc. Interest
Settlement Rates Page,
"LIBOR Rate" shall mean, with respect to each day during each
Interest Period
pertaining to Eurodollar Borrowings comprising part of the same
Borrowing, the
rate per annum equal to the rate at which the Administrative
Agent is offered
deposits in dollars at approximately 11:00 a.m., London, England
time, two
Business Days prior to the first day of such Interest Period in
the London
interbank market for delivery on the first day of such Interest
Period for the
number of days comprised therein and in an amount comparable to
its portion of
the amount of such Eurodollar Borrowing to be outstanding during
such Interest
Period. "TELERATE BRITISH BANKERS ASSOC. INTEREST SETTLEMENT
RATES PAGE" shall
mean the display designated as Page 3750 on the Telerate System
Incorporated
Service (or such other page as may replace such page on such
service for the
purpose of displaying the rates at which dollar deposits are
offered by leading
banks in the London interbank deposit market).
"LIEN" shall mean, with respect to any property, (a) any
mortgage,
deed of trust, lien, pledge, claim, charge, assignment,
hypothecation, security
interest or other encumbrance of any kind or any filing of any
financing
statement under the UCC or any other similar notice of Lien
under any similar
notice or recording statute of any Governmental Authority,
including any
easement, right-of-way or other encumbrance on title to Real
Property, in each
of the foregoing cases whether voluntary or imposed by
Requirement of Law, and
any agreement to give any of the foregoing; (b) the interest of
a vendor or a
lessor under any conditional sale agreement, capital lease or
title retention
agreement (or any financing lease having substantially the same
economic effect
as any of the foregoing) relating to such property; and (c) in
the case of
securities, any purchase option, call or similar right of a
third party with
respect to such securities.
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"LIKE-KIND EXCHANGE" shall mean the exchange of equipment,
reserves
or similar property for property with a reasonably equivalent
monetary value in
the context of the Companies' normal business operations.
"LOAN DOCUMENTS" shall mean this Agreement, the Letters of
Credit,
the Notes (if any), the Security Documents, the Commitment
Letter, the Fee
Letter, the Sponsor Syndication Letter, any documents or
certificates executed
by any Company in favor of the Issuing Bank relating to Letters
of Credit, and
all other documents, instruments and agreements executed and
delivered by a Loan
Party for the benefit of any Agent, the Issuing Bank or any
Lender in connection
herewith.
"LOAN PARTIES" shall mean Holdings, Borrower and the
Subsidiary
Guarantors.
"LOANS" shall mean, as the context may require, a Revolving
Loan, a
Term Loan or a Swingline Loan.
"MARGIN STOCK" shall have the meaning assigned to such term
in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a material adverse
effect
on the business, property, results of operations or condition,
financial or
otherwise, of the Companies, taken as a whole; (b) material
impairment of the
ability of the Loan Parties to fully and timely perform any of
their obligations
under any Loan Document; (c) material impairment of the rights
of or benefits or
remedies available to the Lenders or the Collateral Agent under
any Loan
Document; or (d) a material adverse effect on the Collateral
(taken as a whole)
or the Liens in favor of the Collateral Agent (for its benefit
and for the
benefit of the other Secured Parties) on the Collateral or the
priority of such
Liens.
"MATERIAL AGREEMENTS" shall mean the Acquisition Documents,
the
Reclamation Documents, the Material Coal Agreements and any
other agreement to
which any Company is a party, the termination of which,
individually or in
conjunction with any other agreements, would reasonably be
expected to result in
a Material Adverse Effect.
"MATERIAL COAL AGREEMENTS" shall mean (a) any Coal Agreement
listed
on Schedule 1.01(b) and (b) any other Coal Agreement pursuant to
which the
amounts received by, or the amounts paid by, the Companies in
any year exceed 5%
of Consolidated EBITDA for such year.
"MATERIAL INDEBTEDNESS" shall mean any Indebtedness (other than
the
Loans and Letters of Credit) of the Companies in an aggregate
outstanding
principal amount exceeding $5.0 million.
"MAXIMUM RATE" shall have the meaning assigned to such term
in
Section 11.13.
"MINE" shall mean any excavation or opening into the earth now
and
hereafter made from which Coal is or can be extracted on or from
any of the
properties owned or leased by any Company, together with all
appurtenances,
fixtures, structures, improvements and all tangible property of
whatsoever kind
or nature in connection therewith.
"MINIMUM SECURED RESERVES" shall mean the aggregate amount (in
tons)
of Coal reserves included in the Collateral on the date
immediately following
the Post Closing Action Completion Date, as certified in an
Officers'
Certificate of Borrower delivered to the Administrative Agent in
accordance with
Section 5.15(a).
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"MINING LAWS" shall mean any and all applicable former, present
and
future Requirements of Law relating to surface or subsurface
mining operations
and activities. Mining Laws shall include, but not be limited
to, the Federal
Coal Leasing Amendments Act; the Surface Mining Control and
Reclamation Act; all
other applicable land reclamation and use statutes and
regulations; the Federal
Mine Safety Act of 1977; the Black Lung Act; and the Coal Act,
each as amended,
and any comparable state and local laws or regulations.
"MINING LEASE" shall mean a Lease that provides a Company the
right
to mine Coal reserves.
"MINING TITLE" shall mean fee simple title to surface and/or
Coal or
an undivided interest in fee simple title thereto or a leasehold
interest in all
or an undivided interest in surface and/or Coal together with no
less than those
real properties, easements, licenses, privileges, rights and
appurtenances as
are necessary to mine, remove, process and transport Coal in the
manner
presently operated.
"MORTGAGE" shall mean an agreement, including, but not limited
to, a
mortgage, deed of trust or any other document, creating and
evidencing a Lien on
a Mortgaged Property, which (i) in the case of Real Property
owned in fee, shall
be substantially in the form of Exhibit I-1 or other form
reasonably
satisfactory to the Collateral Agent, and (ii) in the case of
leased Real
Property, shall be substantially in the form of Exhibit I-2 or
other form
reasonably satisfactory to the Collateral Agent, in each case,
with such
schedules and including such provisions as shall be necessary to
conform such
document to applicable Requirements of Law or as shall be
customary under
applicable Requirements of Law.
"MORTGAGED PROPERTY" shall mean (a) each Real Property
identified on
Schedule 1.01(c) hereto and (b) each Real Property, if any,
which shall be
subject to a Mortgage delivered after the Closing Date pursuant
to Section
5.12(c) or 5.15(a).
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan within
the
meaning of Section 4001(a)(3) or Section 3(37) of ERISA (a) to
which any Company
or any ERISA Affiliate is then making or accruing an obligation
to make
contributions; (b) to which any Company or any ERISA Affiliate
has within the
preceding five plan years made contributions; or (c) with
respect to which any
Company could incur liability.
"NET CASH PROCEEDS" shall mean:
(a) with respect to any Asset Sale (other than any issuance or
sale
of Equity Interests), the cash proceeds received by any Company
(including
cash proceeds subsequently received (as and when received by
such Company)
in respect of non-cash consideration initially received) net of
(i)
selling expenses (including reasonable brokers' fees or
commissions,
legal, accounting and other professional and transactional fees,
transfer
and similar taxes and Borrower's good faith estimate of income
or gains
taxes paid or payable in connection with such sale); (ii)
amounts provided
as a reserve, in accordance with GAAP, against (x) any
liabilities under
any indemnification obligations associated with such Asset Sale
or (y) any
other liabilities retained by any Company associated with the
properties
sold in such Asset Sale (provided that, to the extent and at the
time any
such amounts are released from such reserve, such amounts shall
constitute
Net Cash Proceeds); (iii) Borrower's good faith estimate of
payments
required to be made with respect to unassumed liabilities
relating to the
properties sold within 90 days of such Asset Sale (provided
that, to the
extent such cash proceeds are not used to make payments in
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respect of such unassumed liabilities within 90 days of such
Asset Sale,
such cash proceeds shall constitute Net Cash Proceeds); and (iv)
the
principal amount, premium or penalty, if any, interest and other
amounts
on any Indebtedness for borrowed money which is secured by a
Lien on the
properties sold in such Asset Sale (so long as such Lien was
permitted to
encumber such properties under the Loan Documents at the time of
such
sale) and which is repaid with such proceeds (other than any
such
Indebtedness assumed by the purchaser of such properties);
(b) with respect to any Debt Issuance, any Equity Issuance or
any
other issuance or sale of Equity Interests by any Company (other
than an
issuance or sale to Borrower or any Guarantor (other than the
Land
Companies)), the cash proceeds thereof, net of customary
fees,
commissions, underwriting discounts, costs and other expenses
incurred in
connection therewith; and
(c) with respect to any Casualty Event, the cash insurance
proceeds,
condemnation awards and other compensation received in respect
thereof,
net of all taxes thereon and all reasonable costs and expenses
incurred in
connection with the collection of such proceeds, awards or
other
compensation in respect of such Casualty Event.
"NOTES" shall mean the notes evidencing the Term Loans,
Revolving
Loans or Swingline Loans issued pursuant to this Agreement,
substantially in the
form of Exhibit J-1, J-2 or J-3.
"OBLIGATIONS" shall mean (a) obligations of Borrower and the
other
Loan Parties from time to time arising under or in respect of
the due and
punctual payment of (i) the principal of and premium, if any,
and interest
(including interest accruing during the pendency of any
bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether
allowed or
allowable in such proceeding) on the Loans, when and as due,
whether at
maturity, by acceleration, upon one or more dates set for
prepayment or
otherwise, (ii) each payment required to be made by Borrower and
the other Loan
Parties under this Agreement in respect of any Letter of Credit,
when and as
due, including payments in respect of LC Reimbursement
Obligations, interest
thereon and obligations to provide cash collateral and (iii) all
other monetary
obligations, including fees, costs, expenses and indemnities,
whether primary,
secondary, direct, contingent, fixed or otherwise (including
monetary
obligations incurred during the pendency of any bankruptcy,
insolvency,
receivership or other similar proceeding, regardless of whether
allowed or
allowable in such proceeding), of Borrower and the other Loan
Parties under this
Agreement and the other Loan Documents, (b) the due and punctual
performance of
all covenants, agreements, obligations and liabilities of
Borrower and the other
Loan Parties under or pursuant to this Agreement and the other
Loan Documents,
(c) the due and punctual payment and performance of all
obligations of Borrower
and the other Loan Parties under each Hedging Agreement relating
to the Loans
entered into with any counterparty that was a Lender or an
Affiliate of a Lender
at the time such Hedging Agreement was entered into and (d) the
due and punctual
payment and performance of all obligations in respect of
overdrafts and related
liabilities owed to any Lender, any Affiliate of a Lender, the
Administrative
Agent or the Collateral Agent arising from treasury, depositary
and cash
management services or in connection with any automated
clearinghouse transfer
of funds.
"OFAC" shall have the meaning assigned to such term in Section
3.24.
"OFFICERS' CERTIFICATE" shall mean a certificate executed by
the
chairman of the Board of Directors (if an officer), the chief
executive officer
or the president and one of the Financial Officers, each in his
or her official
(and not individual) capacity.
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"ORGANIZATIONAL DOCUMENTS" shall mean, with respect to any
person,
(i) in the case of any corporation, the certificate of
incorporation and by-laws
(or similar documents) of such person, (ii) in the case of any
limited liability
company, the certificate of formation and operating agreement
(or similar
documents) of such person, (iii) in the case of any limited
partnership, the
certificate of formation and limited partnership agreement (or
similar
documents) of such person, (iv) in the case of any general
partnership, the
partnership agreement (or similar document) of such person and
(v) in any other
case, the functional equivalent of the foregoing.
"ORIGINAL CREDIT AGREEMENT" shall have the meaning assigned to
such
term in Section 11.16.
"ORIGINAL SHAREHOLDERS AGREEMENT" shall mean the Amended and
Restated Limited Liability Company Agreement of International
Coal Group, LLC,
dated as of May 13, 2004.
"OTHER LIST" shall have the meaning assigned to such term in
Section
6.21.
"OTHER TAXES" shall mean any and all present or future stamp
or
documentary taxes or any other excise or property taxes, charges
or similar
levies (including interest, fines, penalties and additions to
tax) arising from
any payment made or required to be made under any Loan Document
or from the
execution, delivery or enforcement of, or otherwise with respect
to, any Loan
Document.
"OVERRIDING ROYALTY DEEDS" shall mean the Deeds of
Overriding
Royalty entered into by one or more Companies and the trustee
under the Trust
Agreement as contemplated by the Reclamation Agreement,
including the Deeds of
Overriding Royalty set forth on Schedule 3.09(c).
"OVERRIDING ROYALTY PURCHASE AGREEMENTS" shall mean the
Overriding
Royalty Purchase Agreements entered into by one or more
Companies and Lexington
Coal Company, LLC, including the Overriding Royalty Purchase
Agreements set
forth on Schedule 3.09(c).
"PARTICIPANT" shall have the meaning assigned to such term
in
Section 11.04(e).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred
to and defined in ERISA.
"PERFECTION CERTIFICATE" shall mean a certificate in the form
of
Exhibit K-l or any other form approved by the Collateral Agent,
as the same
shall be supplemented from time to time by a Perfection
Certificate Supplement
or otherwise.
"PERFECTION CERTIFICATE SUPPLEMENT" shall mean a certificate
supplement in the form of Exhibit K-2 or any other form approved
by the
Collateral Agent.
"PERMITTED ACQUISITION" shall mean, with respect to any person,
any
transaction or series of related transactions for (a) the direct
or indirect (x)
acquisition by such specified person of all or substantially all
of the property
of another person, or of any business or division of another
person or (y)
acquisition by such specified person of in excess of 50% of the
Equity Interests
of another person, (b) the causing of another person to become a
Subsidiary of
such specified person, or (c) the merger or consolidation or any
other
combination with another person, if each of the following
conditions is met:
(i) no Default then exists or would result therefrom;
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(ii) after giving effect to such transaction on a Pro Forma
Basis,
Borrower shall be in compliance with all covenants set forth in
Sections
6.10(a), (b) and (c) as of the most recent Test Period ending at
least
four months prior to the date of such transaction (assuming, for
purposes
of Sections 6.10(a), (b) and (c), that such transaction, and all
other
Permitted Acquisitions consummated since the first day of the
most recent
Test Period for each of the financial covenants set forth in
Section 6.10,
had occurred on the first day of the applicable most recent Test
Period);
(iii) no Company shall, in connection with such transaction,
assume
or remain liable with respect to any Indebtedness, except to the
extent
permitted under Section 6.01;
(iv) after giving effect to such transaction, each of the
representations and warranties made by any Loan Party set forth
in Article
III hereof or in any other Loan Document shall be true and
correct in all
material respects (except that any representation or warranty
that is
qualified as to "materiality" or "Material Adverse Effect" shall
be true
and correct in all respects) on and as of the date of such
transaction,
except to the extent such representations and warranties
expressly relate
to an earlier date;
(v) the person or business to be acquired shall be, or shall
be
engaged in, a business of the type that Borrower and its
Subsidiaries are
permitted to be engaged in under Section 6.15 and the property
acquired in
connection with any such transaction shall be made subject to
the Lien of
the Security Documents and shall be free and clear of any other
Liens,
other than Permitted Liens;
(vi) the Board of Directors of the person to be acquired shall
not
have indicated publicly its opposition to the consummation of
such
acquisition (which opposition has not been publicly
withdrawn);
(vii) all transactions in connection therewith shall be
consummated
in accordance with all applicable Requirements of Law of all
applicable
Governmental Authorities in all material respects;
(viii) with respect to any transaction involving Acquisition
Consideration of more than $5.0 million, unless the
Administrative Agent
shall otherwise agree, Borrower shall have provided the
Administrative
Agent and the Lenders with (A) to the extent available,
historical
financial statements for the last three fiscal years of the
person or
business to be acquired ended at least four months prior to the
date of
such transaction (audited if available without undue cost or
delay) and
unaudited financial statements thereof for the most recent
interim period
which are available, (B) reasonably detailed projections for
the
succeeding five years pertaining to the person or business to be
acquired
and updated projections for Borrower after giving effect to
such
transaction, (C) a reasonably detailed description of all
material
information relating thereto and copies of all material
documentation
pertaining to such transaction, and (D) all such other
information and
data relating to such transaction or the person or business to
be acquired
as may be reasonably requested by the Administrative Agent or
the Required
Lenders;
(ix) at least 10 Business Days prior to the proposed date of
consummation of the transaction, Borrower shall have delivered
to the
Agents and the Lenders an Officers' Certificate certifying that
(A) such
transaction complies with this definition (which shall have
attached
thereto reasonably detailed backup data and calculations showing
such
compliance), and (B) such transaction would not reasonably be
expected to
result in a Material Adverse Effect;
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(x) after giving effect to such transaction, the aggregate
Acquisition Consideration for all Permitted Acquisitions in any
fiscal
year (exclusive of any amounts financed by Excluded Issuances)
shall not
exceed $40.0 million; provided that any Equity Interests
constituting all
or a portion of such Acquisition Consideration shall not have a
cash
dividend requirement on or prior to the Final Maturity Date;
and
(xi) immediately before and after giving effect to such
transaction,
the aggregate of all Revolving Commitments minus the aggregate
of all
Revolving Exposures shall be at least $20.0 million.
"PERMITTED COLLATERAL LIENS" shall mean (i) Contested Liens
(as
defined in the Security Agreement) and (ii) the Liens described
in clauses (a),
(b), (c), (d), (e), (f), (g), (h), (i), (k), (m), (n), (o), (q),
(r) and (s) of
Section 6.02.
"PERMITTED HOLDERS" shall mean Sponsor and its Controlled
Investment
Affiliates.
"PERMITTED LIENS" shall have the meaning assigned to such term
in
Section 6.02.
"PERSON" shall mean any natural person, corporation, business
trust,
joint venture, association, company, limited liability company,
partnership or
government, or any agency or political subdivision thereof, in
any case, whether
acting in a personal, fiduciary or other capacity.
"PIKE COUNTY MINE" shall mean the Mine owned and operated by one
or
more of the Companies and located in Knott County, Kentucky.
"PLAN" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section
412 of the Code or Section 302 of ERISA which is maintained or
contributed to by
any Company or its ERISA Affiliate or with respect to which any
Company could
incur liability (including under Section 4069 of ERISA).
"POST CLOSING ACTIONS COMPLETION DATE" shall mean the date on
which
the Companies shall have completed the required actions set
forth in Schedule
5.15 in accordance with such Schedule.
"PREFERRED STOCK" shall mean, with respect to any person, any
and
all preferred or preference Equity Interests (however
designated) of such person
whether now outstanding or issued after the Closing Date.
"PREFERRED STOCK ISSUANCE" shall mean the issuance or sale by
any
Company of any Preferred Stock after the Closing Date (other
than (x) as
permitted by Section 6.01 or (y) any Excluded Issuance).
"PREMISES" shall have the meaning assigned thereto in any
applicable
Mortgage.
"PREP PLANT LEASE" shall mean each Lease entered into by any
Company
in respect of a preparation plant and/or related property or
Real Property on
which a preparation plant is situated. Any Prep Plant Lease
which also provides
a Company with the right to mine Coal reserves shall also be
considered a Mining
Lease.
"PRO FORMA BASIS" shall mean, with respect to any transaction
or
event, on a pro forma basis giving effect to the consummation of
such
transaction or the occurrence of such event, with such pro
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forma basis being either (i) on a basis in accordance with GAAP
and Regulation
S-X or (ii) on a basis otherwise reasonably satisfactory to the
Administrative
Agent.
"PRO RATA PERCENTAGE" of any Revolving Lender at any time shall
mean
the percentage of the total Revolving Commitments of all
Revolving Lenders
represented by such Lender's Revolving Commitment.
"PROPERTY" shall mean any right, title or interest in or to
property
or assets of any kind whatsoever, whether real, personal or
mixed and whether
tangible or intangible and including Equity Interests or other
ownership
interests of any person and whether now in existence or owned or
hereafter
entered into or acquired, including all Real Property.
"PURCHASE MONEY OBLIGATION" shall mean, for any person, the
obligations of such person in respect of Indebtedness (including
Capital Lease
Obligations) incurred for the purpose of financing all or any
part of the
purchase price of any property (including Equity Interests of
any person) or the
cost of installation, construction or improvement of any
property and any
refinancing thereof; provided, however, that (i) such
Indebtedness is incurred
within 180 days after the completion of such acquisition,
installation,
construction or improvement of such property by such person and
(ii) the amount
of such Indebtedness does not exceed 100% of the cost of such
acquisition,
installation, construction or improvement, as the case may
be.
"QUALIFIED CAPITAL STOCK" of any person shall mean any
Equity
Interests of such person that are not Disqualified Capital
Stock.
"REAL PROPERTY" shall mean, collectively, all right, title
and
interest (including any leasehold estate) in and to any and all
parcels of or
interests in real property owned, leased or operated by any
person, whether by
lease, license or other means, together with, in each case, all
easements,
hereditaments, appurtenances, improvements and fixtures relating
thereto.
"RECLAMATION" shall mean the reclamation and restoration of
land,
water and Mines, and any other Environment affected by such
Mines, as required
pursuant to Mining Laws.
"RECLAMATION AGREEMENT" shall mean the Permitting and
Reclamation
Plan Agreement, dated as of August 31, 2004, among Holdings,
Oldcoal, LLC, a
Delaware limited liability company, Travelers Casualty and
Surety Company of
America, American International Specialty Lines Insurance
Company, the Insurance
Company of the State of Pennsylvania, the United States
Department of Interior,
Office of Surface Mining, Reclamation and Enforcement, the West
Virginia
Department of Environmental Protection, the Kentucky
Environmental and Public
Protection Cabinet, Department of Natural Resources, the Indiana
Department of
Natural Resources, and the Illinois Department of Natural
Resources.
"RECLAMATION DOCUMENTS" shall mean, collectively, the
Reclamation
Agreement, the Bonding Agreements, the Trust Agreement, the
Overriding Royalty
Deeds and the Overriding Royalty Purchase Agreements.
"REGISTER" shall have the meaning assigned to such term in
Section
11.04(c).
"REGULATION D" shall mean Regulation D of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
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<PAGE>
"REGULATION S-X" shall mean Regulation S-X promulgated under
the
Securities Act.
"REGULATION T" shall mean Regulation T of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"REGULATION U" shall mean Regulation U of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"RELEASE" shall mean any spilling, leaking, pumping,
pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping,
disposing, depositing, dispersing, or migrating of any Hazardous
Material in,
into, onto or through the Environment.
"REQUIRED LENDERS" shall mean, at any time, Lenders having
Loans, LC
Exposure and unused Revolving Commitments representing more than
50% of the sum
of all Loans outstanding, LC Exposure and unused Revolving
Commitments at such
time.
"REQUIREMENTS OF LAW" shall mean, collectively, any and all
requirements of any Governmental Authority, including any and
all laws,
ordinances, rules, regulations, decrees, orders, judgments,
consent orders,
consent decrees, common law or any or similar statutes, binding
requirements or
case law.
"RESPONSE" shall mean (a) "response" as such term is defined
in
CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any
Governmental Authority or voluntarily undertaken to (i) clean
up, remove, treat,
abate or in any other way address any Hazardous Material in the
environment;
(ii) prevent the Release or threat of Release, or minimize the
further Release,
of any Hazardous Material; or (iii) perform studies and
investigations in
connection with, or as a precondition to, clause (i) or (ii)
above.
"RESPONSIBLE OFFICER" of any person shall mean any executive
officer
or Financial Officer of such person and any other officer or
similar official
thereof with responsibility for the administration of the
obligations of such
person in respect of this Agreement.
"RESTATEMENT DATE" shall mean the date on which this Agreement
is
executed and delivered by all persons intended to be parties
hereto and the
conditions set forth in Section 4.01A are satisfied.
"REVOLVING AVAILABILITY PERIOD" shall mean the period from
and
including the Closing Date to but excluding the earlier of (i)
the Business Day
preceding the Revolving Maturity Date and (ii) the date of
termination of the
Revolving Commitments.
"REVOLVING BORROWING" shall mean a Borrowing comprised of
Revolving
Loans.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the
commitment, if any, of such Lender to make Revolving Loans
hereunder up to the
amount set forth on Schedule I to the Lender Addendum executed
and delivered by
such Lender or by an amendment to this Agreement pursuant to
Section 11.02(e),
or in the Assignment and Acceptance pursuant to which such
Lender assumed its
Revolving Commitment, as applicable, as the same may be (a)
reduced from time to
time
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<PAGE>
pursuant to Section 2.07 and (b) reduced or increased from time
to time pursuant
to assignments by or to such Lender pursuant to Section 11.04.
The aggregate
amount of the Lenders' Revolving Commitments on the Closing Date
is $110.0
million.
"REVOLVING EXPOSURE" shall mean, with respect to any Lender at
any
time, without duplication, the aggregate principal amount at
such time of all
outstanding Revolving Loans of such Lender, plus the aggregate
amount at such
time of such Lender's LC Exposure, plus the aggregate amount at
such time of
such Lender's Swingline Exposure.
"REVOLVING LENDER" shall mean a Lender with a Revolving
Commitment.
"REVOLVING LOAN" shall mean a Loan made by the Lenders to
Borrower
pursuant to Section 2.01(b) or by an amendment to this Agreement
pursuant to
Section 11.02(e). Each Revolving Loan shall either be an ABR
Revolving Loan or a
Eurodollar Revolving Loan.
"REVOLVING MATURITY DATE" shall mean the date which is five
years
after the Closing Date or, if such date is not a Business Day,
the first
Business Day thereafter.
"SALE AND LEASEBACK TRANSACTION" shall have the meaning assigned
to
such term in Section 6.03.
"SALE ORDER" shall mean the order, pursuant to Sections 105,
362,
363 and 365 of the Bankruptcy Code, approving the sale of the
Acquired Business
pursuant to the Acquisition Agreement, entered by the Bankruptcy
Court on
September 16, 2004.
"SARBANES-OXLEY ACT" shall mean the United States Sarbanes-Oxley
Act
of 2002 and all rules and regulations promulgated
thereunder.
"SDN LIST" shall have the meaning assigned to such term in
Section
6.21.
"SECURED LEVERAGE RATIO" shall mean, at any date of
determination,
the ratio of Consolidated Secured Indebtedness on such date to
Consolidated
EBITDA for the Test Period then most recently ended.
"SECURED PARTIES" shall mean, collectively, the
Administrative
Agent, the Collateral Agent, each other Agent, the Lenders, the
Issuing Bank and
each party to a Hedging Agreement relating to the Loans if at
the date of
entering into such Hedging Agreement such person was a Lender or
an Affiliate of
a Lender and such person executes and delivers to the
Administrative Agent a
letter agreement in form and substance acceptable to the
Administrative Agent
pursuant to which such person (i) appoints the Collateral Agent
as its agent
under the applicable Loan Documents and (ii) agrees to be bound
by the
provisions of Sections 10.03 and 10.09.
"SECURITIES ACT" shall mean the Securities Act of 1933.
"SECURITIES COLLATERAL" shall have the meaning assigned to such
term
in the Security Agreement.
"SECURITY AGREEMENT" shall mean a Security Agreement
substantially
in the form of Exhibit L among the Loan Parties and Collateral
Agent for the
benefit of the Secured Parties.
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<PAGE>
"SECURITY AGREEMENT COLLATERAL" shall mean all property pledged
or
granted as collateral pursuant to the Security Agreement
delivered on the
Closing Date or thereafter pursuant to Section 5.12.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the
Mortgages and each other security document or pledge agreement
delivered in
accordance with applicable local or foreign law to grant a
valid, perfected
security interest in any property as collateral for the
Obligations, and all UCC
or other financing statements or instruments of perfection
required by this
Agreement, the Security Agreement, any Mortgage or any other
such security
document or pledge agreement to be filed with respect to the
security interests
in property and fixtures created pursuant to the Security
Agreement, or any
Mortgage and any other document or instrument utilized to pledge
as collateral
for the Obligations any property.
"SELLERS" shall have the meaning assigned to such term in the
first
recital hereto.
"SIGNIFICANT MINING PROPERTIES" shall mean, collectively,
the
Evergreen Mine, the Leslie Mine, the Pike Mine, the Sunny Ridge
Mine and the
Turris Mine.
"SPONSOR" shall mean WL Ross & Co. LLC.
"SPONSOR SYNDICATION LETTER" shall mean the Sponsor
Syndication
Letter, dated September 24, 2004, among Sponsor, UBS Loan
Finance LLC and UBS
Securities LLC.
"STANDBY LETTER OF CREDIT" shall mean any standby letter of
credit
or similar instrument issued for the purpose of supporting (a)
workers'
compensation liabilities of Borrower or any of its Subsidiaries,
(b) the
obligations of third-party insurers of Borrower or any of its
Subsidiaries
arising by virtue of the laws of any jurisdiction requiring
third-party insurers
to obtain such letters of credit, (c) performance, payment,
deposit or surety
obligations of Borrower or any of its Subsidiaries if required
by any
Requirement of Law or in accordance with custom and practice in
the industry or
(d) other general corporate purposes of Borrower and its
Subsidiaries.
"STATUTORY RESERVES" shall mean for any Interest Period for
any
Eurodollar Borrowing, the average maximum rate at which reserves
(including any
marginal, supplemental or emergency reserves) are required to be
maintained
during such Interest Period under Regulation D by member banks
of the United
States Federal Reserve System in New York City with deposits
exceeding one
billion dollars against "Eurodollar liabilities" (as such term
is used in
Regulation D). Eurodollar Borrowings shall be deemed to
constitute Eurodollar
liabilities and to be subject to such reserve requirements
without benefit of or
credit for proration, exceptions or offsets which may be
available from time to
time to any Lender under Regulation D.
"SUBSIDIARY" shall mean, with respect to any person (the
"PARENT")
at any date, (i) any person the accounts of which would be
consolidated with
those of the parent in the parent's consolidated financial
statements if such
financial statements were prepared in accordance with GAAP as of
such date, (ii)
any other corporation, limited liability company, association or
other business
entity of which securities or other ownership interests
representing more than
50% of the voting power of all Equity Interests entitled
(without regard to the
occurrence of any contingency) to vote in the election of the
Board of Directors
thereof are, as of such date, owned, controlled or held by the
parent and/or one
or more other subsidiaries of the parent, (iii) any partnership
(a) the sole
general partner or the managing general partner of which is the
parent and/or
one or more subsidiaries of the parent or (b) the only
general
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<PAGE>
partners of which are the parent and/or one or more subsidiaries
of the parent
and (iv) any other person that is otherwise Controlled by the
parent and/or one
or more subsidiaries of the parent. Unless the context requires
otherwise,
"Subsidiary" refers to a Subsidiary of Borrower.
"SUBSIDIARY CHANGE OF CONTROL AGREEMENT" shall mean any
lease,
contract or other agreement (in each case, other than the
Travelers Indemnity
Agreement, the Travelers Bonding Agreement and any renewal,
amendment or
replacement of the foregoing on substantially the same terms)
that prohibits,
restricts or otherwise impairs the granting or enforcement of a
Lien on the
Equity Interests in any Subsidiary of Borrower to the Collateral
Agent for the
benefit of the Secured Parties or under which the granting or
enforcement of
such Lien would result in a default, termination, right to
terminate or other
remedy in favor of the counterparty thereto.
"SUBSIDIARY GUARANTOR" shall mean each Subsidiary listed on
Schedule
1.01(d), and each other Subsidiary that is or becomes a party to
this Agreement
pursuant to Section 5.12.
"SUCCESSFUL SYNDICATION" shall have the meaning assigned to
such
term in the Fee Letter.
"SUNNY RIDGE MINE" shall mean the Mine owned and operated by one
or
more of the Companies and located in Pike County, Kentucky.
"SUPERMAJORITY LENDERS" shall mean at any time, Lenders
having
Loans, LC Exposure and unused Revolving Commitments representing
at least 66
2/3% of the sum of all Loans outstanding, LC Exposure and unused
Revolving
Commitments at such time.
"SURVEY" shall mean a survey of any Mortgaged Property (and
all
improvements thereon) that is (a) (i) prepared by a surveyor or
engineer
licensed to perform surveys in the state where such Mortgaged
Property is
located, (ii) dated (or redated) not earlier than six months
prior to the date
of delivery thereof unless there shall have occurred within six
months prior to
such date of delivery any exterior construction on the site of
such Mortgaged
Property, in which event such survey shall be dated (or redated)
after the
completion of such construction or if such construction shall
not have been
completed as of such date of delivery, not earlier than 20 days
prior to such
date of delivery, (iii) certified by the surveyor (in a manner
reasonably
acceptable to the Administrative Agent) to the Administrative
Agent, the
Collateral Agent and the Title Company, (iv) complying in all
respects with the
minimum detail requirements of the American Land Title
Association as such
requirements are in effect on the date of preparation of such
survey and (v)
sufficient for the Title Company to remove all standard survey
exceptions from
the title insurance policy (or commitment) relating to such
Mortgaged Property
and issue the endorsements of the type reasonably requested by
the Collateral
Agent or (b) otherwise acceptable to the Collateral Agent in the
exercise of its
reasonable discretion.
"SWINGLINE COMMITMENT" shall mean the commitment of the
Swingline
Lender to make loans pursuant to Section 2.17, as the same may
be reduced from
time to time pursuant to Section 2.07. The amount of the
Swingline Commitment
shall initially be $10.0 million, but in no event exceed the
Revolving
Commitment.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate
principal
amount at such time of all outstanding Swingline Loans. The
Swingline Exposure
of any Revolving Lender at any time shall equal its Pro Rata
Percentage of the
aggregate Swingline Exposure at such time.
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<PAGE>
"SWINGLINE LENDER" shall have the meaning assigned to such term
in
the preamble hereto.
"SWINGLINE LOAN" shall mean any loan made by the Swingline
Lender
pursuant to Section 2.17.
"SYNDICATION AGENT" shall have the meaning assigned to such term
in
the preamble hereto.
"TAX RETURNS" shall mean all returns, statements, filings,
attachments and other documents or certifications required to be
filed in
respect of Taxes.
"TAXES" shall mean (i) any and all present or future taxes,
duties,
levies, imposts, assessments, deductions, withholdings or other
similar charges
imposed by any Governmental Authority, whether computed on a
separate,
consolidated, unitary, combined or other basis and any and all
liabilities
(including interest, fines, penalties or additions to tax, in
each case solely
in respect of any payment of taxes) with respect to the
foregoing, and (ii) any
transferee, successor, joint and several, contractual or other
liability
(including liability pursuant to Treasury Regulation Section
1.1502-6 (or any
similar provision of state, local or non-U.S. law)) in respect
of any item
described in clause (i).
"TERM BORROWING" shall mean a Borrowing comprised of Term
Loans.
"TERM LOAN COMMITMENT" shall mean, with respect to each Lender,
the
commitment, if any, of such Lender to make a Term Loan hereunder
on the Closing
Date or the Restatement Date in the amount set forth on Schedule
I to the Lender
Addendum executed and delivered by such Lender. The initial
aggregate amount of
the Lenders' Term Loan Commitments is $175.0 million.
"TERM LOAN LENDER" shall mean a Lender with a Term Loan
Commitment
or an outstanding Term Loan.
"TERM LOAN MATURITY DATE" shall mean the date which is six
years
after the Closing Date or, if such date is not a Business Day,
the first
Business Day thereafter.
"TERM LOAN REPAYMENT DATE" shall have the meaning assigned to
such
term in Section 2.09(a).
"TERM LOANS" shall mean the term loans made by the Lenders
to
Borrower pursuant to Section 2.01(a) or by an amendment to this
Agreement
pursuant to Section 11.02(e). Each Term Loan shall be either an
ABR Term Loan or
a Eurodollar Term Loan.
"TEST PERIOD" shall mean, at any time, the four consecutive
fiscal
quarters of Borrower then last ended (in each case taken as one
accounting
period) for which financial statements have been or are required
to have been
delivered pursuant to Section 5.01(a) or (b).
"TITLE COMPANY" shall mean any title insurance company as shall
be
retained by Borrower and reasonably acceptable to the
Administrative Agent.
"TITLE POLICY" shall mean a title insurance policy insuring
any
Mortgaged Property.
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<PAGE>
"TRANSACTION DOCUMENTS" shall mean the Acquisition Documents,
the
Reclamation Documents and the Loan Documents.
"TRANSACTIONS" shall mean, collectively, the transactions to
occur
on or prior to the Restatement Date pursuant to the Transaction
Documents,
including (a) the consummation of the Acquisition; (b) the
execution, delivery
and performance of the Loan Documents, the initial Credit
Extensions hereunder
and the Credit Extensions made on the Restatement Date; (c) the
Equity
Financing; and (d) the payment of all fees and expenses to be
paid on or prior
to the Restatement Date and owing in connection with the
foregoing.
"TRANSFERRED GUARANTOR" shall have the meaning assigned to such
term
in Section 7.09.
"TRAVELERS" shall mean Travelers Casualty and Surety Company
of
America, together with its Affiliates.
"TRAVELERS BONDING AGREEMENT" shall mean the Bonding
Agreement,
dated as of September 30, 2004, among Travelers, Holdings and
the Companies
listed on Schedule A thereto.
"TRAVELERS COLLATERAL ACCOUNT" shall mean the "Collateral
Account",
as defined in the Travelers Bonding Agreement.
"TRAVELERS INDEMNITY AGREEMENT" shall mean the General Contract
of
Indemnity, dated as of September 30, 2004, by Holdings and the
Companies listed
on Exhibit A thereto in favor of Travelers.
"TRUST AGREEMENT" shall mean the Trust Agreement, dated as
of
September 30, 2004, among Travelers, AIG and the trustee
thereunder.
"TURRIS MINE" shall mean the Mine owned and operated by one or
more
of the Companies and located in Sangamon and Logan Counties in
Illinois.
"TYPE," when used in reference to any Loan or Borrowing, refers
to
whether the rate of interest on such Loan, or on the Loans
comprising such
Borrowing, is determined by reference to the Adjusted LIBOR Rate
or the
Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from
time
to time in any applicable state or jurisdiction.
"UNDERWRITING WARRANTS" shall mean the following number of
warrants
issued to the following holders under the Original Shareholders
Agreement:
<TABLE>
<CAPTION>
HOLDER WARRANTS
---------------------------------- ---------
<S> <C>
WLR Coal Holdings, LLC 1,500,000
Contrarian Funds, LLC 1,804,200
Greenlight Capital Qualified, L.P. 558,600
Stark Event Trading, Ltd. 1,797,000
The Varde Fund V, L.P. 1,840,200
</TABLE>
"UNITED STATES" shall mean the United States of America.
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<PAGE>
"VOTING STOCK" shall mean, with respect to any person, any class
or
classes of Equity Interests pursuant to which the holders
thereof have the
general voting power under ordinary circumstances to elect at
least a majority
of the Board of Directors of such person.
"WHOLLY OWNED SUBSIDIARY" shall mean, as to any person, (a)
any
corporation 100% of whose capital stock (other than directors'
qualifying
shares) is at the time owned by such person and/or one or more
Wholly Owned
Subsidiaries of such person and (b) any partnership,
association, joint venture,
limited liability company or other entity in which such person
and/or one or
more Wholly Owned Subsidiaries of such person have a 100% equity
interest at
such time.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer
Plan
as a result of a complete or partial withdrawal from such
Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
SECTION 1.02 CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of
this Agreement, Loans may be classified and referred to by Class
(e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by
Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and
referred to by Class (e.g., a "Revolving Borrowing," "Borrowing
of Term Loans")
or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a
"Eurodollar Revolving Borrowing").
SECTION 1.03 TERMS GENERALLY. The definitions of terms herein
shall
apply equally to the singular and plural forms of the terms
defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine,
feminine and neuter forms. The words "include," "includes" and
"including" shall
be deemed to be followed by the phrase "without limitation". The
word "will"
shall be construed to have the same meaning and effect as the
word "shall."
Unless the context requires otherwise (a) any definition of or
reference to any
Loan Document or other agreement, instrument or other document
herein shall be
construed as referring to such agreement, instrument or other
document as from
time to time amended, supplemented or otherwise modified
(subject to any
restrictions on such amendments, supplements or modifications
set forth herein),
(b) any reference herein to any person shall be construed to
include such
person's successors and assigns, (c) the words "herein,"
"hereof" and
"hereunder," and words of similar import, shall be construed to
refer to this
Agreement in its entirety and not to any particular provision
hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules
shall be
construed to refer to Articles and Sections of, and Exhibits and
Schedules to,
this Agreement, unless otherwise indicated, and (e) all
references to "date
hereof" shall mean the date of this Agreement.
SECTION 1.04 ACCOUNTING TERMS; GAAP. Except as otherwise
expressly
provided herein, all financial statements to be delivered
pursuant to this
Agreement shall be prepared in accordance with GAAP as in effect
from time to
time and all terms of an accounting or financial nature shall be
construed and
interpreted in accordance with GAAP, as in effect on the date
hereof, provided
that if Borrower notifies the Administrative Agent and the
Lenders that Borrower
wishes to amend any covenant in Article VI to eliminate the
effect of any change
in GAAP that occurs after the Closing Date on the operation of
such covenant (or
if the Administrative Agent notifies Borrower that the
Administrative Agent or
the Required Lenders wish to amend Article VI for such purpose),
then Borrower's
compliance with such covenant shall be determined on the basis
of GAAP in effect
immediately before the relevant change in GAAP became effective,
until either
such notice is withdrawn or such covenant is amended in a manner
satisfactory to
Borrower, the Administrative Agent and the Required Lenders,
Borrower, the
Administrative Agent and the Lenders agreeing to enter into
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<PAGE>
negotiations to amend any such covenant promptly upon receipt
from any party
entitled to send such notice.
SECTION 1.05 RESOLUTION OF DRAFTING AMBIGUITIES. Each Loan
Party
acknowledges and agrees that it was represented by counsel in
connection with
the execution and delivery of the Loan Documents to which it is
a party, that it
and its counsel reviewed and participated in the preparation and
negotiation
hereof and thereof and that any rule of construction to the
effect that
ambiguities are to be resolved against the drafting party shall
not be employed
in the interpretation hereof or thereof.
ARTICLE II
THE CREDITS
SECTION 2.01 COMMITMENTS. Subject to the terms and conditions
and
relying upon the representations and warranties herein set
forth:
(a) each Term Loan Lender agrees, severally and not jointly, to
make
Term Loans to Borrower on the Closing Date and the Restatement
Date in the
principal amount not to exceed its Term Loan Commitment; and
(b) each Revolving Lender agrees, severally and not jointly, to
make
Revolving Loans to Borrower, at any time and from time to time
on and
after the Closing Date until the earlier of the Revolving
Maturity Date
and the termination of the Revolving Commitment of such Lender
in
accordance with the terms hereof, in an aggregate principal
amount at any
time outstanding that will not result in such Lender's Revolving
Exposure
exceeding such Lender's Revolving Commitment.
Amounts paid or prepaid in respect of Term Loans may not be
reborrowed. Within the limits set forth in clause (b) above and
subject to the
terms, conditions and limitations set forth herein, Borrower may
borrow, pay or
prepay and reborrow Revolving Loans.
SECTION 2.02 LOANS. (a) Each Loan (other than Swingline Loans)
shall
be made as part of a Borrowing consisting of Loans made by the
Lenders ratably
in accordance with their applicable Commitments; provided that
the failure of
any Lender to make any Loan shall not in itself relieve any
other Lender of its
obligation to lend hereunder (it being understood, however, that
no Lender shall
be responsible for the failure of any other Lender to make any
Loan required to
be made by such other Lender). Except for Loans deemed made
pursuant to Section
2.18(e)(ii), Loans comprising any Borrowing shall be in an
aggregate principal
amount that is (i) an integral multiple of $500,000 and not less
than $2.0
million or (ii) equal to the remaining available balance of the
applicable
Commitments.
(b) Subject to Section 2.11, each Borrowing shall be
comprised
entirely of ABR Loans or Eurodollar Loans as Borrower may
request pursuant to
Section 2.03. Each Lender may at its option make any Eurodollar
Loan by causing
any domestic or foreign branch or Affiliate of such Lender to
make such Loan;
provided that any exercise of such option shall not affect the
obligation of
Borrower to repay such Loan in accordance with the terms of this
Agreement and
shall not subject Borrower to any increased costs pursuant to
Section 2.12 that
would otherwise not be applicable to such Lender or, under
Section 2.11, would
result in the inability of Borrower to borrow Eurodollar Loans
if Borrower would
be able to borrow Eurodollar Loans had such Lender funded such
Eurodollar Loan
directly. Borrowings of
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<PAGE>
more than one Type may be outstanding at the same time; provided
that Borrower
shall not be entitled to request any Borrowing that, if made,
would result in
more than five Eurodollar Borrowings outstanding hereunder at
any one time. For
purposes of the foregoing, Borrowings having different Interest
Periods,
regardless of whether they commence on the same date, shall be
considered
separate Borrowings.
(c) Except with respect to Loans made pursuant to Section
2.18(e)(ii), each Lender shall make each Loan to be made by it
hereunder on the
proposed date thereof by wire transfer of immediately available
funds to such
account in New York City as the Administrative Agent may
designate not later
than 11:00 a.m., New York City time, and the Administrative
Agent shall promptly
credit the amounts so received to an account as directed by
Borrower in the
applicable Borrowing Request or, if a Borrowing shall not occur
on such date
because any condition precedent herein specified shall not have
been met, return
the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice
from
a Lender prior to the date (or, with respect to Borrowings of
ABR Loans, the
time) of any Borrowing that such Lender will not make available
to the
Administrative Agent such Lender's portion of such Borrowing,
the Administrative
Agent may assume that such Lender has made such portion
available to the
Administrative Agent on the date of such Borrowing in accordance
with paragraph
(c) above, and the Administrative Agent may, in reliance upon
such assumption,
make available to Borrower on such date a corresponding amount.
If the
Administrative Agent shall have so made funds available, then,
to the extent
that such Lender shall not have made such portion available to
the
Administrative Agent, each of such Lender and Borrower severally
agrees to repay
to the Administrative Agent forthwith on demand such
corresponding amount
together with interest thereon, for each day from the date such
amount is made
available to Borrower until the date such amount is repaid to
the Administrative
Agent at (i) in the case of Borrower, the interest rate
applicable at the time
to the Loans comprising such Borrowing and (ii) in the case of
such Lender, the
greater of the Federal Funds Effective Rate and a rate
determined by the
Administrative Agent in accordance with banking industry rules
on interbank
compensation. If such Lender shall repay to the Administrative
Agent such
corresponding amount, such amount shall constitute such Lender's
Loan as part of
such Borrowing for purposes of this Agreement, and Borrower's
obligation to
repay the Administrative Agent such corresponding amount
pursuant to this
Section 2.02(d) shall cease.
(e) Notwithstanding any other provision of this Agreement,
Borrower
shall not be entitled to request, or to elect to convert or
continue, any
Borrowing if the Interest Period requested with respect thereto
would end after
the Revolving Maturity Date or Term Loan Maturity Date, as
applicable.
SECTION 2.03 BORROWING PROCEDURE. To request a Revolving
Borrowing
or Term Borrowing, Borrower shall deliver, by hand delivery or
telecopy, a duly
completed and executed Borrowing Request to the Administrative
Agent (i) in the
case of a Eurodollar Borrowing, not later than 1:00 p.m., New
York City time,
three Business Days before the date of the proposed Borrowing or
(ii) in the
case of an ABR Borrowing, not later than 9:00 a.m., New York
City time, on the
date of the proposed Borrowing. Each Borrowing Request shall be
irrevocable and
shall specify the following information in compliance with
Section 2.02:
(a) whether the requested Borrowing is to be a Borrowing of
Revolving Loans or Term Loans;
(b) the aggregate amount of such Borrowing;
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(c) the date of such Borrowing, which shall be a Business
Day;
(d) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar
Borrowing;
(e) in the case of a Eurodollar Borrowing, the initial
Interest
Period to be applicable thereto, which shall be a period
contemplated by
the definition of the term "Interest Period"; provided that
until the date
on which the Syndication Agent shall have notified Borrower that
a
Successful Syndication has been achieved, the Interest Period
shall be
seven days;
(f) the location and number of Borrower's account to which funds
are
to be disbursed; and
(g) that the conditions set forth in Sections 4.02(b) through
(d)
are satisfied as of the date of the notice.
If no election as to the Type of Borrowing is specified, then
the
requested Borrowing shall be an ABR Borrowing. If no Interest
Period is
specified with respect to any requested Eurodollar Borrowing,
then Borrower
shall be deemed to have selected an Interest Period of one
month's duration
(subject to the proviso in clause (e) above). Promptly following
receipt of a
Borrowing Request in accordance with this Section, the
Administrative Agent
shall advise each Lender of the details thereof and of the
amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04 EVIDENCE OF DEBT; REPAYMENT OF LOANS. (a)
Borrower
hereby unconditionally promises to pay (i) to the Administrative
Agent for the
account of each Term Loan Lender, the principal amount of each
Term Loan of such
Term Loan Lender as provided in Section 2.09, (ii) to the
Administrative Agent
for the account of each Revolving Lender, the then unpaid
principal amount of
each Revolving Loan of such Revolving Lender on the Revolving
Maturity Date and
(iii) to the Swingline Lender, the then unpaid principal amount
of each
Swingline Loan on the earlier of the Revolving Maturity Date and
the first date
after such Swingline Loan is made that is the 15th or last day
of a calendar
month and is at least one Business Day after such Swingline Loan
is made;
provided that on each date that a Revolving Borrowing is made,
Borrower shall
repay all Swingline Loans that were outstanding on the date such
Borrowing was
requested.
(b) Each Lender shall maintain in accordance with its usual
practice
an account or accounts evidencing the indebtedness of Borrower
to such Lender
resulting from each Loan made by such Lender from time to time,
including the
amounts of principal and interest payable and paid to such
Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it
will record (i) the amount of each Loan made hereunder, the Type
and Class
thereof and the Interest Period applicable thereto; (ii) the
amount of any
principal or interest due and payable or to become due and
payable from Borrower
to each Lender hereunder; and (iii) the amount of any sum
received by the
Administrative Agent hereunder for the account of the Lenders
and each Lender's
share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence,
absent manifest
error, of the existence and amounts of the obligations therein
recorded;
provided that the failure of any Lender or the Administrative
Agent to maintain
such accounts or any error therein shall not in any manner
affect the
obligations of Borrower to repay the Loans in accordance with
their terms.
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(e) Any Lender by written notice to Borrower (with a copy to
the
Administrative Agent) may request that Loans of any Class made
by it be
evidenced by a promissory note. In such event, Borrower shall
prepare, execute
and deliver to such Lender a promissory note payable to the
order of such Lender
(or, if requested by such Lender, to such Lender and its
registered assigns) in
the form of Exhibit J-1, J-2 or J-3, as the case may be.
Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at
all times
(including after assignment pursuant to Section 11.04) be
represented by one or
more promissory notes in such form payable to the order of the
payee named
therein (or, if such promissory note is a registered note, to
such payee and its
registered assigns). Upon the request of Borrower after payment
in full of all
the Obligations, each Lender that has received a promissory note
pursuant to
this Section 2.04(e) shall deliver such promissory note to
Borrower.
SECTION 2.05 FEES.
(a) Commitment Fee. Borrower agrees to pay to the
Administrative
Agent for the account of each Revolving Lender a commitment fee
(a "COMMITMENT
FEE") equal to the Applicable Fee per annum on the average daily
unused amount
of the Revolving Commitment of such Lender during the period
from and including
the date hereof to but excluding the date on which such
Revolving Commitment
terminates. Accrued Commitment Fees shall be payable in arrears
(A) on January
10, April 10, July 10 and October 10 of each year, commencing on
the first such
date to occur after the date hereof, and (B) on the date on
which such Revolving
Commitment terminates. Commitment Fees shall be computed on the
basis of a year
of 360 days and shall be payable for the actual number of days
elapsed
(including the first day but excluding the last day). For
purposes of computing
Commitment Fees, a Revolving Commitment of a Lender shall be
deemed to be used
to the extent of the outstanding Revolving Loans and LC Exposure
of such Lender
(and the Swingline Exposure of such Lender shall be disregarded
for such
purpose).
(b) Administrative Agent Fees. Borrower agrees to pay to the
Administrative Agent, for its own account, the administrative
fees set forth in
the Fee Letter and such other fees payable in the amounts and at
the times
separately as may be agreed upon in writing between Borrower and
the
Administrative Agent (the "ADMINISTRATIVE AGENT FEES").
(c) LC Participation and Fronting Fees. Borrower agrees to pay
(i)
to the Administrative Agent for the account of each Revolving
Lender a
participation fee ("LC PARTICIPATION FEE") with respect to its
participations in
Letters of Credit, which shall accrue at a rate per annum equal
to the
Applicable Margin from time to time used to determine the
interest rate on
Eurodollar Revolving Loans pursuant to Section 2.06 on the
average daily amount
of such Lender's LC Exposure (excluding any portion thereof
attributable to LC
Reimbursement Obligations) during the period from and including
the Closing Date
to but excluding the later of the date on which such Lender's
Revolving
Commitment terminates and the date on which such Lender ceases
to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee ("LC
FRONTING FEE"), which
shall accrue at the rate of 0.20% per annum on the average daily
amount of the
LC Exposure (excluding any portion thereof attributable to LC
Reimbursement
Obligations) during the period from and including the Closing
Date to but
excluding the later of the date of termination of the Revolving
Commitments and
the date on which there ceases to be any LC Exposure, as well as
the Issuing
Bank's customary fees with respect to the issuance, amendment,
renewal or
extension of any Letter of Credit or processing of drawings
thereunder. Accrued
LC Participation Fees and LC Fronting Fees shall be payable in
arrears (i) on
January 10, April 10, July 10 and October 10 of each year,
commencing on the
first such date to occur after the Closing Date, and (ii) on the
date on which
the Revolving Commitments terminate. Any such fees accruing
after the date on
which the Revolving Commitments terminate shall be payable on
demand. Any other
fees payable to the
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Issuing Bank pursuant to this paragraph shall be payable within
10 days after
written demand therefor. All LC Participation Fees and LC
Fronting Fees shall be
computed on the basis of a year of 360 days and shall be payable
for the actual
number of days elapsed (including the first day but excluding
the last day).
(d) All Fees shall be paid in U.S. dollars on the dates due,
in
immediately available funds, to the Administrative Agent for
distribution, if
and as appropriate, among the Lenders, except that Borrower
shall pay the LC
Fronting Fees directly to the Issuing Bank. Once paid, none of
the Fees shall be
refundable under any circumstances.
SECTION 2.06 INTEREST ON LOANS. (a) Subject to the provisions
of
Section 2.06(c), the Loans comprising each ABR Borrowing,
including each
Swingline Loan, shall bear interest at a rate per annum equal to
the Alternate
Base Rate plus the Applicable Margin in effect from time to
time.
(b) Subject to the provisions of Section 2.06(c), the Loans
comprising each Eurodollar Borrowing shall bear interest at a
rate per annum
equal to the Adjusted LIBOR Rate for the Interest Period in
effect for such
Borrowing plus the Applicable Margin in effect from time to
time.
(c) Notwithstanding the foregoing, upon the occurrence and
during
the continuance of an Event of Default, if elected by the
Required Lenders, all
Loans outstanding, all unpaid LC Disbursements and all other
Obligations that
are then due and unpaid shall, to the extent permitted by
applicable law, bear
interest, after as well as before judgment and including
post-petition interest
in any proceeding under the Bankruptcy Code or other applicable
bankruptcy laws,
payable on demand at a per annum rate equal to 2% plus the
higher of (i) the
Alternate Base Rate plus the Applicable Margin and (ii) the rate
(including
Applicable Margin, if any) otherwise applicable to such
Obligations as provided
in the preceding paragraphs of this Section 2.06 or in Section
2.05, as
applicable.
(d) Accrued interest on each Loan shall be payable in arrears
on
each Interest Payment Date for such Loan; provided that (i)
interest accrued
pursuant to Section 2.06(c) shall be payable on demand, (ii) in
the event of any
repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving
Loan or a Swingline Loan), accrued interest on the principal
amount repaid or
prepaid shall be payable on the date of such repayment or
prepayment and (iii)
in the event of any conversion of any Eurodollar Loan prior to
the end of the
current Interest Period therefor, accrued interest on such Loan
shall be payable
on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year
of 360 days, except that interest computed by reference to the
Alternate Base
Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap
year), and in each case shall be payable for the actual number
of days elapsed
(including the first day but excluding the last day). The
applicable Alternate
Base Rate or Adjusted LIBOR Rate shall be determined by the
Administrative Agent
in accordance with the provisions of this Agreement and such
determination shall
be conclusive absent manifest error.
SECTION 2.07 TERMINATION AND REDUCTION OF COMMITMENTS. (a) The
Term
Loan Commitments shall automatically terminate at 5:00 p.m., New
York City time,
on the Restatement Date. The Revolving Commitments, the
Swingline Commitment and
the LC Commitment shall automatically terminate on the Revolving
Maturity Date.
(b) At its option, Borrower may at any time terminate, or from
time
to time permanently reduce, the Commitments of any Class;
provided that (i) each
reduction of the Commitments of any Class shall be in an amount
that is an
integral multiple of $500,000 and not less than $2.0 million
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and (ii) the Revolving Commitments shall not be terminated or
reduced to the
extent that, after giving effect to any concurrent prepayment of
the Revolving
Loans in accordance with Section 2.10, the aggregate amount of
Revolving
Exposures would exceed the aggregate amount of Revolving
Commitments.
(c) Borrower shall notify the Administrative Agent in writing of
any
election to terminate or reduce the Commitments under Section
2.07(b) at least
three Business Days prior to the effective date of such
termination or
reduction, specifying such election and the effective date
thereof. Promptly
following receipt of any notice, the Administrative Agent shall
advise the
Lenders of the contents thereof. Each notice delivered by
Borrower pursuant to
this Section shall be irrevocable; provided that a notice of
termination of the
Commitments delivered by Borrower may state that such notice is
conditioned upon
the effectiveness of other credit facilities, in which case such
notice may be
revoked by Borrower (by notice to the Administrative Agent on or
prior to three
Business Days prior to the specified effective date) if such
condition is not
satisfied. Any termination or reduction of the Commitments of
any Class shall be
permanent. Each reduction of the Commitments of any Class shall
be made ratably
among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.08 INTEREST ELECTIONS. (a) Each Revolving Borrowing
and
Term Borrowing initially shall be of the Type specified in the
applicable
Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an
initial Interest Period as specified in such Borrowing Request.
Thereafter,
Borrower may elect to convert such Borrowing to a different Type
or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest
Periods therefor, all as provided in this Section. Borrower may
elect different
options with respect to different portions of the affected
Borrowing, in which
case each such portion shall be allocated ratably among the
Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each
such portion
shall be considered a separate Borrowing. Notwithstanding
anything to the
contrary, Borrower shall not be entitled to request any
conversion or
continuation that, if made, would result in more than five
Eurodollar Borrowings
outstanding hereunder at any one time. This Section shall not
apply to Swingline
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, Borrower
shall
deliver, by hand delivery or telecopy, a duly completed and
executed Interest
Election Request to the Administrative Agent not later than the
time that a
Borrowing Request would be required under Section 2.03 if
Borrower were
requesting a Revolving Borrowing or Term Borrowing of the Type
resulting from
such election to be made on the effective date of such election.
Each Interest
Election Request shall be irrevocable.
(c) Each Interest Election Request shall specify the
following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies
and, if different options are being elected with respect to
different
portions thereof, or if outstanding Borrowings are being
combined,
allocation to each resulting Borrowing (in which case the
information to
be specified pursuant to clauses (iii) and (iv) below shall be
specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a
Eurodollar Borrowing; and
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(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the
Interest Period to be applicable thereto after giving effect to
such
election, which shall be a period contemplated by the definition
of the
term "Interest Period"; provided that until the date on which
the
Syndication Agent shall have notified Borrower that a
Successful
Syndication has been achieved, the Interest Period shall be
seven days.
If any such Interest Election Request requests a Eurodollar
Borrowing but does
not specify an Interest Period, then Borrower shall be deemed to
have selected
an Interest Period of one month's duration (subject to the
proviso in clause
(iv) above).
(d) Promptly following receipt of an Interest Election Request,
the
Administrative Agent shall advise each Lender of the details
thereof and of such
Lender's portion of each resulting Borrowing.
(e) If an Interest Election Request with respect to a
Eurodollar
Borrowing is not timely delivered prior to the end of the
Interest Period
applicable thereto, then, unless such Borrowing is repaid as
provided herein, at
the end of such Interest Period such Borrowing shall be
converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an
Event of Default
has occurred and is continuing, the Administrative Agent or the
Required Lenders
may require, by notice to Borrower, that (i) no outstanding
Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at
the end of the
Interest Period applicable thereto.
SECTION 2.09 AMORTIZATION OF TERM BORROWINGS. (a) Borrower shall
pay
to the Administrative Agent, for the account of the Lenders, on
the dates set
forth on Annex II, or if any such date is not a Business Day, on
the immediately
preceding Business Day (each such date, a "TERM LOAN REPAYMENT
DATE"), a
principal amount of the Term Loans equal to the amount set forth
on Annex II for
such date (as adjusted from time to time pursuant to Section
2.10(h)), together
in each case with accrued and unpaid interest on the principal
amount to be paid
to but excluding the date of such payment.
(b) To the extent not previously paid, all Term Loans shall be
due
and payable on the Term Loan Maturity Date.
SECTION 2.10 OPTIONAL AND MANDATORY PREPAYMENTS.
(a) Optional Prepayments. Borrower shall have the right at any
time
and from time to time to prepay any Borrowing, in whole or in
part, subject to
the requirements of this Section 2.10; provided that each
partial prepayment
shall be in an amount that is an integral multiple of $500,000
and not less than
$2.0 million.
(b) Revolving Loan Prepayments. (i) In the event of the
termination
of all the Revolving Commitments, Borrower shall, on the date of
such
termination, repay or prepay all its outstanding Revolving
Borrowings and all
outstanding Swingline Loans and replace all outstanding Letters
of Credit or
cash collateralize all outstanding Letters of Credit in
accordance with the
procedures set forth in Section 2.18(i).
(ii) In the event of any partial reduction of the Revolving
Commitments, then (x) at or prior to the effective date of such
reduction, the
Administrative Agent shall notify Borrower and the Revolving
Lenders of the sum
of the Revolving Exposures after giving effect to such reduction
and (y) if
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the sum of the Revolving Exposures would exceed the aggregate
amount of
Revolving Commitments after giving effect to such reduction,
then Borrower
shall, on the date of such reduction, first, repay or prepay
Swingline Loans,
second, repay or prepay Revolving Borrowings and third, replace
outstanding
Letters of Credit or cash collateralize outstanding Letters of
Credit in
accordance with the procedures set forth in Section 2.18(i), in
an aggregate
amount sufficient to eliminate such excess.
(iii) In the event that the sum of all Lenders' Revolving
Exposures
exceeds the Revolving Commitments then in effect, Borrower
shall, without notice
or demand, immediately first, repay or prepay Swingline Loans,
second, repay or
prepay Revolving Borrowings, and third, replace outstanding
Letters of Credit or
cash collateralize outstanding Letters of Credit in accordance
with the
procedures set forth in Section 2.18(i), in an aggregate amount
sufficient to
eliminate such excess.
(iv) In the event that the aggregate LC Exposure exceeds the
LC
Commitment then in effect, Borrower shall, without notice or
demand, immediately
replace outstanding Letters of Credit or cash collateralize
outstanding Letters
of Credit in accordance with the procedures set forth in Section
2.18(i), in an
aggregate amount sufficient to eliminate such excess.
(c) Asset Sales. Not later than five Business Days following
the
receipt of any Net Cash Proceeds of any Asset Sale by any
Company, Borrower
shall apply 100% of such Net Cash Proceeds to make prepayments
in accordance
with Sections 2.10(h) and (i); provided that:
(i) no such prepayment shall be required under this Section
2.10(c)
with respect to (A) any Asset Sale permitted by Section 6.06(a),
(c), (d),
(e), (f), (g), (h) or (j), (B) the disposition of property
which
constitutes a Casualty Event, or (C) Asset Sales for fair value
in the
context of the Companies' normal business operations resulting
in no more
than $500,000 in Net Cash Proceeds per Asset Sale (or series of
related
Asset Sales) and less than $1.0 million in aggregate Net Cash
Proceeds in
any fiscal year; provided that clause (C) shall not apply in the
case of
any Asset Sale described in clause (b) of the definition
thereof; and
(ii) so long as no Event of Default shall then exist or would
arise
therefrom, such proceeds shall not be required to be so applied
on such
date to the extent that (A) Borrower shall have delivered an
Officers'
Certificate to the Administrative Agent no later than five
Business Days
after such date stating that such Net Cash Proceeds are expected
to be
reinvested in fixed or capital assets (or that the applicable
Company
expects to enter into a binding agreement to such effect) within
180 days
following the date of such Asset Sale (which Officers'
Certificate shall
set forth the estimates of the proceeds to be so expended); and
(B) all
Net Cash Proceeds in respect of all Asset Sales (other than
those referred
to in clause (C) of Section 2.10(c)(i)) in excess of $1.0
million in the
aggregate at any time shall be held in the Collateral Account
and released
therefrom only in accordance with the provisions of Article IX;
provided
that (x) if all or any portion of such Net Cash Proceeds is not
so
reinvested (and the applicable Company has not entered into a
binding
agreement to such effect) within such 180-day period, such
unused portion
shall be applied on the last day of such period as a mandatory
prepayment
as provided in this Section 2.10(c); (y) if the property subject
to such
Asset Sale constituted Collateral, then all property purchased
with the
Net Cash Proceeds thereof pursuant to this subsection shall, to
the extent
required by Section 5.12, be made subject to the Lien of the
applicable
Security Documents in favor of the Collateral Agent, for its
benefit and
for the benefit of the other Secured Parties in accordance with
Sections
5.12 and 5.13 and (z) the amount of Net Cash Proceeds from Asset
Sales of
Real Property applied to a reinvestment pursuant to this clause
(ii) shall
not exceed $5.0 million in any fiscal year.
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(d) Debt Issuance or Preferred Stock Issuance. Not later than
five
Business Days following the receipt of any Net Cash Proceeds of
any Debt
Issuance or Preferred Stock Issuance by any Company, Borrower
shall make
prepayments in accordance with Sections 2.10(h) and (i) in an
aggregate
principal amount equal to 100% of such Net Cash Proceeds;
provided, however,
that the Net Cash Proceeds of any Debt Issuance incurred
pursuant to clause (n)
of Section 6.01 shall be required to be applied to make such
prepayments only to
the extent necessary to cause the Secured Leverage Ratio,
calculated on a Pro
Forma Basis after giving effect to such incurrence and such
prepayments, to be
less than or equal to 1.00 to 1.00.
(e) Equity Issuance. Not later than five Business Days following
the
receipt of any Net Cash Proceeds of any Equity Issuance,
Borrower shall make
prepayments in accordance with Sections 2.10(h) and (i) in an
aggregate
principal amount equal to 50% of such Net Cash Proceeds.
(f) Casualty Events. Not later than five Business Days following
the
receipt of any Net Cash Proceeds from a Casualty Event by any
Company resulting
in Net Cash Proceeds in excess of $500,000 for any single
Casualty Event or in
excess of $1.0 million for all Casualty Events during any fiscal
year, Borrower
shall apply an amount equal to 100% of such Net Cash Proceeds to
make
prepayments in accordance with Sections 2.10(h) and (i);
provided that any Net
Cash Proceeds used to repair, replace or restore any property in
respect of
which such Net Cash Proceeds were paid, or to reinvest in other
fixed or capital
assets, in each case within 180 days following the date of
receipt of such Net
Cash Proceeds (or pursuant to a binding agreement entered into
by the applicable
Company within such 180 day period), will not be required to be
applied to make
prepayments; provided, however, that if the property subject to
such Casualty
Event constituted Collateral under the Security Documents, then
all property
purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall
be made subject to the Lien of the applicable Security Documents
in favor of the
Collateral Agent, for its benefit and for the benefit of the
other Secured
Parties in accordance with Section 5.12 and 5.13;
(g) Excess Cash Flow. No later than the earlier of (i) 105
days
after the end of each Excess Cash Flow Period and (ii) fifteen
days after the
date on which the financial statements with respect to such
fiscal year in which
such Excess Cash Flow Period occurs are delivered pursuant to
Section 5.01(a),
Borrower shall make prepayments in accordance with Sections
2.10(h) and (i) in
an aggregate principal amount equal to 75% of Excess Cash Flow
for the Excess
Cash Flow Period then ended (provided that such percentage shall
be reduced to
50% if the Leverage Ratio for the Test Period then ended is
equal to or less
than 1.25 to 1.00).
(h) Application of Prepayments. (i) Prior to any optional or
mandatory prepayment hereunder, Borrower shall select the
Borrowing or
Borrowings to be prepaid and shall specify such selection in the
notice of such
prepayment pursuant to Section 2.10(i), subject to the
provisions of this
Section 2.10(h). All mandatory prepayments pursuant to Section
2.10(c), (d),
(e), (f) or (g) shall be applied to outstanding Term Loans,
first, to such
scheduled payments due on the next succeeding Term Loan
Repayment Date and,
second, on a pro rata basis among the payments remaining to be
made on each
subsequent Term Loan Repayment Date.
(ii) Amounts to be applied pursuant to this Section 2.10 to
the
prepayment of Term Loans and Revolving Loans shall be applied,
as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving
Loans,
respectively. Any amounts remaining after each such application
shall be applied
to prepay Eurodollar Term Loans or Eurodollar Revolving Loans,
as applicable.
Notwithstanding the foregoing, if the amount of any prepayment
of Loans required
under this Section 2.10 shall be in excess of the amount of the
ABR Loans at the
time outstanding (an "EXCESS AMOUNT"), only the portion
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of the amount of such prepayment as is equal to the amount of
such outstanding
ABR Loans shall be immediately prepaid and, at the election of
Borrower, the
balance of such required prepayment shall be either (A)
deposited in the
Collateral Account and applied to the prepayment of Eurodollar
Loans on the last
day of the then next-expiring Interest Period for Eurodollar
Loans; provided
that (i) interest in respect of such Excess Amount shall
continue to accrue
thereon at the rate provided hereunder for the Loans which such
Excess Amount is
intended to repay until such Excess Amount shall have been used
in full to repay
such Loans and (ii) at any time while an Event of Default has
occurred and is
continuing, the Administrative Agent may, and upon written
direction from the
Required Lenders shall, apply any or all proceeds then on
deposit in the
Collateral Account to the payment of such Loans in an amount
equal to such
Excess Amount or (B) prepaid immediately, together with any
amounts owing to the
Lenders under Section 2.13.
(i) Notice of Prepayment. Borrower shall notify the
Administrative
Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender)
by written notice of any prepayment hereunder (i) in the case of
prepayment of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three
Business Days before the date of prepayment, (ii) in the case of
prepayment of
an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business
Day before the date of prepayment and (iii) in the case of
prepayment of a
Swingline Loan, not later than 11:00 a.m., New York City time,
on the date of
prepayment. Each such notice shall be irrevocable; provided
that, if a notice of
prepayment is given in connection with a conditional notice of
termination of
the Commitments as contemplated by Section 2.07(c), then such
notice of
prepayment may be revoked if such termination is revoked in
accordance with
Section 2.07(c). Each such notice shall specify the prepayment
date, the
principal amount of each Borrowing or portion thereof to be
prepaid and, in the
case of a mandatory prepayment, a reasonably detailed
calculation of the amount
of such prepayment. Promptly following receipt of any such
notice (other than a
notice relating solely to Swingline Loans), the Administrative
Agent shall
advise the Lenders of the contents thereof. Such notice to the
Lenders may be by
electronic communication. Each partial prepayment of any
Borrowing shall be in
an amount that would be permitted in the case of a Credit
Extension of the same
Type as provided in Section 2.02, except as necessary to apply
fully the
required amount of a mandatory prepayment. Each prepayment of a
Borrowing shall
be applied ratably to the Loans included in the prepaid
Borrowing and otherwise
in accordance with this Section 2.10. Prepayments shall be
accompanied by
accrued interest to the extent required by Section 2.06.
SECTION 2.11 ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Administrative Agent determines (which determination
shall
be final and conclusive absent manifest error) that adequate
and
reasonable means do not exist for ascertaining the Adjusted
LIBOR Rate for
such Interest Period; or
(b) the Administrative Agent is advised in writing by the
Required
Lenders that the Adjusted LIBOR Rate for such Interest Period
will not
adequately and fairly reflect the cost to such Lenders of making
or
maintaining their Loans included in such Borrowing for such
Interest
Period;
then the Administrative Agent shall give written notice thereof
to Borrower and
the Lenders as promptly as practicable thereafter and, until the
Administrative
Agent notifies Borrower and the Lenders that the circumstances
giving rise to
such notice no longer exist, (i) any Interest Election Request
that requests the
conversion of any Borrowing to, or continuation of any Borrowing
as, a
Eurodollar Borrowing shall be
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deemed to be a request to convert such Borrowing into an ABR
Borrowing, and (ii)
if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall
be made as an ABR Borrowing.
SECTION 2.12 INCREASED COSTS. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit
or similar requirement against property of, deposits with or for
the
account of, or credit extended by, any Lender (except any such
reserve
requirement reflected in the Adjusted LIBOR Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement
or
Eurodollar Loans made by such Lender or any Letter of Credit
or
participation therein;
and the result of any of the foregoing shall be to increase the
cost to such
Lender of making or maintaining any Eurodollar Loan (or of
maintaining its
obligation to make any such Loan) or to increase the cost to
such Lender, the
Issuing Bank or such Lender's or the Issuing Bank's holding
company, if any, of
participating in, issuing or maintaining any Letter of Credit or
to reduce the
amount of any sum received or receivable by such Lender or the
Issuing Bank
hereunder (whether of principal, interest or otherwise), then
Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such
additional amount
or amounts as will compensate such Lender or the Issuing Bank,
as the case may
be, for such additional costs incurred or reduction suffered, it
being
understood that, to the extent duplicative of the provisions of
Section 2.15,
this Section 2.12 shall not apply to Taxes.
(b) If any Lender or the Issuing Bank determines (in good faith,
but
in its sole absolute discretion) that any Change in Law
regarding capital
requirements has or would have the effect of reducing the rate
of return on such
Lender's or the Issuing Bank's capital or on the capital of such
Lender's or the
Issuing Bank's holding company, if any, as a consequence of this
Agreement or
the Loans made by, or participations in Letters of Credit held
by, such Lender,
or the Letters of Credit issued by the Issuing Bank, to a level
below that which
such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding
company could have achieved but for such Change in Law (taking
into
consideration such Lender's or the Issuing Bank's policies and
the policies of
such Lender's or the Issuing Bank's holding company with respect
to capital
adequacy), then from time to time Borrower will pay to such
Lender or the
Issuing Bank, as the case may be, such additional amount or
amounts as will
compensate such Lender or the Issuing Bank or such Lender's or
the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
in
reasonable detail the amount or amounts necessary to compensate
such Lender or
the Issuing Bank or its holding company, as the case may be, as
specified in
paragraph (a) or (b) of this Section 2.12 shall be delivered to
Borrower (with a
copy to the Administrative Agent) and shall be conclusive and
binding absent
manifest error. Borrower shall pay such Lender or the Issuing
Bank, as the case
may be, the amount shown as due on any such certificate within 5
days after
receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank
to demand compensation pursuant to this Section 2.12 shall not
constitute a
waiver of such Lender's or the Issuing Bank's right to demand
such compensation;
provided that Borrower shall not be required to compensate a
Lender or the
Issuing Bank pursuant to this Section for any increased costs or
reductions
incurred more than 180 days prior to the date that such Lender
or the Issuing
Bank, as the case may be, notifies
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Borrower of the Change in Law giving rise to such increased
costs or reductions
and of such Lender's or the Issuing Bank's intention to claim
compensation
therefor; provided, further, that, if the Change in Law giving
rise to such
increased costs or reductions is retroactive, then the 180-day
period referred
to above shall not begin earlier than the date of effectiveness
of the Change in
Law.
SECTION 2.13 BREAKAGE PAYMENTS. In the event of (a) the payment
or
prepayment, whether optional or mandatory, of any principal of
any Eurodollar
Loan earlier than the last day of an Interest Period applicable
thereto
(including as a result of an Event of Default), (b) the
conversion of any
Eurodollar Loan earlier than the last day of the Interest Period
applicable
thereto, (c) the failure to borrow, convert, continue or prepay
any Eurodollar
Loan on the date specified therefor in any notice delivered
pursuant hereto, or
(d) the assignment of any Eurodollar Loan earlier than the last
day of the
Interest Period applicable thereto as a result of a request by
Borrower pursuant
to Section 2.16, then, in any such event, Borrower shall
compensate each
affected Lender for the loss, cost and expense attributable to
such event for
such Lender. In the case of any such event, such loss, cost or
expense to any
Lender shall be deemed to include an amount determined by such
Lender to be the
excess, if any, of (i) the amount of interest or fees which
would have accrued
on the principal amount of such Loan had such event not
occurred, at the
Adjusted LIBOR Rate that would have been applicable to such
Loan, for the period
from the date of such event to the last day of the then current
Interest Period
therefor (or, in the case of a failure to borrow, convert,
continue or reduce as
specified in such notice, for the period that would have been
the Interest
Period for such Loan), over (ii) the amount of interest or fees
which would
accrue on such principal amount of such Loan for such period at
the interest
rate which such Lender would bid were it to bid, at the
commencement of such
period, for dollar deposits of a comparable amount and period
from other banks
in the Eurodollar market. A certificate of any Lender setting
forth in
reasonable detail any amount or amounts that such Lender is
entitled to receive
pursuant to this Section 2.13 shall be delivered to Borrower
(with a copy to the
Administrative Agent) and shall be conclusive and binding absent
manifest error.
Borrower shall pay such Lender the amount shown as due on any
such certificate
within 5 days after receipt thereof.
SECTION 2.14 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF
SETOFFS. (a) Borrower shall make each payment required to be
made by it
hereunder or under any other Loan Document (whether of
principal, interest, fees
or LC Reimbursement Obligations, or of amounts payable under
Section 2.12, 2.13
or 2.15, or otherwise) on or before the time expressly required
hereunder or
under such other Loan Document for such payment (or, if no such
time is
expressly required, prior to 2:00 p.m., New York City time), on
the date when
due, in immediately available funds, without setoff, deduction
or counterclaim.
Any amounts received after such time on any date may, in the
discretion of the
Administrative Agent, be deemed to have been received on the
next succeeding
Business Day for purposes of calculating interest thereon. All
such payments
shall be made to the Administrative Agent at its offices at 677
Washington
Boulevard, Stamford, Connecticut 06901 (ABA# 026007993, account#
WA860050524),
except payments to be made directly to the Issuing Bank or
Swingline Lender as
expressly provided herein and except that payments pursuant to
Sections 2.12,
2.13, 2.15 and 11.03 shall be made directly to the persons
entitled thereto and
payments pursuant to other Loan Documents shall be made to the
persons specified
therein. The Administrative Agent shall distribute any such
payments received by
it for the account of any other person to the appropriate
recipient promptly
following receipt thereof. If any payment under any Loan
Document shall be due
on a day that is not a Business Day, unless specified otherwise,
the date for
payment shall be extended to the next succeeding Business Day,
and, in the case
of any payment accruing interest, interest thereon shall be
payable for the
period of such extension. All payments under each Loan Document
shall be made in
dollars, except as expressly specified otherwise.
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(b) If at any time insufficient funds are received by and
available
to the Administrative Agent to pay fully all amounts of
principal, LC
Reimbursement Obligations, interest and fees then due hereunder,
such funds
shall be applied (i) first, towards payment of interest and fees
then due
hereunder, ratably among the parties entitled thereto in
accordance with the
amounts of interest and fees then due to such parties, and (ii)
second, towards
payment of principal and LC Reimbursement Obligations then due
hereunder,
ratably among the parties entitled thereto in accordance with
the amounts of
principal and LC Reimbursement Obligations then due to such
parties.
(c) If any Lender shall, by exercising any right of setoff
or
counterclaim or otherwise (including by exercise of its rights
under Section
9.1(a)(viii) of the Security Agreement), obtain payment in
respect of any
principal of or interest on any of its Revolving Loans, Term
Loans or
participations in LC Disbursements or Swingline Loans resulting
in such Lender
receiving payment of a greater proportion of the aggregate
amount of its
Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline
Loans and accrued interest thereon than the proportion received
by any other
Lender, then the Lender receiving such greater proportion shall
purchase (for
cash at face value) participations in the Revolving Loans, Term
Loans and
participations in LC Disbursements and Swingline Loans of other
Lenders to the
extent necessary so that the benefit of all such payments shall
be shared by the
Lenders ratably in accordance with the aggregate amount of
principal of and
accrued interest on their respective Revolving Loans, Term Loans
and
participations in LC Disbursements and Swingline Loans; provided
that (i) if any
such participations are purchased and all or any portion of the
payment giving
rise thereto is recovered, such participations shall be
rescinded and the
purchase price restored to the extent of such recovery, without
interest, and
(ii) the provisions of this paragraph shall not be construed to
apply to any
payment made by Borrower pursuant to and in accordance with the
express terms of
this Agreement or any payment obtained by a Lender as
consideration for the
assignment of or sale of a participation in any of its Loans or
participations
in LC Disbursements to any assignee or participant, other than
to Borrower or
any of its Subsidiaries or Affiliates (as to which the
provisions of this
paragraph shall apply). Each Loan Party consents to the
foregoing and agrees, to
the extent it may effectively do so under applicable law, that
any Lender
acquiring a participation pursuant to the foregoing arrangements
may exercise
against such Loan Party rights of setoff and counterclaim with
respect to such
participation as fully as if such Lender were a direct creditor
of such Loan
Party in the amount of such participation. If under applicable
bankruptcy,
insolvency or any similar law any Secured Party receives a
secured claim in lieu
of a setoff or counterclaim to which this Section 2.14(c)
applies, such Secured
Party shall to the extent practicable, exercise its rights in
respect of such
secured claim in a manner consistent with the rights to which
the Secured Party
is entitled under this Section 2.14(c) to share in the benefits
of the recovery
of such secured claim.
(d) Unless the Administrative Agent shall have received notice
from
Borrower prior to the date on which any payment is due to the
Administrative
Agent for the account of the Lenders hereunder that Borrower
will not make such
payment, the Administrative Agent may assume that Borrower has
made such payment
on such date in accordance herewith and may, in reliance upon
such assumption,
distribute to the Lenders the amount due. In such event, if
Borrower has not in
fact made such payment, then each of the Lenders severally
agrees to repay to
the Administrative Agent forthwith on demand the amount so
distributed to such
Lender with interest thereon, for each day from and including
the date such
amount is distributed to it to but excluding the date of payment
to the
Administrative Agent, at the greater of the Federal Funds
Effective Rate and a
rate determined by the Administrative Agent in accordance with
banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made
by it pursuant to Section 2.02(c), 2.14(d), 2.17(d), 2.18(d),
2.18(e) or
11.03(d), then the Administrative Agent may, in
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its discretion (notwithstanding any contrary provision hereof),
apply any
amounts thereafter received by the Administrative Agent for the
account of such
Lender to satisfy such Lender's obligations under such Sections
until all such
unsatisfied obligations are fully paid.
SECTION 2.15 TAXES. (a) Any and all payments by or on account of
any
obligation of Borrower hereunder or under any other Loan
Document shall be made
without setoff, counterclaim or other defense and free and clear
of and without
deduction or withholding for any and all Indemnified Taxes;
provided that if
Borrower shall be required by law to deduct any Indemnified
Taxes from such
payments, then (i) the sum payable shall be increased as
necessary so that after
making all required deductions (including deductions or
withholdings applicable
to additional sums payable under this Section 2.15) the
Administrative Agent,
any Lender or the Issuing Bank, as the case may be, receives an
amount equal to
the sum it would have received had no such deductions or
withholdings been made,
(ii) Borrower shall make such deductions or withholdings and
(iii) Borrower
shall pay the full amount deducted or withheld to the relevant
Governmental
Authority in accordance with applicable law.
(b) In addition, Borrower shall pay any Other Taxes to the
relevant
Governmental Authority in accordance with applicable law.
(c) Borrower shall indemnify the Administrative Agent, each
Lender
and the Issuing Bank, within 10 Business Days after written
demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by
the
Administrative Agent, such Lender or the Issuing Bank, as the
case may be, on or
with respect to any payment by or on account of any obligation
of Borrower
hereunder or under any other Loan Document (including
Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable
under this
Section 2.15) and any penalties, interest and reasonable
expenses arising
therefrom or with respect thereto, whether or not such
Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the
relevant
Governmental Authority. A certificate as to the amount of such
payment or
liability delivered to Borrower by a Lender or the Issuing Bank,
or by the
Administrative Agent on its own behalf or on behalf of a Lender
or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or
Other Taxes and in any event within 30 days of any such payment
being due, by
Borrower to a Governmental Authority, Borrower shall deliver to
the
Administrative Agent the original or a certified copy of a
receipt issued by
such Governmental Authority evidencing such payment, a copy of
the return
reporting such payment or other evidence of such payment
reasonably satisfactory
to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from or
reduction of
withholding tax under the law of the jurisdiction in which
Borrower is located,
or any treaty to which such jurisdiction is a party, with
respect to payments
under this Agreement shall deliver to Borrower (with a copy to
the
Administrative Agent), at the time or times prescribed by
applicable law and
reasonably requested by Borrower or the Administrative Agent,
such properly
completed and executed documentation prescribed by applicable
law and reasonably
requested by Borrower or the Administrative Agent as will permit
such payments
to be made without withholding or at a reduced rate. Each
Foreign Lender shall
(i) furnish either (a) two accurate and complete originally
executed U.S.
Internal Revenue Service Form W-8BEN and/or Form W-8IMY, as
applicable (or
successor form) or (b) an accurate and complete U.S. Internal
Revenue Service
Form W-8ECI (or successor form), certifying, in either case, to
such Foreign
Lender's legal entitlement to an exemption or reduction from
U.S. federal
withholding tax with respect to all payments hereunder, and (ii)
to the extent
it may lawfully do so at such times, upon reasonable request by
Borrower or the
Administrative Agent, provide a new Form W-8BEN and/or Form
W-8IMY, as
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applicable (or successor form) or Form W-8ECI (or successor
form) upon the
expiration or obsolescence of any previously delivered form to
reconfirm any
complete exemption from, or any entitlement to a reduction in,
U.S. federal
withholding tax with respect to any payment hereunder; provided
that any Foreign
Lender that is not a "bank" within the meaning of Section
881(c)(3)(A) of the
Code and is claiming the so-called "portfolio interest
exemption" shall also
furnish a "Non-Bank Certificate" in the form of Exhibit P
together with a Form
W-8BEN and/or Form W-8IMY, as applicable. Notwithstanding
anything in this
Section 2.15 to the contrary, no Foreign Lender shall be
entitled to any
indemnification or other benefits of Section 2.15(a), (b), (c)
or (d) if such
Lender has failed to deliver any of the documentation required
to be delivered
by it pursuant to this Section 2.15(e). Each Lender that is not
a Foreign Lender
shall furnish an accurate and complete U.S. Internal Revenue
Service Form W-9
(or successor form) establishing that such Lender is not subject
to U.S. backup
withholding, and to the extent it may lawfully do so at such
times, upon
reasonable request by Borrower or the Administrative Agent,
provide a new Form
W-9 (or successor form) upon the expiration or obsolescence of
any previously
delivered form.
(f) If the Administrative Agent or a Lender (or an assignee)
determines in its reasonable discretion that it has received a
refund of any
Indemnified Taxes or Other Taxes as to which it has been
indemnified by Borrower
or with respect to which Borrower has paid additional amounts
pursuant to this
Section 2.15, it shall pay over such refund to Borrower (but
only to the extent
of indemnity payments made, or additional amounts paid, by
Borrower under this
Section 2.15 with respect to the Indemnified Taxes or the Other
Taxes giving
rise to such refund), net of all out-of-pocket expenses of the
Administrative
Agent or such Lender (or assignee) and without interest (other
than any interest
paid by the relevant Governmental Authority with respect to such
refund);
provided, however, that Borrower, upon the request of the
Administrative Agent
or such Lender (or assignee), agrees to repay the amount paid
over to Borrower
(plus any penalties, interest or other charges imposed by the
relevant
Governmental Authority) to the Administrative Agent or such
Lender (or assignee)
within a reasonable time (not to exceed 20 days) after receipt
of written notice
that the Administrative Agent or such Lender (or assignee) is
required to repay
such refund to such Governmental Authority. Nothing contained in
this Section
2.15(f) shall require the Administrative Agent or any Lender (or
assignee) to
make available its Tax Returns or any other information which it
deems
confidential to Borrower or any other person. Notwithstanding
anything to the
contrary, in no event will any Lender be required to pay any
amount to Borrower
the payment of which would place such Lender in a less favorable
net after-tax
position than such Lender would have been in if the additional
amounts giving
rise to such refund of any Indemnified Taxes or Other Taxes had
never been paid.
(g) For purposes of this Section 2.15, in the case of any
Lender
that is treated as a partnership for U.S. federal income tax
purposes, any Taxes
required to be deducted and withheld by such Lender with respect
to payments
made by Borrower under any Loan Document shall be treated as
Taxes required to
be deducted by Borrower, but only to the extent such Taxes would
have been
required to be deducted and withheld by such Lender if such
Lender were
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