SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported)
December 1, 1994
ASHLAND COAL, INC.
(Exact name or registrant as specified in its charter)
DELAWARE 1-9993 61-0880012
(State or other (Commission file number) (I.R.S.Employer
jurisdiction of Identification No.)
incorporation or
organization)
2205 FIFTH STREET ROAD, HUNTINGTON, WEST VIRGINIA 25701
(Address of principal executive offices) (Zip Code)
P.O. BOX 6300, HUNTINGTON, WEST VIRGINIA 25771
(Mailing Address) (Zip Code)
Registrant's telephone number, including area code: (304) 526-3333
Item 5. Other Events.
Execution of Amended and Restated Revolving Credit Agreement
Ashland Coal has executed an Amended and Restated Revolving
Credit Agreement which increases its available credit under the
facility to $500 million from $180 million and enhances its
financing flexibility by expanding its fixed and floating
interest rate options. The facility was made effective November
15, 1994 and the first borrowing of $25 million was made under
the facility on December 1, 1994. Bank of America Illinois,
Morgan Guaranty Trust Company of New York, National Westminster
Bank PLC, the First National Bank of Chicago and PNC Bank,
National Association are agents under the Facility.
Item 7. Financial Statements and Exhibits
The following exhibit is filed as a part of this report:
4.1 Amended and Restated Credit Agreement dated as of November
15, 1994, among Ashland Coal, Inc., the Banks listed therein, and
Bank of America Illinois, Morgan Guaranty Trust Company of New
York, National Westminster Bank PLC, the First National Bank of
Chicago and PNC Bank, National Association, as Agents.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
ASHLAND COAL, INC.
(Registrant)
By: /s/ Roy F. Layman
Administrative Vice
President and Secretary
Date: December 2, 1994
$500,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
November 15, 1994
among
Ashland Coal, Inc.
and
The Banks Listed Herein
and
Bank of America Illinois
Morgan Guaranty Trust Company of New York
National Westminster Bank PLC
The First National Bank of Chicago
PNC Bank, National Association,
as Agents
and
National Westminster Bank PLC,
as Coordinating and Administrative Agent
TABLE OF CONTENTS<F1>
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.............................. 1
1.02 Accounting Terms and Determinations...... 14
1.03 Types of Borrowings...................... 14
ARTICLE II
THE CREDITS
SECTION 2.01 Loan Commitments......................... 15
2.02 Notice of Syndicated Borrowings.......... 15
2.03 Money Market Borrowings.................. 16
2.04 Notice to Banks; Funding of Loans........ 19
2.05 Notes.................................... 20
2.06 Maturity of Loans........................ 21
2.07 Interest Rates........................... 21
2.08 Fees..................................... 24
2.09 Optional Termination or Reduction
of Commitments......................... 24
2.10 Mandatory Termination of Commitments..... 25
2.11 Optional Prepayments..................... 25
2.12 General Provisions as to Payments........ 25
2.13 Funding Losses........................... 26
2.14 Computation of Interest and Fees......... 26
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01 All Borrowings........................... 26
3.02 First Borrowing.......................... 27
3.03 Return of Existing Notes................. 28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power............ 28
4.02 Corporate and Governmental
Authorization; Contravention........... 28
4.03 Binding Effect........................... 28
4.04 Government Approval, Regulation, etc..... 29
4.05 Financial Information.................... 29
4.06 Litigation............................... 29
4.07 Compliance with ERISA.................... 29
[FN]
<F1> The Table of Contents is not a part of this Agreement.
4.08 Taxes.................................... 29
4.09 Subsidiaries............................. 30
4.10 Full Disclosure.......................... 30
4.11 Lease Payments........................... 30
4.12 Environmental Matters.................... 30
ARTICLE V
COVENANTS
SECTION 5.01 Information.............................. 31
5.02 Payment of Obligations................... 33
5.03 Maintenance of Property; Insurance....... 33
5.04 Conduct of Business and Maintenance
of Existence........................... 33
5.05 Compliance with Laws..................... 33
5.06 Inspection of Property, Books
and Records............................ 34
5.07 Debt Limitation.......................... 34
5.08 Minimum Consolidated Net Worth........... 34
5.09 Restricted Payments...................... 34
5.10 Negative Pledge.......................... 34
5.11 Consolidations, Mergers and Sales
of Assets.............................. 36
5.12 Use of Proceeds.......................... 36
5.13 Transactions with Affiliates............. 36
5.14 Subsidiary Debt.......................... 37
5.15 EBITDAR Ratio............................ 37
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default........................ 37
6.02 Notice of Default........................ 39
6.03 Limitation on Remedies................... 39
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment and Authorization............ 40
7.02 Administrative Agent and Affiliates...... 40
7.03 Action by Administrative Agent or
Agents.................................. 40
7.04 Consultation with Experts................ 40
7.05 Liability of Administrative Agent or
Agents.................................. 40
7.06 Indemnification.......................... 41
7.07 Credit Decision.......................... 41
7.08 Successor Administrative Agent........... 41
7.09 Administrative Agent's and Agents'
Fees.................................... 42
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest Rate
Inadequate or Unfair................... 42
8.02 Illegality............................... 43
8.03 Increased Cost and Reduced Return........ 44
8.04 Reference Rate Loans Substituted for
Affected Fixed Rate Loans.............. 46
8.05 Change in Ownership...................... 46
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices.................................. 47
9.02 No Waivers............................... 47
9.03 Expenses; Documentary Taxes;
Indemnification........................ 47
9.04 Sharing of Set-Offs...................... 48
9.05 Amendments and Waivers................... 49
9.06 Successors and Assigns................... 49
9.07 Confidentiality.......................... 52
9.08 Collateral............................... 52
9.09 New York Law and Forum................... 52
9.10 Counterparts; Integration;
Effectiveness.......................... 53
Exhibits and Schedule
Exhibit A - Reference Rate Note
Exhibit B - CD Rate Note
Exhibit C - Euro-Dollar Note
Exhibit D - Money Market Note
Exhibit E - Money Market Quote Request
Exhibit F - Invitation for Money Market Quotes
Exhibit G - Money Market Quote
Exhibits H(1) and H(2) - Opinions of Counsels for the Borrower
Exhibit I - Opinion of Special Counsel for
the Administrative Agent
Exhibit J - Assignment Agreement
Schedule K - Disclosure Schedule
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November
15, 1994, (the "Agreement") among ASHLAND COAL, INC., a Delaware
corporation (the "Borrower"); the BANKS listed on the signature
pages hereof; BANK OF AMERICA ILLINOIS (formerly Continental Bank
N.A.), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, NATIONAL
WESTMINSTER BANK PLC, THE FIRST NATIONAL BANK OF CHICAGO AND PNC
BANK, NATIONAL ASSOCIATION, as Agents; and NATIONAL WESTMINSTER
BANK PLC, as Coordinating and Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, certain of the Banks, Bank of America
Illinois, as agent for those Banks, and National Westminster Bank
PLC, as co-agent for those Banks, are parties to an Amended and
Restated Credit Agreement dated as of April 1, 1992, as amended
(the "Existing Credit Agreement"), pursuant to which such Banks
made loans to the Borrower which are outstanding on the date
hereof (the "Existing Loans") and which are evidenced by
promissory notes executed by the Borrower in connection with the
Existing Credit Agreement (the "Existing Notes");
WHEREAS, the Borrower has requested that the Existing Credit
Agreement be amended and restated as set forth herein;
NOW, THEREFORE, to effectuate the foregoing the parties
hereto agree that upon the effectiveness hereof, the Existing
Credit Agreement shall be amended and restated to read in its
entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Adjusted CD Rate" is defined in Section 2.07(b).
"Adjusted Euro-Dollar Rate" has the meaning set forth in
Section 2.07(c).
"Administrative Agent" means National Westminster Bank PLC
in its capacity as coordinating and administrative agent for the
Banks hereunder, and its successors in such capacity.
"Affiliate" means (i) any Person (including, without
limitation, any Principal Shareholder) that directly, or
indirectly through one or more intermediaries, controls the
Borrower (a "Controlling Person") or (ii) any Person (other than
the Borrower or a Subsidiary of the Borrower) which is controlled
by or is under common control with a Controlling Person. As used
herein, the term "control" means 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.
"Agents" means Bank of America Illinois, Morgan Guaranty
Trust Company of New York, National Westminster Bank PLC, The
First National Bank of Chicago and PNC Bank, National
Association, in their capacities as agents for the Banks
hereunder, and their successors in such capacities.
"Alternate Reference Rate" means, for any day, a fluctuating
rate per annum (rounded upward to the next highest 1/8 of 1% if
not already an integral multiple of 1/8 of 1%) equal to the
greater of (i) the Reference Rate in effect on such day plus the
Applicable Margin for Reference Rate Loans, or (ii) the Federal
Funds Rate in effect on such day plus 0.5% plus the Applicable
Margin for Reference Rate Loans. For purposes of this Agreement,
any change in the Alternate Reference Rate due to a change in the
Federal Funds Rate shall be effective on the effective date of
such change in the Federal Funds Rate. If for any reason
National Westminster Bank PLC shall have reasonably determined
(which determination shall be conclusive in the absence of
manifest error) that it is unable to ascertain the Federal Funds
Rate for any reason, including, without limitation, the inability
or failure of National Westminster Bank PLC to obtain sufficient
bids or publications in accordance with the terms hereof, the
Alternate Reference Rate shall be the Reference Rate plus the
Applicable Margin for Reference Rate Loans until the
circumstances giving rise to such inability no longer exist.
"Applicable Facility Fee Rate" means:
(a) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is less than 35%:
0.15%;
(b) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 35% but less than 45%: 0.1875%;
(c) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 45% but less than 50%: 0.225%;
(d) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 50% but less than 55%: 0.275%;
(e) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 55%: 0.35%.
For purposes of this definition, the amount of Consolidated
Debt and Consolidated Net Worth shall be measured quarterly on
each March 31, June 30, September 30 and December 31 based on the
average daily Consolidated Debt during the quarter ending on such
date and the Consolidated Net Worth on such date as reflected on
the certificate required by Section 5.01(h). If during any
quarterly period the ratio of Consolidated Debt to the sum of
Consolidated Debt and Consolidated Net Worth shall increase to an
amount equal to or exceeding a threshold which would result in
the application of a higher Applicable Facility Fee Rate for the
following quarter, the higher Applicable Facility Fee Rate shall
apply retroactively to the first day of such following quarter.
If during any quarterly period the ratio of Consolidated Debt to
the sum of Consolidated Debt and Consolidated Net Worth shall
decrease to an amount less than a threshold which would result in
the application of a lower Applicable Facility Fee Rate for the
following quarter, the lower Applicable Facility Fee Rate shall
apply beginning after receipt by the Administrative Agent of the
certificate required by Section 5.01(h).
"Applicable Margin" means:
(a) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is less than 35%:
(i) 0.0% for Reference Rate Loans; (ii) 0.350% for CD Rate Loans;
and (iii) 0.225% for Euro-Dollar Loans;
(b) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 35% but less than 45%: (i) 0.0% for Reference Rate
Loans; (ii) 0.4% for CD Rate Loans; and (iii) 0.275% for Euro-
Dollar Loans;
(c) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 45% but less than 50%: (i) 0.0% for Reference Rate
Loans; (ii) 0.45% for CD Rate Loans; and (iii) 0.325% for Euro-
Dollar Loans;
(d) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 50% but less than 55%: (i) 0.0% for Reference Rate
Loans; (ii) 0.625% for CD Rate Loans; and (iii) 0.5% for Euro-
Dollar Loans;
(e) when the ratio of (x) Consolidated Debt to (y) the sum
of Consolidated Debt and Consolidated Net Worth is equal to or
greater than 55%: (i) 0.0% for Reference Rate Loans; (ii) 0.75%
for CD Rate Loans; and (iii) 0.625 Euro-Dollar Loans.
For purposes of this definition, the amount of Consolidated
Debt and Consolidated Net Worth shall be measured quarterly on
each March 31, June 30, September 30 and December 31 based on the
average daily Consolidated Debt during the quarter ending on such
date and the Consolidated Net Worth on such date as reflected on
the certificate required by Section 5.01(h). If during any
quarterly period the ratio of Consolidated Debt to the sum of
Consolidated Debt and Consolidated Net Worth shall increase to an
amount equal to or exceeding a threshold which would result in
the application of a higher Applicable Margin for the following
quarter, the higher Applicable Margin shall apply retroactively
to the first day of such following quarter. If during any
quarterly period the ratio of Consolidated Debt to the sum of
Consolidated Debt and Consolidated Net Worth shall decrease to an
amount less than a threshold which would result in the
application of a lower Applicable Margin for the following
quarter, the lower Applicable Margin shall apply beginning after
receipt by the Administrative Agent of the certificate required
by Section 5.01(h).
"Assessment Rate" has the meaning set forth in Section
2.07(b).
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each Bank listed on the signature pages hereof
as having a Commitment, each Assignee which becomes a Bank
pursuant to Section 9.06(c), and their respective successors.
"Borrower" means Ashland Coal, Inc., a Delaware corporation,
and its successors.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Rate" is defined in Section 2.07(b).
"CD Rate Borrowing" is defined in Section 1.03.
"CD Rate Loan" means a Loan to be made by a Bank pursuant to
Section 2.01 as a CD Rate Loan in accordance with the applicable
Notice of Syndicated Borrowing.
"CD Rate Note" means a promissory note of the Borrower
substantially in the form of Exhibit B hereto evidencing the
obligation of the Borrower to repay the CD Rate Loans.
"CD Reference Rate Banks" means National Westminster Bank
PLC, Bank of America Illinois and Morgan Guaranty Trust Company
of New York. If any of the CD Reference Rate Banks shall be
unable or shall fail for any reason to timely provide notice of a
rate to the Administrative Agent for any reason, the CD Rate
shall be determined on the basis of the rate of the other CD
Reference Rate Bank(s).
"CD Reserve Requirement" is defined in Section 2.07(b).
"Closing Date" means the date upon which the conditions
listed in Section 3.02 hereof have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor statute.
"Commitment" means, with respect to each Bank, the amount
set forth opposite the name of such Bank on the signature pages
hereof, as such amount may be reduced pursuant to Section 2.09.
"Consolidated Adjusted Net Income Available for
Distributions" means net earnings after income taxes of the
Borrower and its Subsidiaries determined on a consolidated basis,
but excluding:
1. any gain or loss arising from the sale of capital
assets;
2. any gain or loss arising from any write-up or
write-down of assets;
3. earnings of any Subsidiary accrued prior to the
date it became a Subsidiary;
4. earnings of any Person, substantially all the
assets of which have been acquired in any manner, realized
by such Person prior to the date of such acquisition;
5. net earnings of any Person (other than a
Subsidiary) in which the Borrower or any Subsidiary has an
ownership interest unless such net earnings shall have
actually been received by the Borrower or such Subsidiary in
the form of cash or property distributions; and
6. any gain arising from the acquisition of any
securities of the Borrower or any Subsidiary.
"Consolidated Debt" means at any date the consolidated Debt
of the Borrower and its Subsidiaries, determined as of such date.
"Consolidated EBITDAR" means, for any period, on a
consolidated basis for the Borrower and its Subsidiaries, (a) the
sum of (1) net income after income taxes for such period, (2)
depletion, depreciation and amortization expense for such period,
(3) interest expense net of interest income for such period, (4)
Federal and state income taxes for such period, (5) extraordinary
losses for such period, and (6) lease expense (excluding expense
for Mineral Leases and surface leases) for such period, minus (b)
the sum of extraordinary gains for such period.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Subsidiaries,
determined as of such date.
"Controlled Group" means all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of
the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee
under capital leases, (v) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by
such Person, and (vi) all Debt of others Guaranteed by such
Person.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Domestic Business Day" means any day other than a Saturday
or Sunday on which banks are open for business in New York, New
York and Chicago, Illinois.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth on the signature pages hereof
(or identified on the signature pages hereof as its Domestic
Lending Office) or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to the
Borrower and the Administrative Agent.
"EBITDAR Ratio" means the average of the ratio of
Consolidated EBITDAR to consolidated interest and lease expense
(excluding expense for Mineral Leases and surface leases) of the
Borrower and its Subsidiaries in each of the four consecutive
fiscal quarterly periods ending as of the end of any fiscal
quarter of the Borrower.
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 9.10 and the obligation of
any Bank to make Loans arises under Section 3.02.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Euro-Dollar Business Day" means any Domestic Business Day
on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth on
the signature pages hereof (or identified on the signature pages
hereof as its Euro-Dollar Lending Office) or such other office,
branch or affiliate of such Bank as it may hereafter designate as
its Euro-Dollar Lending Office by notice to the Borrower and the
Administrative Agent.
"Euro-Dollar Loan" means a Loan to be made by a Bank
pursuant to Section 2.01 as a Euro-Dollar Loan in accordance with
the applicable notice of Syndicated Borrowing.
"Euro-Dollar Note" means a promissory note of the Borrower
substantially in the form of Exhibit C hereto evidencing the
obligation of the Borrower to repay the Euro-Dollar Loans.
"Euro-Dollar Reference Rate Banks" means National
Westminster Bank PLC, Bank of America Illinois and Morgan
Guaranty Trust Company of New York. If any of the Euro-Dollar
Reference Rate Banks shall be unable or shall fail for any reason
to timely provide notice of a rate to the Administrative Agent
for any reason, the London Interbank Offered Rate shall be
determined on the basis of the rate of the other Euro-Dollar
Reference Rate Bank(s).
"Euro-Dollar Reserve Percentage" has the meaning set forth
in Section 2.07(c).
"Event of Default" has the meaning set forth in Section
6.01.
"Existing Credit Agreement" has the meaning set forth in the
first recital hereof.
"Existing Loans" has the meaning set forth in the first
recital hereof.
"Existing Notes" has the meaning set forth in the first
recital hereof.
"Federal Funds Rate" means, for any day, an interest rate
per annum equal to the average of all the quotations for such day
on overnight Federal funds transactions received by National
Westminster Bank PLC, from at least two Federal funds brokers of
recognized standing selected by it. In case of a day which is
not a Domestic Business Day, the Federal Funds Rate for such day
shall be the Federal Funds Rate for the next preceding Domestic
Business Day.
"Fixed Rate Loans" means CD Rate Loans, Euro-Dollar Loans or
Money Market Loans (excluding Money Market Loans bearing interest
at the reference rate pursuant to Section 8.01) or any
combination of the foregoing.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing
any Debt of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent
or otherwise, of such Person (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt
(whether arising by virtue of partnership arrangements, by
agreement to keepwell, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect
thereof (in whole or in part), provided, that the term Guarantee
shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb
has a corresponding meaning.
"Hedging Obligation" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements,
interest cap agreements and interest rate collar agreements, and
all other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, currency exchange
rates, commodity prices or any other financial risk.
"Intangible Assets" means:
(1) deferred assets, other than prepaid royalties,
prepaid insurance and prepaid taxes;
(2) patents, copyrights, trademarks, trade names,
franchises, good will, experimental expenses and other
similar intangibles (excluding, however, any intangible
assets included in the Borrower's consolidated balance sheet
under the captions "Coal lands and mineral rights" as at the
Closing Date, and "Coal supply agreements");
(3) unamortized debt discount and expense; and
(4) assets located, and notes and receivables, other
than notes and trade receivables arising in the ordinary
course of business, due from obligors domiciled, outside the
United States of America, Puerto Rico or Canada.
"Interest Period" means:
(1) with respect to each Euro-Dollar Borrowing, the
period commencing on the date of such Borrowing and ending
one, two, three six or, provided the Euro-Dollar Reference
Banks determine that deposits in dollars (in applicable
amounts) are being offered on the relevant market, nine or
twelve months thereafter, in each case as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month;
(c) if any Interest Period includes a date on
which a payment of principal of the Loans is required
to be made under Section 2.10 but does not end on such
date, then (i) the principal amount (if any) of each
Euro-Dollar Loan required to be repaid on such date
shall have an Interest Period ending on such date and
(ii) the remainder (if any) of each such Euro-Dollar
Loan shall have an Interest Period determined as set
forth above; and
(d) no Interest Period may end later than the
Termination Date.
(2) with respect to each CD Rate Loan, the period
commencing on the date of such Borrowing and ending 30, 60,
90, or 180 days or, provided the CD Reference Rate Banks
determine that deposits in dollars (in the applicable
amounts) are being offered in the relevant market, 270 or
360 days thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day;
(b) if any Interest Period includes a date on
which a payment of principal of the Loans is required
to be made under Section 2.10 but does not end on such
date, then (i) the principal amount (if any) of each CD
Rate Loan required to be repaid on such date shall have
an Interest Period ending on such date and (ii) the
remainder (if any) of each such CD Rate Loan shall have
an Interest Period determined as set forth above; and
(c) no Interest Period may end later than the
Termination Date.
(3) with respect to each Reference Rate Borrowing, the
period commencing on the date of such Borrowing and ending
30 days thereafter; provided that:
(a) any Interest Period (other than an Interest
Period determined pursuant to clause (b)(i) below)
which would otherwise end on a day which is not a
Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) if any Interest Period includes a date on
which a payment of principal of the Loans is required
to be made under Section 2.10 but does not end on such
date, then (i) the principal amount (if any) of each
Reference Rate Loan required to be repaid on such date
shall have an Interest Period ending on such date and
(ii) the remainder (if any) of each such Reference Rate
Loan shall have an Interest Period determined as set
forth above.
(4) with respect to each Money Market Rate Borrowing,
the period commencing on the date of such Borrowing and
ending such number of days thereafter (but not less than 7
days nor more than 183 days) as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day;
(b) any Interest Period which begins before the
Termination Date and would otherwise end after the
Termination Date shall end on the Termination Date.
"Invitation for Money Market Quotes" has the meaning set
forth in Section 2.03(c).
"Lending Office" means as to any Bank its Domestic Lending
Office or its Euro-Dollar Lending Office or its Money Market
Lending Office, as the context may require.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset (including without limitation any
production payment, advance payment or similar arrangement with
respect to minerals in place) whether or not filed, recorded or
otherwise perfected under applicable law. For the purposes of
this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Reference Rate Loan or a CD Rate Loan or a
Euro-Dollar Loan or a Money Market Loan as the context may
require, and "Loans" means Reference Rate Loans or CD Rate Loans
or Euro-Dollar Loans or Money Market Loans or any combination of
the foregoing, as the context may require.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Mineral Leases" means coal and mineral leases, subleases
and assignments thereof, operating rights with respect thereto,
and shall also include subleases and assignments of operating
rights which the Borrower is obligated to pay under such mineral
leases.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate
of such Bank as it may hereafter designate as its Money Market
Lending Office by notice to the Borrower and the Administrative
Agent.
"Money Market Loan" means a Loan to be made by a Bank
pursuant to Section 2.03.
"Money Market Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit D hereto, evidencing the
obligation of the Borrower to repay the Money Market Loans.
"Money Market Quote" means an offer by a Bank to make a
Money Market Loan in accordance with Section 2.03.
"Money Market Quote Request" has the meaning set forth in
Section 2.03(b).
"Money Market Rate" has the meaning set forth in Section
2.03(d)(ii)(3).
"Money Market Rate Borrowing" is defined in Section 1.03.
"Note" means a Reference Rate Note, a CD Rate Note, a Euro-
Dollar Note or a Money Market Note, as the context may require,
and "Notes" means the Reference Rate Notes, the CD Rate Notes,
the Euro-Dollar Notes or the Money Market Notes, or any
combination of the foregoing, as the context may require.
"Notice of Borrowing" means a Notice of Syndicated Borrowing
(as defined in Section 2.02) or a Notice of Money Market
Borrowing (as defined in Section 2.03(f)).
"Notice of Money Market Borrowing" has the meaning set forth
in Section 2.03(f).
"Notice of Syndicated Borrowing" has the meaning set forth
in Section 2.02.
"Operating Lease" means any lease other than a Mineral Lease
or surface lease, a capital lease or a lease under which the
Borrower or a Subsidiary is lessor.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership,
an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code and is either (i)
maintained by a member of the Controlled Group for employees of a
member of the Controlled Group or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a
member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five
plan years made contributions.
"Principal Shareholders" means Ashland Oil, Inc.,
Saarbergwerke A.G. and Carboex International, Ltd., and any
Subsidiary of any of the foregoing holding, directly or
indirectly, any capital stock of the Borrower.
"Reference Rate" shall mean the rate of interest then most
recently announced by National Westminster Bank PLC in New York
City from time to time as its "prime rate" for calculating
interest on certain loans (which may not be the lowest rate
charged by National Westminster Bank PLC at that time); the
"Reference Rate" hereunder to change simultaneously with any
change in National Westminster Bank PLC's "prime rate".
"Reference Rate Loan" means a Loan to be made by a Bank
pursuant to Section 2.01 as a Reference Rate Loan in accordance
with the applicable Notice of Syndicated Borrowing or pursuant to
Article VIII.
"Reference Rate Notes" means promissory notes of the
Borrower substantially in the form of Exhibit A hereto,
evidencing the obligation of the Borrower to repay the Reference
Rate Loans.
"Refunding Borrowing" means a Syndicated Borrowing which,
after application of the proceeds thereof, results in no net
increase in the outstanding principal amount of Syndicated Loans
made by any Bank.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least
66 2/3% of the aggregate amount of the Commitments or, if the
Commitments shall have been terminated, holding Notes evidencing
at least 66 2/3% of the aggregate unpaid principal amount of the
Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock
(except dividends payable solely in shares of its capital stock)
or (ii) any payment on account of the purchase, redemption,
retirement or acquisition of (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to
acquire shares of the Borrower's capital stock.
"Revolving Credit Period" means the period from and
including the Effective Date to and including the Termination
Date.
"Subsidiary" means any corporation or other entity of which
more than 50% of the securities or other ownership interests
having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions
(irrespective of whether or not at the time securities of any
other class or classes of such corporation or other entity shall
or might have voting power upon the occurrence of any
contingency) are at the time directly or indirectly owned by the
Borrower (or, if such term is used with reference to another
Person, by such other Person).
"Syndicated Borrowing" shall have the meaning set forth in
Section 1.03.
"Syndicated Loan" means a Reference Rate Loan, a CD Rate
Loan or a Euro Dollar Loan made by a Bank pursuant to Section
2.01.
"Termination Date" means November 15, 1999.
"Transferee" has the meaning set forth in Section 9.06(f).
"Unfunded Vested Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the present
value of all vested nonforfeitable benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable
to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with
generally accepted accounting principles in the United States of
America as in effect from time to time, applied on a basis
consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its
consolidated Subsidiaries delivered to the Banks; provided,
however, that such interpretations, determinations and
preparations in respect of postretirement benefits other than
pensions shall be made (and materials prepared) in accordance
with the generally accepted accounting principles in effect
immediately prior to Borrower's adoption of Statement of
Financial Accounting Standards No. 106.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks to be made
to the Borrower pursuant to Article II on a single date and for a
single Interest Period. Borrowings are classified for purposes
of this Agreement either (a) by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a
Borrowing comprised of Euro-Dollar Loans) or (b) by reference to
the provisions of Article II under which participation therein is
determined (e.g., a "Syndicated Borrowing" is a Borrowing under
Section 2.01 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a
Borrowing under Section 2.03 in which the Bank participants are
determined in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Loan Commitments.
During the Revolving Credit Period each Bank severally
agrees, on the terms and conditions set forth in this Agreement,
to lend to the Borrower pursuant to this Section from time to
time amounts such that the aggregate principal amount of
Syndicated Loans by such Bank at any one time outstanding shall
not exceed the amount of its Commitment, provided that in no
event may the aggregate principal amount of Loans exceed the
total Commitments of all the Banks. Each Syndicated Borrowing
under this Section shall be in minimum principal amounts of
$10,000,000, and integral multiples of $1,000,000 over such
amount (except that any such Syndicated Borrowing may be in the
aggregate amount of the unused Commitments). Each Syndicated
Borrowing under this Section shall be made from the several Banks
ratably in proportion to their respective Commitments. Within
the foregoing limits, the Borrower may borrow under this Section,
repay, or to the extent permitted by Section 2.11, prepay Loans
and reborrow at any time during the Revolving Credit Period under
this Section.
SECTION 2.02. Notice of Syndicated Borrowings. The
Borrower shall give the Administrative Agent notice (a "Notice of
Syndicated Borrowing") not later than 11:00 A.M. (New York time)
on (x) the date of each Reference Rate Borrowing and (y) the
second Domestic Business Day before each CD Rate Borrowing and
(z) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(a) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Reference Rate
Borrowing or a CD Rate Borrowing and a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to
be Reference Rate Loans, CD Rate Loans or Euro-Dollar Loans,
and
(d) in the case of CD Rate Borrowing or a Euro-Dollar
Borrowing, the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Syndicated Borrowings pursuant to Section 2.01, the Borrower
may, as set forth in this Section, request the Banks during
the Revolving Credit Period to make offers to make Money
Market Loans to the Borrower. The Banks may, but shall have
no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower
wishes to request offers to make Money Market Loans under
this Section, it shall transmit to the Administrative Agent
by facsimile a Money Market Quote Request substantially in
the form of Exhibit E hereto so as to be received no later
than 11:00 A.M. (New York time) on the Domestic Business Day
next preceding the date of Borrowing proposed therein (or
the third Euro-Dollar Business Day if a margin over London
Interbank Offered Rate is requested), specifying:
(i) whether bids are to be made at an absolute
rate or at a margin over the London Interbank Offered
Rate for any particular Interest Period,
(ii) the proposed date of Borrowing, which shall
be a Domestic Business Day,
(iii) the aggregate amount of such Borrowing,
which shall be a minimum of $10,000,000, and integral
multiples of $1,000,000 over such amount, and
(iv) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period.
The Borrower may request offers to make Money Market
Loans for up to four Interest Periods in a single Money
Market Quote Request. No Money Market Quote Request shall
be given within four Domestic Business Days (or such other
number of days as the Borrower and the Administrative Agent
may agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon
receipt of a Money Market Quote Request, the Administrative
Agent shall send to the Banks by facsimile an Invitation for
Money Market Quotes substantially in the form of Exhibit F
hereto, which shall constitute an invitation by the Borrower
to each Bank to submit Money Market Quotes offering to make
the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes.
(i) Each Bank may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to
any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection
(d) and must be submitted to the Administrative Agent by
telephone, confirmed by facsimile, at its offices specified
in or pursuant to Section 9.01 no later than 10:00 A.M. (New
York time) on the proposed date of Borrowing; provided, that
any Money Market Quote by National Westminster Bank PLC
shall be delivered to the Administrative Agent by 9:45 A.M.
Subject to Articles III and VI, any Money Market Quote so
made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit G hereto and shall in
any case specify:
(1) the proposed date of Borrowing,
(2) the principal amount of the Money Market
Loan for which each such offer is being made,
which principal amount (x) may be greater
than or less than the Commitment of the
quoting Bank, (y) must be $5,000,000 or an
integral multiple of $1,000,000 over such
amount and (z) may not exceed the principal
amount of Money Market Loans for which offers
were requested, nor the total amount of
Commitments,
(3) the rate of interest per annum (rounded
to the nearest 1/100th of 1%) (the "Money
Market Rate") offered for each such Money
Market Loan, and
(4) the identity of the quoting Bank.
A Money Market Quote may set forth up to three separate
offers by the quoting Bank with respect to each Interest
Period specified in the related Invitation for Money Market
Quotes.
(iii) Any Money Market Quote shall be disregarded
that:
(1) is not substantially in the form of
Exhibit G hereto or does not specify all of
the information required by subsection
(d)(ii);
(2) contains qualifying, conditional or
similar language;
(3) proposes terms other than or in addition
to those set forth in the applicable
Invitation for Money Market Quotes; or
(4) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Money
Market Quote submitted by a Bank that is in accordance with
subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such
subsequent inconsistent Money Market Quote shall be
disregarded by the Administrative Agent unless such
subsequent inconsistent Money Market Quote is submitted
solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of
Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and
Money Market Rates so offered and (C) if applicable,
limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market
Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than
10:15 A.M. (New York time) on the proposed date of
Borrowing, the Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of
acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in
part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request,
(ii) the aggregate principal amount of each Money
Market Borrowing must be $10,000,000 or an integral
multiple of $1,000,000 over such amount,
(iii) acceptance of offers may only be made on
the basis of ascending Money Market Rates,
(iv) the Borrower may not accept any offer that
is described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement,
(v) The Borrower may not accept any offer for
Money Market Loans for any Interest Period if such
Interest Period includes the Termination Date but does
not end on such date.
(g) Allocation by Administrative Agent. If offers are
made by two or more Banks with the same Money Market Rates
for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related
Interest Period, the principal amount of Money Market Loans
in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks as
nearly as possible in proportion to the aggregate principal
amount of such offers, rounded to the nearest $1,000,000.
Determinations by the Administrative Agent of the amounts of
Money Market Loans shall be conclusive in the absence of
manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly on the date of receipt
of such notice, notify each Bank of the contents thereof and
of such Bank's share (if any) of such Borrowing and such
Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(b) As soon as practicable, and in any event no later
than 4:00 P.M. (New York time) on the date of Borrowing,
each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of
such Borrowing, in Federal or other funds immediately
available in New York, to the Administrative Agent at its
address specified in or pursuant to Section 9.01. Unless
the Administrative Agent determines that any applicable
condition specified in Article III has not been satisfied,
the Administrative Agent will make the funds so received
from the Banks available to the Borrower at the
Administrative Agent's aforesaid address.
(c) If any Bank makes a new Loan or the Borrower makes
a Refunding Borrowing hereunder, if the new Loan is made on
a day on which the Borrower is to repay all or any part of
an outstanding Loan from such Bank, such Bank shall apply
the proceeds of its new Loan to make such repayment and only
the amount equal to the difference (if any) between the
amount being borrowed and the amount being repaid shall be
made available by such Bank to the Administrative Agent as
provided in subsection (b), or remitted by the Borrower to
the Administrative Agent as provided in Section 2.12 as the
case may be and, in the case of a Refunding Borrowing, the
proceeds of such Borrowing shall be deemed to reduce the
principal amount of outstanding Syndicated Loans and shall
not be made available to the Administrative Agent.
(d) With respect to any Borrowing, the Administrative
Agent may (but shall not be obligated to) assume that each
Bank has made its share thereof available to the
Administrative Agent on the date of that Borrowing and, in
reliance on such assumption, the Administrative Agent may
make available to the Borrower a corresponding amount. If
such amount is made available by such Bank to the
Administrative Agent after 4:00 P.M. (New York time) on the
date of such Borrowing, such Bank shall pay to the
Administrative Agent on demand interest on such amount at
the Federal Funds Rate.
SECTION 2.05. Notes.
(a) The Reference Rate Loans of each Bank shall be
evidenced by a single Reference Rate Note payable to the
order of such Bank for the account of its Domestic Lending
Office in an amount equal to the lesser of such Bank's
Commitment or the aggregate unpaid principal amount of such
Bank's Reference Rate Loans.
(b) The CD Rate Loans of each Bank shall be evidenced
by a single CD Rate Note payable to the order of such Bank
for the account of its Domestic Lending Office in an amount
equal to the lesser of such Bank's Commitment or the
aggregate unpaid principal amount of such Bank's CD Rate
Loans.
(c) The Euro-Dollar Loans of each Bank shall be
evidenced by a single Euro-Dollar Note payable to the order
of such Bank for the account of its Euro-Dollar Lending
Office in an amount equal to the lesser of such Bank's
Commitment or the aggregate unpaid principal amount of such
Bank's Euro-Dollar Loans.
(d) The Money Market Loans of each Bank shall be
evidenced by a single Money Market Note payable to the order
of such Bank for the account of its Money Market Lending
Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Money Market Loans.
(e) Upon receipt of each Bank's Notes pursuant to
Section 3.02(a), the Administrative Agent shall mail such
Notes to such Bank. Each Bank shall record, and prior to
any transfer of its Notes shall endorse on the schedules
forming a part thereof appropriate notations to evidence,
the date, amount and maturity of each Loan made by it and
the date and amount of each payment of principal made by the
Borrower with respect thereto; provided that the failure of
any Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized
by the Borrower so to endorse its Notes and to attach to and
make a part of any Note a continuation of any such schedule
as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in
any Borrowing shall mature, and the principal amount thereof
shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing; provided, that, in the case of a
Refunding Borrowing and in the absence of a Default, any Loan
maturity that would otherwise occur hereunder shall be deemed not
to have occurred and the Borrower will not be required to repay
any of the principal amount thereof.
SECTION 2.07. Interest Rates.
(a) Each Reference Rate Loan shall bear interest on
the outstanding principal amount thereof, for each day from
the date such Loan is made until it becomes due, at a rate
per annum equal to the Alternate Reference Rate. Such
interest shall be payable for each Interest Period on the
last day thereof. Any overdue principal of and, to the
extent permitted by law, overdue interest on any Reference
Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1%
plus the otherwise applicable rate for such day.
(b) Each CD Rate Loan shall bear interest on the
outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
sum of the Applicable Margin plus the applicable Adjusted CD
Rate. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period
is longer than three months, at intervals of three months
after the first day thereof. Any overdue principal of and,
to the extent permitted by law, overdue interest on any CD
Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1%
plus the Alternative Reference Rate.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum equal to the sum of (x)
the quotient obtained (rounded upwards, if necessary,
to the next higher 1/100 of 1%) by dividing (i) the
applicable CD Rate by (ii) 1.00 minus the CD Reserve
Requirement and (y) the Assessment Rate.
The "CD Rate" applicable to any Interest Period
means the rate of interest determined by the
Administrative Agent to be the average (rounded
upwards, if necessary, to the nearest 1/16 of 1%) of
the prevailing rates per annum bid at 10:00 a.m., New
York time (or as soon thereafter as practicable), on
the first day of such Interest Period by two or more
certificate of deposit dealers of recognized standing
located in New York for the purchase at face value from
each CD Reference Rate Bank of its certificates of
deposit in an amount approximately equal to the CD Rate
Loan being made or maintained by each such CD Reference
Rate Bank to which such Interest Period applies and
having a maturity approximately equal to such Interest
Period.
The "CD Reserve Requirement" means, relative to
any Interest Period for CD Rate Loans, a percentage
(expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic,
supplemental, marginal and other reserves and taking
into account any transitional adjustments or other
scheduled changes in reserve requirements), specified
under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any
successor) and then applicable to the class of banks of
which the Administrative Agent is a member, on deposits
of the type used as a reference in determining the CD
Rate and having a maturity approximately equal to such
Interest Period. The Adjusted CD Rate shall be
adjusted automatically on and as of the effective date
of any change in the CD Reserve Requirement.
The "Assessment Rate" means, for any Interest
Period for CD Rate Loans, the net annual assessment
rate (rounded upwards, if necessary, to the next higher
1/100 of 1%) estimated by the Administrative Agent to
be the then current annual assessment payable by banks
similar to the CD Reference Rate Banks to the Federal
Deposit Insurance Corporation (or any successor) for
insuring time deposits at offices of the Administrative
Agent in the United States.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest
Period applicable thereto, at a Rate per annum equal to the
sum of the Applicable Margin plus the applicable Adjusted
Euro-Dollar Rate. Such interest shall be payable for each
Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of
three months after the first day thereof.
The "Adjusted Euro-Dollar Rate" applicable to any
Interest Period means a rate per annum equal to the
quotient obtained (rounded upwards, if necessary, to
the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward,
if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars
are offered to the Euro-Dollar Reference Rate Banks in
the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount
approximately equal to the principal amount of the
Euro-Dollar Loan being made or maintained by each such
Euro-Dollar Reference Rate Bank to which such Interest
Period applies and having a maturity approximately
equal to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve
System. The Adjusted Euro-Dollar Rate shall be
adjusted automatically on and as of the effective date
of any change in the Euro-Dollar Reserve Percentage.
Any overdue principal of and, to the extent
permitted by law, overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each
day from and including the date payment thereof was due
to but excluding the date of actual payment, at a rate
per annum equal to the sum of 1% plus the Applicable
Margin plus the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100 of 1%) by dividing
(i) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per
annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then
for such other period of time not longer than three
months as the Administrative Agent may elect) deposits
in dollars in an amount approximately equal to such
overdue payment due to National Westminster Bank PLC
are offered to the Euro-Dollar Reference Rate Banks in
the London interbank market for the applicable period
determined as provided above by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the
circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum
of 1% plus the rate applicable to Reference Rate Loans
for such day).
(d) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
Money Market Rate quoted by the Bank making such Loan in
accordance with Section 2.04. Such interest shall be
payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any
overdue principal of and, to the extent permitted by law,
overdue interest on any Money Market Loan shall bear
interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 1% plus the Reference
Rate for such day.
(e) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The
Administrative Agent shall give prompt notice to the
Borrower and the participating Banks by facsimile, telex or
cable of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of
manifest error.
SECTION 2.08. Fees.
(a) Facility Fees. From the Effective Date until the
Termination Date, the Borrower shall pay to the
Administrative Agent for the account of the Banks ratably in
proportion to their outstanding Commitments, facility fees
for each calendar quarter or part thereof in arrears at the
Applicable Facility Fee Rate per annum on the daily average
amount of the Commitments without regard to usage for such
calendar quarter or part thereof.
(b) Payments of Facility Fees. Accrued facility fees
pursuant to Section 2.08(a) shall be payable quarterly in
arrears on each March 31, June 30, September 30 and December
31 and upon the Termination Date or, if earlier, the date of
termination of the Commitments in their entirety.
SECTION 2.09. Optional Termination or Reduction of
Commitments. During the Revolving Credit Period, the Borrower
may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments at any time,
if no Loans are outstanding at such time, or (ii) ratably reduce
from time to time by an aggregate amount of $25,000,000 or any
larger multiple thereof, the aggregate amount of the Commitments
in excess of the aggregate outstanding principal amount of the
Loans.
SECTION 2.10. Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date and all Loans
then outstanding (together with accrued interest thereon) shall be
due and payable on such date.
SECTION 2.11. Optional Prepayments.
(a) The Borrower may, upon at least one Domestic
Business Day's notice to the Administrative Agent, prepay any
Reference Rate Borrowing (or any Money Market Borrowing
bearing interest at the Reference Rate pursuant to Section
8.01) in whole at any time, or from time to time in part in
amounts aggregating $1,000,000 or any larger multiple
thereof, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied
to prepay ratably the Loans of the several Banks included in
such Borrowing.
(b) Subject to the provisions of Section 2.13, the
Borrower may prepay in whole (but not in part) the principal
amount of, together with accrued interest thereon to the date
of prepayment, any Fixed Rate Loan (excluding Money Market
Loans) prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to
this Section, the Administrative Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments. The
Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 1:00 P.M. (New
York time) on the date when due, in Federal or other funds
immediately available in New York, to the Administrative Agent at
its address referred to in Section 9.01. The Administrative Agent
will promptly distribute to each Bank its ratable share of each
such payment received by the Administrative Agent for the account
of the Banks. Whenever any payment of principal of, or interest
on, the Reference Rate Loans, the CD Rate Loans, the Money Market
Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to
the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans shall be
due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-
Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-dollar Business Day. If the date
for any payment of principal is extended by operation of law or
otherwise, interestthereon shall bepayable for such extended time.
SECTION 2.13. Funding Losses. If the Borrower makes any
payment of principal with respect to any Fixed Rate Loan (pursuant
to Article II, VI or VIII or otherwise) on any day other than the
last day of the Interest Period applicable thereto, or if the
Borrower fails to borrow any Fixed Rate Loans after notice has
been given to any Bank in accordance with Section 2.04(a), the
Borrower shall reimburse each Bank on demand for any resulting
loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period
after any such payment or failure to borrow, provided that such
Bank shall have delivered to the Borrower a certificate as to the
amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest
based on the Alternate Reference Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap year)
and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
The obligation of any Bank to make a Loan or to permit a
Refunding Borrowing on the occasion of any Borrowing is subject to
the satisfaction of the following conditions:
SECTION 3.01. All Borrowings. In the case of each
Borrowing:
(a) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as the case
may be;
(b) the fact that, immediately after such Borrowing,
the aggregate outstanding principal amount of the Loans will
not exceed the aggregate amount of the Commitments;
(c) the fact that, immediately after such Borrowing, no
Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of
the Borrower contained in this Agreement (except, in the case
of a Refunding Borrowing, the representation and warranty set
forth in Section 4.05(b) as to any material adverse change
which has theretofore been disclosed in writing by the
Borrower to the Banks) shall be true in all material respects
on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation
and warranty by the Borrower on the date of such Borrowing as to
the facts specified in clauses (b), (c) and (d) of this Section.
SECTION 3.02. First Borrowing. In the case of the first
Borrowing:
(a) receipt by the Administrative Agent for the account
of each Bank of a duly executed Reference Rate Note, CD Rate
Note, Euro-Dollar Note and Money Market Note, each dated on
or before the date of such Borrowing, complying with the
provisions of Section 2.05;
(b) concurrently with the funding of the first
Borrowing, receipt by the Administrative Agent for the
account of each Bank party to the Existing Credit Agreement
of funds from the Borrower repaying or paying any and all
amounts outstanding as Existing Loans or otherwise under the
Existing Credit Agreement;
(c) concurrently with the funding of the first
Borrowing, receipt by the Administrative Agent of
satisfactory documentary evidence cancelling the Commitments
of the Banks (as defined in the Existing Credit Agreement)
under or pursuant to the Existing Credit Agreement;
(d) receipt by the Administrative Agent of an opinion
of counsel to the Borrower, substantially in the form of
Exhibits H(1) and H(2) hereto and covering such additional
matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(e) receipt by the Administrative Agent of an opinion
of Mayer, Brown & Platt, special counsel for the
Administrative Agent, substantially in the form of Exhibit I
hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may
reasonably request;
(f) receipt by the Administrative Agent of a
certificate signed by the chief financial officer and either
the president or any vice president of the Borrower, to the
effect set forth in clauses (c) and (d) of Section 3.01;
(g) receipt by the Administrative Agent of all
documents it may reasonably request relating to the existence
of the Borrower, the corporate authority for and the validity
of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to
the Administrative Agent; and
(h) concurrently with the funding of the first
Borrowing, receipt by the Administrative Agent of all fees
required to be paid by Borrower hereunder;
The certificate and opinions referred to in clauses (d), (e), (f)
and (g) above shall be dated no more than three Domestic Business
Days before the date of the first Borrowing.
SECTION 3.03. Return of Existing Notes. The Administrative
Agent shall use its best efforts to secure from each bank party to
the Existing Credit Agreement the delivery of the "Existing Notes
of that bank marked "cancelled" or "paid", and the Administrative
Agent shall deliver such Existing Notes to the Borrower as soon as
possible after the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that as of the Effective
Date:
SECTION 4.01. Corporate Existence and Power. The Borrower
is a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware, and has all corporate powers
and all material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding
upon the Borrower or result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower and the Notes, when
executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of the Borrower.
SECTION 4.04. Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance by the Borrower of this Agreement, the Notes or any
other instrument or writing furnished in connection herewith to
which it is a party.
SECTION 4.05. Financial Information.
(a) The audited consolidated balance sheet of the
Borrower and its Subsidiaries as of December 31, 1993 and the
related consolidated statements of income, stockholders'
equity and cash flows for the fiscal year then ended,
reported on by Ernst & Young, and the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of June
30, 1994, and the related unaudited consolidated statements
of income and cash flows for the 6 months then ended, as
certified by the chief financial officer or the chief
accounting officer of the Borrower, fairly present, in
conformity with generally accepted accounting principles, the
consolidated financial position of the Borrower and its
Subsidiaries as of such date and their consolidated results
of operations and cash flows for such fiscal periods.
(b) Since December 31, 1993, there has been no material
adverse change in the business, operations, prospects or
condition, financial or otherwise, of the Borrower and its
consolidated Subsidiaries, considered as a whole.
SECTION 4.06. Litigation. Except as has been disclosed to
the Banks in Item 3 of Schedule K hereto, there is no action,
suit, investigation or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the
Borrower or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official the probable outcome
of which could materially adversely affect the business,
consolidated financial position, properties or operations of the
Borrower and its Subsidiaries taken as a whole or which in any
manner draws into question the validity of this Agreement or the
Notes.
SECTION 4.07. Compliance with ERISA. Except as disclosed in
Item 6 of Schedule K hereto, each member of the Controlled Group
has fulfilled its obligations under the minimum funding standards
of ERISA and the Code with respect to each Plan and is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any
material liability to the PBGC or a Plan under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007
of ERISA.
SECTION 4.08. Taxes. United States Federal income tax
returns of the Borrower and its Subsidiaries have been examined
and closed through the taxable year ended December 31, 1990. The
Borrower and its Subsidiaries have filed all United States Federal
income tax returns and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by the
Borrower or any Subsidiary except for tax assessments being
contested in good faith in appropriate proceedings or directly
with taxing authorities and for which adequate reserves have been
established. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower,
adequate.
SECTION 4.09. Subsidiaries. Each of the Borrower's
corporate Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction
of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The names,
jurisdictions of incorporation, ownership information and business
descriptions of all of the Borrower's existing Subsidiaries are as
set forth in Item 2 of Schedule K hereto.
SECTION 4.10. Full Disclosure. All information heretofore
furnished by or on behalf of the Borrower to the Administrative
Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby (including
without limitation the information set forth in Schedule K hereto)
is, and all such information hereafter furnished by the Borrower
to the Administrative Agent or any Bank will be, true, accurate
and complete in every material respect or based on reasonable
estimates on the date as of which such information is stated or
certified.
SECTION 4.11. Lease Payments. As of the date this Agreement
becomes effective pursuant to Section 9.10, the aggregate amount
of minimum lease payments that the Borrower and its Subsidiaries
have incurred or assumed under Operating Leases does not exceed
$50,000,000.
SECTION 4.12. Environmental Matters. Except as disclosed in
Item 7 of Schedule K hereto, neither the Borrower nor any
Subsidiary is in violation of any environmental law of any
Federal, state or local governmental authority or has incurred or
reasonably expects to incur any liability to reimburse or to pay
any penalty to any Federal, state or local governmental authority
for the costs of any environmental clean-up, which violation or
liability, if incurred, would have a material adverse effect on
the financial condition or results of operations of the Borrower
and its Subsidiaries taken as a whole.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains
unpaid:
SECTION 5.01. Information. The Borrower will deliver to
each of the Banks:
(a) as soon as available and in any event within
90 days after the end of each fiscal year of the Borrower, an
audited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income, stockholders'
equity and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous
fiscal year, all reported on in a manner acceptable to the
Securities and Exchange Commission by Ernst & Young or other
independent public accountants of nationally recognized
standing, and unaudited financial statements for each of the
Borrower's operating Subsidiaries designated by the
Administrative Agent and Required Banks specifically
including Dal-Tex Coal Corporation, Coal-Mac, Inc., Hobet
Mining, Inc., and Mingo Logan Coal Company;
(b) as soon as available and in any event within 45
days after the end of each of the first three quarters of
each fiscal year of the Borrower, a consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of
such quarter and the related consolidated statements of
income, stockholders' equity and cash flows for such quarter
and for the portion of the Borrower's fiscal year ended at
the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter
and the corresponding portion of the Borrower's previous
fiscal year (deliveries of the Borrower's reports on Form 10-
Q shall satisfy the preceding requirements of this
subsection), and unaudited financial statements for each of
the Borrower's operating Subsidiaries designated by the
Administrative Agent and Required Banks specifically
including Dal-Tex Coal Corporation, Coal-Mac, Inc., Hobet
Mining, Inc., and Mingo Logan Coal Company, all certified
(subject to normal year-end audit adjustments) as to fairness
of presentation, generally accepted accounting principles and
consistency by the chief financial officer or the chief
accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b)
above, a certificate of the chief financial officer or the
chief accounting officer of the Borrower (i) setting forth in
reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements
of Sections 5.07 to 5.10 and 5.15, inclusive, on the date of
such financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and
the action which the Borrower is taking or proposes to take
with respect thereto;
(d) as soon as possible after the occurrence of each
Default continuing on the date of such statement, a
certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the details
thereof and the information then available as to the action
which the Borrower is taking or proposes to take with respect
thereto;
(e) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so mailed;
(f) promptly upon the filing thereof, and to the extent
not provided pursuant to clause (a) or (b) above, copies of
all registration statements (other than the exhibits thereto
and any registration statements on Form S-8 or its
equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy
of the notice of such reportable event given or required to
be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA, a copy
of such notice; or (iii) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate or appoint a
trustee to administer any Plan, a copy of such notice;
(h) as soon as available and in any event within 45
days after each March 31, June 30, September 30 and
December 31, from and including September 30, 1994 through
the Termination Date, a certificate of the chief financial
officer or the chief accounting officer of the Borrower
setting forth the information necessary to calculate the
Applicable Margin and the Applicable Facility Fee Rate; and
(i) from time to time such additional information
regarding the financial position or business of the Borrower
as the Administrative Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay
and discharge, and will cause each Subsidiary to pay and
discharge, at or before maturity, all their respective material
obligations and liabilities, including, without limitation, tax
liabilities, except where the same may be contested in good faith
by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted
accounting principles, appropriate book accruals for any of the
same.
SECTION 5.03. Maintenance of Property; Insurance. The
Borrower will keep, and will cause each Subsidiary to keep, all
property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted, except to
the extent that failure to do so would not have a material adverse
effect on the operations of the Borrower and its Subsidiaries,
considered as a whole, and except in the case of property no
longer economically useful in the conduct of the Borrower's
business; will maintain and will cause each Subsidiary to maintain
with insurers of recognized responsibility, insurance on all their
respective properties in at least such amounts and against at
least such risks as are usually insured against in the same
general area by companies of established repute engaged in the
same or a similar business; and will furnish, and will cause each
Subsidiary to furnish, to any Bank, upon written request, a
certificate as to the insurance carried. Subject to the
foregoing, the Borrower may maintain, and may cause each
Subsidiary to maintain, the insurance described in this Section
under the blanket insurance policies of Ashland Oil, Inc.
containing deductibles negotiated by Ashland Oil, Inc. in such
blanket insurance policies.
SECTION 5.04. Conduct of Business and Maintenance of
Existence. The Borrower will preserve, renew and keep in full
force and effect, and will cause each Subsidiary, to the extent
the Borrower reasonably deems necessary in the normal conduct of
business, to preserve, renew and keep in full force and effect
their respective corporate existence and their respective rights,
privileges and franchises material to the Borrower's business.
SECTION 5.05. Compliance with Laws. The Borrower will
comply, and cause each Subsidiary to comply, in all material
respects with all applicable laws, ordinances, rules, regulations,
and requirements of governmental authorities, noncompliance with
which would materially adversely affect the business or credit of
the Borrower or the Subsidiary (including, without limitation,
ERISA and the rules and regulations thereunder and all applicable
environmental regulations) except where the necessity of
compliance therewith is contested in good faith by appropriate
proceedings.
SECTION 5.06. Inspection of Property, Books and Records.
The Borrower will keep, and will cause each Subsidiary to keep,
proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation
to its business and activities; and will permit, and will cause
each Subsidiary to permit, upon reasonable notice, representatives
of any Bank at such Bank's expense to visit and inspect any of
their respective properties, to examine and make abstracts from
any of their respective books and records. The Banks acknowledge
that certain of the properties of the Borrower and its
Subsidiaries where mining and related operations are carried on
are inherently dangerous workplaces and any inspection of these
properties shall be at the sole risk of the Bank or Banks
conducting such inspection. Any such inspection shall be
conditioned upon the execution by the persons making such
inspection of a release to the foregoing effect. Should the Banks
wish to discuss the affairs, finances and accounts of the Borrower
and its Subsidiaries with their respective officers (other than
financial officers), employees and independent public accountants,
the Administrative Agent shall contact the Borrower's chief
financial officer who shall make such persons available for
discussions with the Banks, which shall be held in the presence of
an officer of the Borrower, if the Borrower so requests.
SECTION 5.07. Debt Limitation. The ratio of (x)
Consolidated Debt of the Borrower to (y) the sum of Consolidated
Debt and Consolidated Net Worth will at no time be greater than
60%.
SECTION 5.08. Minimum Consolidated Net Worth. Consolidated
Net Worth will not at any time be less than $285,000,000.
SECTION 5.09. Restricted Payments. Neither the Borrower nor
any Subsidiary will declare or make any Restricted Payment unless,
after giving effect thereto (i) the aggregate of all Restricted
Payments declared or made subsequent to November 15, 1994 does not
exceed the sum of (x) $49,000,000 plus (y) 50% (or minus 50% in
the case of a deficit) of Consolidated Adjusted Net Income
Available for Distributions accumulated after January 1, 1994 and
(ii) no Default shall have occurred and be continuing. Nothing in
this Section shall prohibit the payment of any dividend or
distribution within 60 days after the declaration thereof if such
declaration was not prohibited by this Section.
SECTION 5.10. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any
asset (including stock issued by any subsidiary and owned by the
Borrower or any Subsidiary) now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement
securing guaranty obligations relating to Dominion Terminal
Associates in an aggregate principal amount not exceeding
$24,000,000;
(b) Liens securing ad valorem taxes not yet delinquent;
(c) Liens securing taxes, assessments or governmental
charges or the claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons,
provided the payment thereof is at the time being contested
in good faith and by appropriate proceedings, and provided
further that adequate book reserves have been established
with respect thereto, and provided further that the owing
company's title to, and its right to use, its property is not
materially adversely affected thereby. In the case of any
item of the foregoing description involving in excess of
$1,000,000, the appropriateness of the proceedings shall be
supported by an opinion of the counsel responsible for such
proceedings and the adequacy of such reserves shall be
supported by the opinion of the independent accountants of
the contesting company;
(d) Liens incurred or deposits made in the ordinary
course of business (i) in connection with workmen's
compensation, unemployment insurance, social security and
other like laws, or (ii) to secure the performance of letters
of credit, bids, tenders, sales contracts, leases, statutory
obligations, surety, appeal and performance bonds and other
similar obligations not incurred in connection with the
borrowing of money, the obtaining of advances or the payment
of the deferred purchase price of property;
(e) Attachment, judgment and other similar Liens
arising in connection with court proceedings, provided the
execution or other enforcement of such Liens is effectively
stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(f) Liens on property of a Subsidiary securing only
obligations owing to the Borrower or another Subsidiary;
(g) Reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions, leases
and other similar title exceptions or encumbrances affecting
real property, provided they do not in the aggregate
materially detract from the value of said properties or
materially interfere with their use in the ordinary conduct
of the owing company's business;
(h) Any Lien existing on any property of any
corporation at the time it becomes a Subsidiary, or existing
prior to the time of acquisition upon any property acquired
by the Borrower or any Subsidiary through purchase, merger or
consolidation or otherwise, whether or not assumed by the
Borrower or such Subsidiary, or placed upon property (x)
within 90 days of the date such property is placed in service
if such property constitutes equipment or facilities, or (y)
within 90 days of acquisition thereof by the Borrower or any
Subsidiary in the case of all other property, to secure all
or a portion of (or to secure indebtedness incurred to pay
all or a portion of) the purchase price thereof, provided
that any such Lien shall not encumber any other property of
the Borrower or such Subsidiary;
(i) Any Lien renewing, extending or refunding any Lien
permitted by clause (h) above, provided that the principal
amount secured is not increased, the Lien is not extended to
other property, and at the time of, and immediately after
giving effect to, any such renewal, extension or refunding,
the Borrower and its Subsidiaries would be permitted by the
provisions of Section 5.07 to incur at least $1.00 of
additional Consolidated Debt; and
(j) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt in an aggregate
principal amount at any time outstanding not to exceed the
greater of (i) 5% of Consolidated Net Worth and (ii)
$20,000,000.
SECTION 5.11. Consolidations, Mergers and Sales of Assets.
The Borrower will not (i) consolidate or merge with or into any
other Person or (ii) sell, lease or otherwise transfer all or any
substantial part of the assets of the Borrower and its
Subsidiaries, taken as a whole, to any other Person; provided that
the Borrower may merge with another Person if (A) the corporation
surviving such merger is organized under the laws of the United
States of America or a state thereof and, if the Borrower is not
the surviving corporation, the surviving corporation expressly
assumes the obligations of the Borrower hereunder and under the
Notes by an instrument satisfactory in form and substance to the
Required Banks, such approval not to be unreasonably withheld, and
(B) before and immediately after giving effect to such merger, no
Default shall have occurred and be continuing.
SECTION 5.12. Use of Proceeds. The proceeds of the Loans
made under this Agreement will be used by the Borrower for the
repayment of the Existing Notes and for its general corporate
purposes, including without limitation, acquisitions. None of
such proceeds will be used in violation of any applicable law or
regulation, including, without limitation, Regulation U or any
other margin regulation of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
SECTION 5.13. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, enter into any
transaction, including without limitation, the purchase, sale or
exchange of property or the rendering of any service, with any
Affiliate except as under Section 5.11 or in the ordinary course
of and pursuant to the reasonable requirements of the Borrower's
or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than would
obtain in a comparable arms's length transaction with a Person not
an Affiliate.
SECTION 5.14. Subsidiary Debt. The Borrower will not permit
any Subsidiary to incur or permit to exist, any Debt, except
(i) Debt hereafter incurred in connection with the
liens permitted by Section 5.10,
(ii) Debt of the Subsidiaries to each other or the
Borrower,
(iii) other Debt of the Subsidiaries not in excess of
that listed and outstanding or available as of the
date of this Agreement and listed in Item 4 of
Schedule K hereto as being debt of the Borrower or
of a Subsidiary.
SECTION 5.15. EBITDAR RATIO. The EBITDAR Ratio will not at
any time be less than 3 to 1.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Borrower shall fail to pay when due any
principal of or interest on any Loan, any fees or any other
amount payable hereunder;
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.07, 5.09,5.10, 5.11, 5.12,
5.13, 5.14 or 5.15;
(c) the Borrower shall fail to observe or perform the
covenant contained in Section 5.08 for 30 days after an
officer of the Borrower obtains knowledge of such failure;
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than
those covered by clause (a), (b) or (c) above) for 30 days
after written notice thereof has been given to the Borrower
by the Administrative Agent at the request of any Bank;
(e) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(f) the Borrower or any Subsidiary shall fail to make
any payment in respect of any Debt (other than the Notes) in
an aggregate outstanding principal amount exceeding
$10,000,000 when due or within any applicable grace period;
(g) any event or condition shall occur which results in
the acceleration of the maturity of any Debt of the Borrower
or any Subsidiary in an aggregate principal amount exceeding
$10,000,000 or enables the holder of such Debt or any Person
acting on such holder's behalf to accelerate the maturity
thereof;
(h) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking
liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or
an order for relief shall be entered against the Borrower or
any Subsidiary under the Federal bankruptcy laws as now or
hereafter in effect;
(j) any member of the Controlled Group shall fail to
pay when due an amount or amounts aggregating in excess of
$1,000,000 which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans having aggregate Unfunded
Vested Liabilities in excess of $1,000,000 (collectively, a
"Material Plan") shall be filed under Title IV of ERISA by
any member of the Controlled Group, any plan administrator or
any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any Material Plan or
a proceeding shall be instituted by a fiduciary of any
Material Plan against any member of the Controlled Group to
enforce Section 515 or 4219(c)(5) of ERISA; or a condition
shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated;
(k) a final and unappealable judgment or order for the
payment of money in excess of $5,000,000 shall be rendered
against the Borrower or any Subsidiary and such judgment or
order shall continue unsatisfied and unstayed for a period of
10 days; or
(l) the termination as a result of breach of Hedging
Obligations of the Borrower or any Subsidiary which require
as a consequence of such breach the payment by the Borrower
or any Subsidiary of more than $10,000,000 in the aggregate;
then and in every such event, the Administrative Agent shall (i)
if requested by the Required Banks, by notice to the Borrower
terminate all the Commitments and they shall thereupon terminate,
and (ii) if requested by Banks holding Notes evidencing more than
66 2/3% in aggregate principal amount of the Loans, by notice to
the Borrower declare the Notes (together with accrued interest
thereon) to be, and the Notes shall thereupon become, immediately
due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of
Default specified in clause (h) or (i) above with respect to the
Borrower, without any notice to the Borrower or any other act by
the Administrative Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued interest
thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent
shall give notice to the Borrower under Section 6.01(d) promptly
upon being requested to do so by any Bank and shall thereupon
notify all the Banks thereof.
SECTION 6.03. Limitation on Remedies. With respect to any
breach or violation of any covenant contained in Sections 5.02
through 5.15 inclusive, the Banks are limited to the remedies set
forth in Section 6.01.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE AGENTS
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated to the
Administrative Agent by the terms hereof or thereof, together with
all such powers as are reasonably incidental thereto.
SECTION 7.02. Administrative Agent and Affiliates. National
Westminster Bank PLC shall have the same rights and powers under
this Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not the Administrative
Agent, and National Westminster Bank PLC and its affiliates may
accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate
of the Borrower as if it were not the Administrative Agent
hereunder.
SECTION 7.03. Action by Administrative Agent or Agents. The
obligations of the Administrative Agent or the Agents hereunder
are only those expressly set forth herein. Without limiting the
generality of the foregoing, neither the Administrative Agent nor
the Agents shall be required to take any action with respect to
any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Administrative
Agent may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Administrative Agent or Agents.
None of the Administrative Agent, any of the Agents nor any of
their directors, officers, agents, or employees shall be liable
for any action taken or not taken by any of them in connection
herewith (i) with the consent or at the request of the Required
Banks or (ii) in the absence of any of their own gross negligence
or willful misconduct. None of the Administrative Agent, any of
the Agents nor any of their directors, officers, agents or
employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any
Borrowing hereunder; (ii) the performance or observance of any of
the covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article III, except
receipt of items required to be delivered to the Administrative
Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished
in connection herewith. The Administrative Agent shall not incur
any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a Bank
wire, telex or similar writing) believed by it to be genuine or to
be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Administrative Agent
and each of the Agents (to the extent not reimbursed by the
Borrower) against any cost, expense (including the Administrative
Agent's counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from the Administrative
Agent's or such Agent's gross negligence or willful misconduct)
that the Administrative Agent or such Agent may suffer or incur in
connection with this Agreement or any action taken or omitted by
the Administrative Agent or such Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Administrative
Agent, any Agent or any other Bank, and based on such documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance
upon the Administrative Agent, any Agent or any other Bank, and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under this Agreement.
SECTION 7.08. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Banks and the Borrower. Upon any such
resignation, Bank of America Illinois or, if so designated by Bank
of America Illinois, Bank of America NT & SA shall automatically
become successor Administrative Agent; provided, that if (i) the
Borrower objects to Bank of America Illinois's (or, in case of
such designation by Bank of America Illinois as referred to above,
Bank of America NT & SA's) succession as Administrative Agent in a
writing delivered to all of the Banks, or (ii) Bank of America
Illinois (or, in case of such designation by Bank of America
Illinois as referred to above, Bank of America NT & SA) declines
its automatic succession in a writing delivered to all of the
Banks, then the Required Banks shall appoint another Bank or
commercial banking institution as a successor Administrative Agent
which shall thereupon become the Administrative Agent hereunder;
provided, however, that if any commercial banking institution is
not a party to this Agreement, such commercial banking institution
shall not become the Administrative Agent hereunder without the
prior consent of the Borrower, which consent shall not be
unreasonably withheld. If no successor Administrative Agent shall
have been so appointed by the Required Banks and approved by the
Borrower, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf
of the Banks, appoint a successor Administrative Agent, which
shall be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the
provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Administrative Agent.
SECTION 7.09. Administrative Agent's and Agents' Fees. The
Borrower shall pay to the Administrative Agent for its own account
fees in the amounts and at the times previously agreed upon
between the Borrower and the Administrative Agent pursuant to a
fee agreement letter dated October 18, 1994, from the
Administrative Agent to the Borrower, as amended. Pursuant to
that October 18, 1994 letter, on the Closing Date, the Borrower
shall pay to the Administrative Agent for the account of the
Agents an arrangement fee as specified in said letter.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If prior to 10:00 A.M. New York time on the first day
of any Interest Period for any Fixed Rate Loan:
(a) deposits in dollars (in the applicable amounts) are
not being offered to any of the CD Rate Reference Banks or
the Euro-Dollar Reference Banks in the relevant market for
such Interest Period, or
(b) in the case of a CD Rate Loan or Euro-Dollar Loan,
as the case may be, the Required Banks advise the
Administrative Agent that (i) the Adjusted CD Rate as
determined by the Administrative Agent will not adequately
and fairly reflect the cost to such Banks of funding their CD
Rate Loans for such Interest Period, or (ii) that the
Adjusted Euro-Dollar Rate as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such
Banks of funding their Euro-Dollar Loans for such Interest
Period,
the Administrative Agent shall forthwith give notice thereof by
10:00 A.M. New York time to the Borrower and the Banks, whereupon
until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make CD Rate Loans, if such
circumstances affect the ability to make CD Rate Loans, or Euro-
Dollar Loans, if such circumstances affect the ability to make
Euro-Dollar Loans, shall be suspended. Unless the Borrower
notifies the Administrative Agent by 12:00 P.M. New York time on
the date of any Fixed Rate Loans for which a Notice of Borrowing
has previously been given that it elects not to borrow on such
date, (i) if such Fixed Rate Loans are CD Rate Loans or Euro-
Dollar Loans, as the case may be, such Loans shall instead be made
as a Reference Rate Borrowing and (ii) if such Fixed Rate Loans
are Money Market Loans, such Money Market Loans shall bear
interest for each day from and including the first day to but
excluding the last day of the Interest Period applicable thereto
at the Alternate Reference Rate. The conditions to Borrowing set
forth in Section 3.01(a) shall not apply to the Reference Rate
Borrowing referred to in (i) or the Alternate Reference Rate
Borrowing referred to in (ii).
SECTION 8.02. Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank
or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-
Dollar Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank
or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund
its CD Rate Loans or its Euro-Dollar Loans and such Bank shall so
notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make CD
Rate Loans, if such circumstances affect the ability to make CD
Rate Loans, or Euro-Dollar Loans, if such circumstances affect the
ability to make Euro-Dollar Loans, shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Lending Office or a
different Euro-Dollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank.
If such Bank shall determine that it may not lawfully continue to
maintain and fund in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such
affected CD Rate Loan or Euro-Dollar Loan, together with accrued
interest thereon. Concurrently with prepaying each such affected
CD Rate Loan or Euro-Dollar Loan, the Borrower shall borrow a
Reference Rate Loan in an equal principal amount from such Bank
(on which interest and principal shall be payable
contemporaneously with the related CD Rate Loans or Euro-Dollar
Loans of the other Banks), and such Bank shall make such a
Reference Rate Loan. In such event, the conditions to Borrowing
set forth in Section 3.01(a) shall not apply to such Reference
Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of
any Syndicated Loan or any obligation to make Syndicated
Loans or (y) the date of the related Money Market Quote, in
the case of any Money Market Loan, the adoption of any
applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by any Bank (or its Lending office) with any
request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Lending Office)
to any tax, duty or other charge with respect to its
Fixed Rate Loans, its Notes or its obligation to make
Fixed Rate Loans, or shall change the basis of taxation
of payments to any Bank (or its Lending Office) of the
principal of or interest on its Fixed Rate Loans or any
other amounts due under this Agreement in respect of its
Fixed Rate Loans or its obligation to make Fixed Rate
Loans (except for changes in the Rate of tax on the
overall net income of such Bank or its Lending Office
imposed by the jurisdiction in which such Bank's
principal executive office or Lending Office is
located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement
(including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any CD Rate Loan
any such requirement included in an applicable CD
Reserve Requirement or with respect to any Euro-Dollar
Loan any such requirement included in an applicable
Euro-Dollar Reserve Percentage) against assets of,
deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office) or shall impose on
any Bank (or its Lending Office) or on the United States
market for certificates of deposit or the London
interbank market any other condition affecting its Fixed
Rate Loans, its Notes or its obligation to make Fixed
Rate Loans;
and the result of any of the foregoing is to increase the
cost to such Bank (or its Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect
thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy
to the Administrative Agent), the Borrower shall pay to such
Bank such additional amount or amounts as will compensate
such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that the
application or adoption after the date hereof of any
applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing
the rate of return on such Bank's (or the holding company
thereof) capital as a consequence of its obligations
hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies with respect to
capital adequacy in effect prior to such application,
adoption or change) by an amount deemed by such Bank to be
material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction
provided, however, that to the extent any reduction in the
rate of return on such Bank's capital results both from its
obligations hereunder and from developments in its business
or financial position not related to this Agreement, such
Bank shall, in determining the amount necessary to compensate
it under this paragraph, attempt in good faith to take
account of the relative contributions of such obligations
hereunder and such other developments or change in its
financial position to such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Bank
to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will
not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If any Bank requests
compensation under this Section 8.03, the Borrower may, by
notice to such Bank and the Administrative Agent, require
that: (x) such Bank furnish to the Borrower a statement
setting forth the basis for requesting such compensation and
the method for determining the amount thereof; or (y) the
Loans of the type with respect to which such compensation is
requested be either prepaid or converted into Loans of
another type in accordance with Section 8.04.
Notwithstanding the foregoing, no Bank shall be entitled to
request compensation under this Section 8.03 with respect to
any Money Market Loan if the regulatory change giving rise to
such request shall, or in good faith should, have been taken
into account in formulating the Money Market Quote pursuant
to which such Money Market Loan shall have been made. The
statement of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts to
be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may
use any reasonable averaging and attribution methods.
SECTION 8.04. Reference Rate Loans Substituted for Affected
Fixed Rate Loans. If (i) the obligation of any Bank to make CD
Rate Loans or Euro-Dollar Loans, as the case may be, has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) and the Borrower shall, by at
least five Euro-Dollar Business Days' prior notice to such Bank
through the Administrative Agent, have elected that the provisions
of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise
to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such
Bank as CD Rate Loans, if the ability to make CD Loans is
affected, or all Loans which would otherwise be made by such
Bank as Euro-Dollar Loans, if the ability to make Euro-Dollar
Loans is affected, shall be made instead as Reference Rate
Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the
other Banks), and
(b) after each of its CD Rate Loans or its Euro-Dollar
Loans, as the case may be, has been repaid, all payments of
principal which would otherwise be applied to repay such
Loans shall be applied to repay its Reference Rate Loans
instead.
SECTION 8.05. Change in Ownership. If, after the date
hereof, any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) other than a Principal Shareholder, acquires beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of shares of
capital stock of the Borrower having 30% or more of the combined
ordinary voting power of all capital stock in the election of
directors of the Borrower, then upon 90 days' written notice to
the Borrower by the Required Banks, the Commitments shall be
reduced (i) on the 90th day after the giving of such notice, to an
amount equal to the aggregate principal amount of the outstanding
Loans and (ii) on the date of the maturity of each outstanding
Loan on or after such 90th day, by an amount equal to the
aggregate principal amount of Loans maturing, so that on the last
maturity date, all the Commitments will have terminated in their
entirety.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including bank wire, facsimile, telex, or similar writing) and
shall be given to such party at its address or facsimile or telex
number set forth on the signature pages hereof or such other
address or facsimile or telex number as such party may hereafter
specify in writing for the purpose by notice to the Administrative
Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by facsimile or
telex, when such facsimile or telex is transmitted to the
facsimile or telex number specified in this Section and the
appropriate answerback is received or (ii) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Administrative Agent under Article II
or Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the
Administrative Agent, any Agent or any Bank in exercising any
right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all reasonable out-of-
pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of Mayer, Brown & Platt,
special counsel for the Administrative Agent, in connection
with the preparation of this Agreement whether or not any
Loans are made, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-
of-pocket expenses incurred by the Administrative Agent or
any Agent or any Bank, including reasonable fees and
disbursements of counsel (including, but only in the case of
actual collection and other enforcement proceedings, counsel
who may be employees of the Administrative Agent, any Agent
or any Bank), in connection with such Event of Default and
collection and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify each Bank against
any transfer taxes, documentary taxes, assessments or charges
made by any governmental authority by reason of the execution
and delivery of this Agreement or the Notes.
(b) The Borrower agrees to indemnify the Administrative
Agent, each Bank and each Agent and hold the Administrative
Agent, each Bank and each Agent harmless from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of
counsel for the Administrative Agent, any Bank or any Agent,
in connection with any investigative, administrative or
judicial proceeding, whether or not the Administrative Agent,
such Bank or such Agent shall be designated a party thereto
but excluding income tax liabilities) which may be imposed
on, incurred by, or asserted against the Administrative Agent
such Bank or such Agent by any Person other than Borrower, in
any way relating to or arising out of (x) any acquisition or
proposed acquisition of equity securities for which the
proceeds of Loans hereunder may be used or (y) a transaction
which is (or may be) subject to the provisions of Section
8.05; provided that none of the Administrative Agent, any
Bank or any Agent shall have the right to be indemnified
hereunder for its own gross negligence or willful misconduct
or if any such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses
or disbursements arise out of (i) any breach by the
Administrative Agent, such Bank or such Agent of its
obligations hereunder or (ii) any false statement made by the
Administrative Agent, such Bank or such Agent in Section
9.07, in each case as determined by a court of competent
jurisdiction. The Administrative Agent, each Bank and each
Agent will promptly notify the Borrower of the commencement
of any proceeding involving it in respect of which
indemnification may be sought pursuant to this Section. The
Borrower shall not be liable for the cost of any settlement
entered into without its consent (which consent shall not be
unreasonably withheld).
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if
it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount
of principal and interest due with respect to any Note held by it
which is greater than the proportion received by any other Bank in
respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving
such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Notes
held by the Banks shall be shared by the Banks pro rata; provided
that nothing in this Section shall impair the right of any Bank to
exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the
Notes. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a
participation in a Note, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation
as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of
the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment or waiver
shall, unless signed by all the Banks, (i) increase or decrease
the Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or interest on any Loan
or any fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or any fees
hereunder or for any reduction or termination of any Commitment or
(iv) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Banks,
which shall be required for the Banks or any of them to take any
action under this Section or any other provision of this
Agreement.
SECTION 9.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower
may not assign or otherwise transfer any of its rights under
this Agreement without the prior written consent of all Banks
and a Bank or Agent or their respective permitted assignees
or transferees may not assign or otherwise transfer any
interest in or under this Agreement without the prior written
consent of the Borrower or as otherwise expressly provided
for by this Agreement. Any attempted assignment or transfer
in violation of this Section 9.06 shall be void. Any
request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is
the holder of any Note, shall be conclusive and binding on
any subsequent holder, transferee or assignee of such Note or
of any Note or Notes issued in exchange therefor, regardless
of whether any such Note shall have been marked to make
reference thereto.
(b) Any Bank may at any time grant to one or more banks
or other Persons (each a "Participant") participating
interests in its Commitment or any or all of its Loans. In
the event of any such grant by a Bank of a participating
interest to a Participant, such Bank shall remain responsible
for the performance of its obligations hereunder, the Bank
shall remain the holder of the Note for all purposes, all
amounts payable by the Borrower shall be determined without
regard to the sale of the participation, and the Borrower and
the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant
to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described
in clause (i), (ii) or (iii) of Section 9.05 without the
consent of the Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII
with respect to its participating interest. An assignment or
other transfer which is not permitted by subsection (c) below
shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance
with this subsection (b). Upon request by the Borrower or
Administrative Agent, a Bank shall provide the Borrower and
the Administrative Agent with the identities of any
participants and the amounts of their participation.
(c) Any Bank may at any time assign to one or more
banks, other financial institutions or any affiliate of the
Bank (each an "Assignee") all, or a proportionate part of
all, of its rights and obligations under this Agreement and
the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an instrument substantially in the
Form of Exhibit J executed by such Assignee and such
transferor Bank, with (and subject to) the prior subscribed
consent of the Borrower and the Administrative Agent, such
consents not to be unreasonably withheld; provided that
Borrower's consent shall not be required for an assignment or
other transfer by any Bank to an affiliate of such Bank or to
a Federal Reserve Bank; and provided, further, that no Bank
shall assign less than a minimum of $10,000,000 (or other
amounts approved by the Borrower) in principal amount of its
Loans or Notes or its Commitment. Upon execution and
delivery of such an instrument and payment by such Assignee
to such transferor Bank of an amount equal to the purchase
price agreed between such transferor Bank and such Assignee
and payment of the fee, if applicable, set forth below in
this subsection (c), such Assignee shall be a Bank party to
this Agreement and shall have all the rights and obligations
of a Bank with a Commitment in the amount set forth in such
instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding
amount, and no further consent or action by any party shall
be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the
Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to
the Assignee. The Administrative Agent and the Borrower may
treat the transferor Bank as the owner of its Note for all
purposes under this Agreement unless and until such Bank
complies with all the requirements of this Section. Prior to
the issuance of any such new Note, the Assignee to which such
Note is issued shall pay to the Administrative Agent a fee of
$2,000.
(d) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater
payment under Section 8.03 than such Bank would have been
entitled to receive with respect to the rights transferred,
unless such transfer is made (i) with the Borrower's express
prior written consent as provided in Section 9.06(c) or other
prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a
different Lending Office under certain circumstances or (ii)
at a time when the circumstances giving rise to such greater
payment did not exist unless such transfer is made with the
Borrower's consent as provided in Section 9.06(c) or other
prior written consent.
(e) The Borrower shall have the right to terminate this
Agreement with respect to any Bank; provided that,
simultaneously with such termination, a bank or banks (which
may be one or more of the Banks) mutually satisfactory to the
Borrower and the Administrative Agent purchases the Notes and
assumes the Commitment of such Bank. The obligations of the
Borrower to any Bank pursuant to Section 9.03 shall survive
any such termination with respect to such Bank.
(f) Prior to any Bank, Assignee or Participant (each a
"Transferor") disclosing to any Participant or Assignee or
prospective Participant or Assignee (each, a "Transferee") of
the Commitment or any of the Loans any and all non-public
information in such Transferor's possession concerning the
Borrower and any Subsidiary of the Borrower which has been
delivered to such Transferor by the Borrower or another
Transferor pursuant to this Agreement or which has been
delivered to such Transferor by the Borrower or another
Transferor in connection with such Transferor's credit
evaluation of the Borrower prior to entering into this
Agreement or purchasing any of the Loans, such Transferor
shall obtain the subscribed consent of the Borrower and the
Administrative Agent (such consent not to be unreasonably
withheld) and shall comply with Section 9.07(b).
SECTION 9.07. Confidentiality. The Banks shall hold
confidential all non-public information (which has been identified
as such by the Borrower) obtained pursuant to the requirements of
this Agreement in accordance with safe and sound banking practices
and use such information only for the purpose of evaluating and
monitoring the creditworthiness of the Borrower and its
Subsidiaries in connection with the Bank's or Transferee's
extensions of credit pursuant to this Agreement; provided that the
Banks may make disclosure to any of their examiners, affiliates,
outside auditors, counsel and other professional advisors in
connection with this Agreement or as reasonably required by any
transferee, participant or assignee or as required or requested by
any governmental agency or representative thereof or pursuant to
legal process. In addition:
(a) unless specifically prohibited by applicable law or
court order, each Bank shall notify the Borrower of any
request by any governmental agency or representative thereof
(other than any such request in connection with an
examination of the financial condition of such Bank by such
governmental agency) for disclosure of any such non-public
information prior to disclosure of such information;
(b) prior to any disclosure of non-public information
pursuant to this Section 9.07, each Bank shall require any
such transferee, participant and assignee receiving a
disclosure of non-public information to agree in writing to
be bound by this Section 9.07; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein,
no Bank shall be obligated or required to return any
materials furnished by the Borrower or any Subsidiary.
SECTION 9.08. Collateral. Each of the Banks represents to
the Administrative Agent and each of the other Banks that it in
good faith is not relying upon any "margin stock" (as defined in
Regulation U) as collateral in the extension or maintenance of the
credit provided for in this Agreement.
SECTION 9.09. New York Law and Forum. THIS AGREEMENT AND
EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, THE AGENTS, THE BANKS OR THE BORROWER SHALL
BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY
MAY BE BROUGHT AT THE ADMINISTRATIVE AGENT'S OPTION IN THE
JURISDICTION WHERE THE PROPERTY IS LOCATED. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY
LITIGATION AS SET FORTH ABOVE AND AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 9.10. Counterparts; Integration; Effectiveness.
This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement constitutes the entire agreement and understanding among
the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective when the
Administrative Agent shall have received counterparts hereof
signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
ASHLAND COAL, INC.
By /s/Marc R. Solochek
Title: Senior Vice President
By /s/Roy F. Layman
Title: Administrative Vice President
2205 Fifth Street Road
Huntington, West Virginia 25701
or
P.O. Box 6300
Huntington, West Virginia 65771-6300
Attention: Marc R. Solochek
Senior V.P. & C.F.O.
Telephone: (304) 526-3581
Facsimile: (304) 526-3580
Telex: (701) 931-1907
ANSWERBACK: ASHLANDCOAL
Commitments
[31,000,000.00] NATIONAL WESTMINSTER BANK PLC,
individually, as Agent and as
Administrative Agent
By /s/Ian M. Plester
Title: Vice President
Domestic Lending Office
Credit Contact:
National Westminster Bank PLC-
New York Branch
175 Water Street
New York, New York 10038
Attention: Ian Plester
Telephone: (212) 602-4332
Telex: 233222 NWBK UR
Facsimile: (212) 602-4402
Money Market and Euro-Dollar Lending
Office
National Westminster Bank PLC-
Nassau Branch
c/o New York Branch
175 Water Street
New York, New York 10038
Telex: 233222 NWBK UR
Facsimile: (212) 602-4118
Agent Services and Money
Market Quote Contact
Attention: Agency Division:
Douglas M. Burnett
Telephone: (212) 602-4250
Facsimile: (212) 602-4118
Payment Instructions
National Westminster Bank PLC-
New York Branch
Fed ABA: 026002749
A/C: 89046668
Ref: Ashland Coal
Attn: Douglas Burnett
[31,000,000.00] BANK OF AMERICA ILLINOIS, individually
and as Agent
By /s/Tom Pearson
Title: Vice President
Domestic and Euro-Dollar Lending Office
Attention: Fredric W. McClendon
231 South LaSalle Street-3Q
Chicago, Illinois 60697
Telephone: (312) 828-3419
Facsimile: (312) 987-5891 or 5896
Telex: 253460
ANSWERBACK: CONILL BK CGO B
Credit Contact:
Tom Pearson
Vice President
231 LaSalle Street
Telephone: (312) 828-3100
Facsimile: (312) 987-5614
Operations Contact:
Ida Rubens, AA
231 LaSalle Street
Telephone: (312) 828-5239
Facsimile: (312) 987-5614
Money Market Quote Contact
Attention: Michael E. Fafoutis
Telephone: (312) 828-2727
Facsimile: (312) 987-3753
Payment Instructions
Bank of America, Illinois
231 LaSalle Street-Chicago, IL
Fed ABA #071000039
A/C 6383440
Ashland Coal Inc.
Ref Ashland Coal Inc.
Attn: Loan Division 105 Bldg, 4th Floor
[31,000,000.00] MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, individually
and as Agent
By /s/James S. Finch
Title: Vice President
Domestic Lending Office and
Address for Notices
Morgan Guaranty Trust Company
of New York
Attention: Loan Department
60 Wall Street
New York, NY 10260-0060
Telephone: (302) 634-4221
Facsimile: (302) 634-4222
Administrative Contact:
Jim Finch, VP
60 Wall Street
New York, NY 10260-0060
Telephone: (212) 648-7141
Facsimile: (212) 648-5014
177615 Telex
MGT UT
Operations Contact:
Leslie Nilsen
Morgan Guaranty Trust Co.
J.P. Morgan Services, Inc.
500 Stanton-Christiana Road
Newark, DE 19713-9875
Telephone: (302) 634-4221
Facsimile: (302) 634-4222
Euro-Dollar Lending Office
Morgan Guaranty Trust Company of New
York
c/o J. P. Morgan Services, Inc.
Loan Operations, 3rd Floor
Attention: Loan Department
500 Stanton Christiana Road
Newark, DE 19713-9875
Telex/Answerback: 177425/NBDELUT
Payment Instructions
Morgan Guaranty Trust Co.
New York, NY
Fed ABA 021000238 Loan Department
A/C 99999090 Attn: Corporate Processing
Ref: Ashland Coal
[31,000,000.00] THE FIRST NATIONAL BANK OF CHICAGO
individually and as Agent
By /s/Barbara Chapman
Title: Corporate Banking Officer
Domestic Lending Office
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Michele Alberico
Telephone: (312) 732-2651
Facsimile: (312) 732-3055
Telex: 433-0253
ANSWERBACK: FNBCUI
Credit Contact:
Amy Howatt, AVP
One First National Plaza
Chicago, IL 60670
Telephone: (312)732-4305
Facsimile: (312)732-3044
Operations Contact:
Bill Laird
One First National Plaza
Chicago, IL 60670
Telephone: (312)732-5635
Facsimile: (312)732-4840
Euro-Dollar Lending Office
Same as above
Payment Instructions
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Fed ABA 071000013
A/C 75217653
DES Incoming Clearance Acct.
Ref: Ashland Coal
Attn: Bill Laird
[31,000,000.00] PNC BANK, NATIONAL ASSOCIATION
individually and as Agent
By /s/Dale Stein
Title: Vice President
Domestic and Euro-Dollar Lending Office
Credit Contact:
Dale Stein, VP
Two PNC Plaza, Second Floor
620 Liberty Avenue
Pittsburgh, PA 15265
Telephone: (412) 762-7867
Facsimile: (412) 762-2784
Operations Contact:
Tina Lanuka
Two PNC Plaza, Second Floor
620 Liberty Avenue
Pittsburgh, PA 15265
Telephone: (412) 762-4826
Facsimile: (412) 762-2784
Euro-Dollar Lending Office
Same as above
Payment Instructions
PNC Bank, National Association
Pittsburgh, PA
Fed ABA 043000096
A/C 9724531
Ref: Ashland Coal, Inc.
Attn: Commercial Loans Dept.
[26,000,000.00] THE BANK OF NOVA SCOTIA
By /s/J. Alan Edwards
Title: Authorized Signatory
Domestic Lending Office
Credit Contact:
J. Alan Edwards/Meredith Wedeking
The Bank of Nova Scotia
One Liberty Plaza - 26th Floor
New York, NY 10006
Telephone: (212) 225-5015/5017
Facsimile: (212) 225-5090
Operations Contact:
Tilsa Cora
The Bank of Nova Scotia
One Liberty Plaza - 26th Floor
New York, NY 10006
Telephone: (212) 225-5044
Facsimile: (212) 225-5271
Euro-Dollar Lending Office
Same as above
Payment Instructions
The Bank of Nova Scotia
New York, NY
Fed ABA 026002532
Ref: Ashland Coal
Attn: Loan Accounting
[26,000,000.00] FIRST UNION NATIONAL BANK OF VIRGINIA
By /s/Lawrence Levy
Title: Vice President
Domestic Lending Office
Credit Contact:
Lawrence Levy, VP
213 S. Jefferson Street
Roanoke, VA 24011
Telephone: (703) 563-7609
Facsimile: (703) 563-6320
Operations Contact:
Marlene Belcher, AVP
213 S. Jefferson Street
Roanoke, VA 24011
Telephone: (703) 563-6086
Facsimile: (703) 563-6302
Euro-Dollar Lending Office
Same as above
Payment Instructions
First Union National Bank of Virginia
213 S. Jefferson Street
Roanoke, VA 24011
Fed ABA 051400549
A/C 5001007285783
Loan Apex
Ref: Ashland
Attn: Marlene Belcher 580-6086
[26,000,000.00] THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By /s/Robert W. Ramage, Jr.
Title: Senior Vice President
Domestic and Euro-Dollar Lending Office
Credit Contact:
John Dippo/Neale Broadhead
245 Park Avenue, 23rd Floor
New York, NY 10167
Telephone: (212) 309-6689/6516
Facsimile: (212) 557-3581
175599 Telex
IBJBRUT
Operations Contact:
Ms. Angus Aberin
245 Park Avenue, 23rd Floor
New York, NY 10167
Telephone: (212) 309-6793
Facsimile: (212) 949-=0134
175599 Telex
IBJBRUT
Euro-Dollar Lending Office
Same as above
Payment Instructions
Industrial Bank of Japan, Ltd.
New York, NY
Fed ABA 026008345
Ref: Ashland Coal, Inc.
Attn: Credit Administration
[26,000,000.00] MELLON BANK, N.A.
By /s/Andrew L. Mellgard
Title: Assistant Vice President
Domestic and Euro-Dollar Lending Office
Credit Contact:
Attention: Andrew L. Mellgard
Assistant Vice President
Mining Section
One Mellon Bank Center, 151-4401
Pittsburgh, PA 15258-0001
Telephone: (412) 236-2781
Facsimile: (412) 234-8888
[Telex: 199 103 or 812 367]
Operations Contact:
Attention: Sandra Castelli
Three Mellon Bank Center, 153-2302
Pittsburgh, PA 15259
Telephone: (412) 234-1869
Facsimile: (412) 236-2027 or 2028
Telex: 199 103 or 812 367
ANSWERBACK: MEL BNK
Euro-Dollar Lending Office
Same as above
Money Market Quote Contact
Mellon Bank
Two Mellon Bank Center
[OMBC - 400]
Loan Administration
Pittsburgh, PA 15258
Attention: Marilyn Wagner
Telephone: (412) 234-1693
Facsimile: (412) 234-7834
Telex: 199 103 or 812 367
Payment Instructions
Mellon Bank, N.A.
Pittsburgh, PA
Account No.: 990873800
Account Name: Loan Administration
Ref: Ashland Coal
ABA No.: 043000261
[26,000,000.00] THE MITSUBISHI BANK, LIMITED,
CHICAGO BRANCH
By /s/Noboru Kobayashi
Title: Joint General Manager
Domestic Lending Office
Credit Contact:
Robert Kotler, VP
115 S. LaSalle Street
Suite 2100
Chicago, IL 60603
Telephone: (312) 269-0447
Facsimile: (312)263-2555
Operations Contact:
Janice Hennig, AVP
115 S. LaSalle Street
Suite 2100
Chicago, IL 60603
Telephone: (312) 269-0473
Facsimile: (312) 263-2555
Euro-Dollar Lending Office
Same as above
Payment Instructions
The Mitsubishi Bank Ltd Chicago Branch
115 S. LaSalle Street
Suite 2100
Chicago, IL 60603
Fed ABA 071002341
Attn: Loan Administration
[26,000,000.00] SHAWMUT BANK, N.A.
By /s/Kerry Day
Title: Assistant Vice President
Domestic Lending Office
Credit Contact:
Kerry Day, AVP
One Federal Street Of-0324
Boston, MA 02211
Telephone: (617) 292-3064
Facsimile: (617) 292-2566
Operations Contact:
Joe DeGiacomo
One Federal Street Of-0324
Boston, MA 02211
Telephone: (617) 292-2250
Facsimile: (617) 292-2566
Euro-Dollar Lending Office
Same as above
Payment Instructions
Shawmut Bank, N.A.
Hartford, CT
Fed ABA 011900445
Ref: Ashland Coal
Attn: Comm. Loan Ops. Spec. Assets
[21,000,000.00] ABN AMRO BANK, N.V.
By /s/Craig Gviane
Title: Assistant Vice President
Domestic Lending Office
Credit Contact:
Jim Janovsky, VP
One PPG P1, Suite 2950
Pittsburgh, PA 15222-5400
Telephone: (412) 566-2269
Facsimile: (412) 566-2266
Operations Contact:
Monica Meis/Michelle Guza
One PPG P1, Suite 2950
Pittsburgh, PA 15222-5400
Telephone: (412) 566-0979/2267
Facsimile: (412) 471-2326
Euro-Dollar Lending Office
Same as above
Payment Instructions
ABN AMRO Bank, N.V.
New York Branch
Fed ABA #026009580
A/C 651001063441
ABN AMRO PITTSBURGH
Ref: Ashland Coal
Attn: M. Meis/ M. Guza
[21,000,000.00] BANK OF MONTREAL
By /s/Brian Savage
Title: Director
Domestic Lending Office
Credit Contact:
Bank of Montreal
Brian Savage
Director
430 Park Avenue, 14th Floor
New York, NY 10022
Telephone: (212) 605-1420
Facsimile: (212) 605-1618
Operations Contact:
Bank of Montreal
Dolores Rivera
430 Park Avenue, 16th Floor
New York, NY 10022
Telephone: (212) 605-1471
Facsimile: (212) 605-1618
Euro-Dollar Lending Office
Same as above
Payment Instructions
Harris Trust & Savings Bank
115 LaSalle Street- Chicago, IL
Fed ABA 071000288
A/C 1248566
Bank of Montreal
Ref: Ashland Coal
[21,000,000.00] CREDIT LYONNAIS, NEW YORK BRANCH
By /s/Mark Campellone
Title: Vice President
CREDIT LYONNAIS, GRAND CAYMAN BRANCH
By /s/Mark Campellone
Title: Vice President
Domestic Lending Office
Credit Contact:
Alexander Averbukh
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 261-7335
Facsimile: (212) 459-3179
Operations Contact:
Kevin McCarthy
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 261-7334
Facsimile: (212) 459-3179
Euro-Dollar Lending Office
Same as above
Payment Instructions
Credit Lyonnais NY Branch
Fed ABA 026008073
A/C 0100882000100
Credit Lyonnais Grand Cayman
Ref: Ashland Coal, Loan Servicing
[21,000,000.00] DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By /s/Deborah Slusarczyk
Title: Vice President
By /s/Robert Gulla
Title: Vice President
Domestic Lending Office: New York Branch
Credit Contact:
Deborah Slusarczyk, VP
75 Wall Street
New York, NY 10005
Telephone: (212) 574-0244
Facsimile: (212) 574-0130
Operations Contact:
Howard Ramlal
75 Wall Street
New York, NY 10005
Telephone: (212) 574-0279
Facsimile: (212) 574-0130
Euro-Dollar Lending Office: New York
and/or Grand Cayman Island Branches
Payment Instructions
Chase Manhattan Bank
New York, NY
Fed ABA 021000021
A/C 9201059079
Dresdner Bank, NYB
For further credit to: A/C #9-95010200
Ref: Ashland Coal
[15,000,000.00] BARCLAYS BANK PLC
By /s/Dennis Ruggles
Title: Associate Director
Domestic and Euro-Dollar Lending Office
Attention: Adele Savoretti
CSU, 222 Broadway, 12th Floor
Telephone: (212) 412-4039
Facsimile: (212) 412-5002
Telex: 12-6946
Credit Contact:
Heather Harrison
222 Broadway
New York, NY 10038
Telephone: (212) 412-2981
Facsimile: (212) 412-7589
Operations Contact:
Adele Savoretti
222 Broadway
New York, NY 10038
Telephone: (212) 412-4039
Facsimile: (212)412-5002
Euro-Dollar Lending Office
Same as above
Payment Instructions
Fed ABA # 026002574
Barclays Bank PLC
For Credit to the Clad Control A/C
# 050-019-104
Ref: Ashland Coal Inc.
[15,000,000.00] THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/M. Yamagashi
Title: Chief Manager
Domestic Lending Office
Credit Contact:
Jordan Greene, AVP
440 S. LaSalle, Suite 3100
Chicago, IL 60605
Telephone: (312) 663-6005
Facsimile: (312) 663-0863
Operations Contact:
David Miller
440 S. LaSalle, Suite 3100
Chicago, IL 60605
Telephone: (312) 408-6023
Facsimile: (312) 663-0863
Euro-Dollar Lending Office
Same as above
Payment Instructions
Harris Bank International
New York, NY 10022
Fed ABA 776
A/C 99026677
MTBC CHGO
Ref: Deere
[15,000,000.00] THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By /s/Peter J. Pawlak
Title: Peter J. Pawlak
Vice President and Senior
Manager
Domestic Lending Office
Credit Contact:
Peter J. Pawlak
Vice President and Senior Manager
133 Peachtree Street, Suite 4750
Atlanta, GA 30303
Telephone: (404) 586-6888
Facsimile: (404) 589-1629
Operations Contact:
Kristie Hartrampf
Assistant Vice President
133 Peachtree Street, Suite 4750
Atlanta, GA 30303
Telephone: (404) 586-6839
Facsimile: (404) 589-1629
Euro-Dollar Lending Office
Same as above
Payment Instructions
Sanwa Bank - NY, NY
Fed ABA 026009823
A/C 999669
Sanwa Atlanta
Ref: Ashland Coal
[15,000,000.00] SOCIETY NATIONAL BANK
By /s/Wayne K. Guessford
Title: Vice President
Domestic Lending Office
Credit Contact:
Society National Bank
John Scuterud
525 Vine Street, 6th Floor
Cincinnati, OH 45202
Telephone: (513) 762-8210
Facsimile: (513) 762-8222
Operations Contact:
Society National Bank
John Scuterud
525 Vine Street, 6th Floor
Cincinnati, OH 45202
Telephone: (513) 762-8210
Facsimile: (513) 762-8222
Euro-Dollar Lending Office
Same as above
Payment Instructions
Society National Bank
Cleveland, OH 44114-1306
Fed ABA #041001039
A/C #(to be determined)
Ref: Ashland Coal
[15,000,000.00] THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By /s/Yoshinori Kawamura
Title: Joint General Manager
Domestic Lending Office
Credit Contact:
Harry Murakami
The Sumitomo Bank, Limited
New York Branch
277 Park Avenue
New York, NY 10172
Telephone: (212) 224-4130
Facsimile: (212) 224-5188
Operations Contact:
Jessica Farfan
The Sumitomo Bank, Limited
New York Branch
277 Park Avenue
New York, NY 10172
Telephone: (212) 224-4132
Facsimile: (212) 224-5197
Euro-Dollar Lending Office
Same as above
Payment Instructions
Morgan Guaranty Trust Company
Account No. 631-28256
ABA No. 0210-00238
Atten: For Further funds to Sumitomo
Bank, Ltd., NY Branch
[15,000,000.00] SWISS BANK CORPORATION, NEW YORK BRANCH
By /s/Nancy A. Hanrahan
Title: Director
By /s/H. Clark Worthley
Title: Associate Director
SWISS BANK CORPORATION, CAYMAN ISLAND
BRANCH
By /s/Nancy A. Hanrahan
Title: Director
By /s/H. Clark Worthley
Title: Associate Director
Domestic Lending Office
Credit Contact:
Nancy Hanrahan, Director
222 Broadway, 222-04-E
New York, NY 10038
Telephone: (212) 574-4102
Telephone: (212) 574-4395
Operations Contact:
Valerie Williams
222 Broadway, 222-02-E
New York, NY 10038
Telephone: (212) 574-3146
Facsimile: (212) 574-4176
Euro-Dollar Lending Office
Attention: Vallerie Williams
Swiss Bank Corporation
Cayman Island Branch
c/o 222 Broadway, 222-02-E
New York, NY 10038
Telephone: (212) 574-3146
Facsimile: (212) 574-4176
Payment Instructions
Swiss Bank Corporation
New York Branch
Fed ABA 026007993
Attn: Valerie Williams
Ref: Ashland Coal
[15,000,000.00] YASUDA TRUST AND BANKING CO. LTD.
By /s/Neil T. Chau
Title: First Vice President
Domestic Lending Office
Credit Contact:
Sanjay Sinha, VP
285 Peachtree Center Ave.
N.E. Suite 2104
Atlanta, GA 30303
Telephone: (404) 584-8230
Facsimile: (404) 584-7816
Operations Contact:
Winnie Tang/Wai Wang
666 Fifth Avenue, Suite 801
New York, NY 10103
Telephone: (212) 373-5760
Facsimile: (212) 373-5797
Euro-Dollar Lending Office
Same as above
Payment Instructions
Chemical Bank
55 Water Street, NY NY
Fed ABA 021000128
A/C 400054116
Yasuda Trust and Banking Co. Ltd.
Ref: Ashland
Attn:Winnie Tang
$500,000,000 Total Commitments
EXHIBIT A
REFERENCE RATE NOTE
New York, New York
$ , 1994
For value received, ASHLAND COAL, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account
of its Domestic Lending Office, the lesser of the principal
amount of dollars ($ ) or the aggregate
unpaid principal amount of Reference Rate Loans made by the Bank
to the Borrower pursuant to the Credit Agreement referred to
below on the last day of the Interest Period relating to such
Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Reference Rate Loan on the dates
and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately
available funds at the office of National Westminster Bank PLC,
175 Water Street, New York, New York, 10038.
All Reference Rate Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is one of the Reference Rate Notes referred to in
the Amended and Restated Credit Agreement dated as of November
15, 1994 among the Borrower, the banks listed on the signature
pages thereof, National Westminster Bank PLC, as Coordinating and
Administrative Agent, and Bank of America Illinois, Morgan
Guaranty Trust Company of New York, National Westminster Bank
PLC, The First National Bank of Chicago and PNC Bank, National
Association, as Agents (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
ASHLAND COAL, INC.
By_________________________________
Title:
By
Title:
Reference Rate Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
_________________________________________________________________
Amount Amount of
of Principal Maturity Notation
Date Loan Repaid Date Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Exhibit B
CD RATE NOTE
New York, New York
$ , 1994
For value received, ASHLAND COAL, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account
of its Domestic Lending Office, the lesser of the principal
amount of dollars ($ ) or the aggregate
unpaid principal amount of CD Rate Loans made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on
the last day of the Interest Period relating to such Loan. The
Borrower promises to pay interest on the unpaid principal amount
of each such CD Rate Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at
the office of National Westminster Bank PLC, 175 Water Street,
New York, New York, 10038.
All CD Rate Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is one of the CD Rate Notes referred to in the
Amended and Restated Credit Agreement dated as of November 15,
1994 among the Borrower, the banks listed on the signature pages
thereof, National Westminster Bank PLC, as Coordinating and
Administrative Agent, and Bank of America Illinois, Morgan
Guaranty Trust Company of New York, National Westminster Bank
PLC, The First National Bank of Chicago and PNC Bank, National
Association, as Agents (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
ASHLAND COAL, INC.
By_________________________________
Title:
By
Title:
CD Rate Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
_________________________________________________________________
Amount Amount of
of Principal Maturity Notation
Date Loan Repaid Date Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Exhibit C
EURO-DOLLAR NOTE
New York, New York
$ , 1994
For value received, ASHLAND COAL, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the
account of its Euro-Dollar Lending Office, the lesser of the
principal amount of dollars ($ ) or the
aggregate unpaid principal amount of Euro-Dollar Loans made by
the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the last day of the Interest Period relating
to such Loan. The Borrower promises to pay interest on the
unpaid principal amount of each such Euro-Dollar Loan on the
dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other
immediately available funds at the office of National Westminster
Bank PLC, 175 Water Street, New York, New York, 10038.
All Euro-Dollar Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is one of the Euro-Dollar Notes referred to in the
Amended and Restated Credit Agreement dated as of November 15,
1994 among the Borrower, the banks listed on the signature pages
thereof, National Westminster Bank PLC, as Coordinating and
Administrative Agent, and Bank of America Illinois, Morgan
Guaranty Trust Company of New York, National Westminster Bank
PLC, The First National Bank of Chicago and PNC Bank, National
Association, as Agents (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
ASHLAND COAL, INC.
By
Title:
By
Title:
Euro-Dollar Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
_________________________________________________________________
Amount Amount of
of Principal Maturity Notation
Date Loan Repaid Date Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Exhibit D
MONEY MARKET NOTE
New York, New York
$ , 1994
For value received, ASHLAND COAL, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account
of its Money Market Lending Office, the aggregate unpaid
principal amount of Money Market Loans made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on
the last day of the Interest Period relating to such Loan. The
Borrower promises to pay interest on the unpaid principal amount
of each such Money Market Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at
the office of National Westminster Bank PLC, 175 Water Street,
New York, New York, 10038.
All Money Market Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is one of the Money Market Notes referred to in
the Amended and Restated Credit Agreement dated as of November
15, 1994 among the Borrower, the banks listed on the signature
pages thereof, National Westminster Bank PLC, as Coordinating and
Administrative Agent, and Bank of America Illinois, Morgan
Guaranty Trust Company of New York, National Westminster Bank
PLC, The First National Bank of Chicago and PNC Bank, NATIONAL
ASSOCIATION, as Agents (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
ASHLAND COAL, INC.
By
Title:
By
Title
Money Market Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
_________________________________________________________________
Amount Amount of
of Principal Maturity Notation
Date Loan Repaid Date Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Exhibit E
Form of Money Market Quote Request
[Date]
To: National Westminster Bank PLC (the "Administrative
Agent")
From: Ashland Coal, Inc.
Re: Amended and Restated Credit Agreement, dated as of
November 15, 1994 (the "Credit Agreement"), among the
Borrower, the Banks listed in the signature pages
thereof, the Administrative Agent and the Agents.
We hereby give notice pursuant to Section 2.03 of the
Credit Agreement that we request Money Market Quotes at either an
absolute rate or a margin over London Interbank Offered Rate for
the following proposed Money Market Borrowing(s):
Date of Borrowing: ________________
Principal Interest
Amount1 Period2 Rate3
$
Such Money Market Quotes should offer a Money Market
Rate.
Terms used herein have the meanings assigned to them in
the Credit Agreement.
ASHLAND COAL, INC.
By____________________________
Title:
1 Aggregate amount must be a minimum of $10,000,000 or an
integral multiple of $1,000,000 over such amount.
2 Not less than 7 days nor more than 183 days, subject to the
provisions of the definition of Interest Period.
3 Specify either absolute rate or a margin over London
Interbank Offered Rate for any given Interest Period.
Exhibit F
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Ashland Coal, Inc.
(the "Borrower")
Pursuant to Section 2.03 of the Amended and Restated
Credit Agreement dated as of November 15, 1994 among the
Borrower, the Banks parties thereto, National Westminster Bank
PLC, as Coordinating and Administrative Agent, and Bank of
America Illinois, Morgan Guaranty Trust Company of New York,
National Westminster Bank PLC, The First National Bank of Chicago
and PNC Bank, National Association, as Agents, we are pleased on
behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market
Borrowing(s):
Date of Borrowing: ______________________________
Principal Amount1 Interest Period2
$
Such Money Market Quotes should offer a Money Market
Rate.
Please respond to this invitation by replying to
National Westminster Bank PLC, as Administrative Agent, 175 Water
Street, New York, New York, 10038, Attention:
by no later than 10:00 A.M. (New York) on [date].
NATIONAL WESTMINSTER BANK PLC
as Administrative Agent
By__________________________
Authorized Officer
1 Aggregate amount of each quote must be a minimum of
$5,000,000 or an integral multiple of $1,000,000 over such
amount.
2 Not less than 7 days nor more than 183 days, subject to the
provisions of the definition of Interest Period.
Exhibit G
Form of Money Market Quote
National Westminster Bank PLC, as Administrative Agent,
175 Water Street
New York, New York, 10038
Attention:
Re: Money Market Quote to Ashland Coal, Inc. (the "Borrower")
In response to the invitation of National Westminster Bank
PLC, as Coordinating and Administrative Agent (the
"Administrative Agent"), on behalf of the Borrower dated
________________, _____________ we hereby make the following
Money Market Quote on the following terms:
1. Quoting Bank: ___________________________________
2. Person to contact at Quoting Bank:
____________________________
3. Date of Borrowing: _________________________<F1>
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount<F2> Period<F3> [Rate]<F4>
$
$
[FN]
<F1> As specified in the related Invitation.
<F2> Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if
the sum of the individual offers exceeds the amount the Bank
is willing to lend. Bids must be made for $5,000,000 or an
integral multiple of $1,000,000 over that amount.
<F3> Not less than 7 days nor more than 183 days, as specified in
the related Invitation. No more than three bids are
permitted for each Interest Period.
<F4> Specify Rate of interest per annum (rounded to the nearest
1/100th of 1%).
[Provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted shall not
exceed $____________.]<F5>
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set
forth in the Amended and Restated Credit Agreement dated as of
November 15, 1994 among the Borrower, the Banks listed on the
signature pages thereof, National Westminster Bank PLC, as
Coordinating and Administrative Agent and Bank of America
Illinois, Morgan Guaranty Trust Company of New York, National
Westminster Bank PLC, The First National Bank of Chicago and PNC
Bank, National Association, as Agents, irrevocably obligates us
to make the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
[FN]
<F5> See footnote 2 above.
EXHIBIT H(1)
OPINION OF
CHIEF LEGAL OFFICER OF THE BORROWER
[TO BE DATED THE DATE OF THE FIRST BORROWING]
To the Banks, the Agents and
the Administrative Agent party to the
Credit Agreement Referred to Below
c/o National Westminster Bank PLC
175 Water Street
New York, New York 10038
Ladies and Gentlemen:
I am the Administrative Vice President - Law and Human
Resources of Ashland Coal, Inc., a Delaware corporation (the
"Borrower") and party to the Amended and Restated Credit
Agreement (the "Credit Agreement") dated as of November 15, 1994
among the Borrower, the banks listed on the signature pages
thereof, National Westminster Bank PLC, as Coordinating and
Administrative Agent, and Bank of America Illinois, Morgan
Guaranty Trust Company of New York, National Westminster Bank
PLC, The First National Bank of Chicago and PNC Bank, National
Association, as Agents. Terms defined in the Credit Agreement
are used herein as therein defined.
For purposes of the opinions expressed below, I have assumed
(i) the authenticity of all documents submitted to me as
originals, (ii) the conformity to the originals of all documents
submitted as certified or photostatic copies and the authenticity
of the originals, (iii) the legal capacity of natural persons,
and (iv) the due authorization, execution and delivery of all
documents by all parties and the validity and binding effect
thereof (other than the authorization, execution and delivery of
documents by the Borrower).
In connection with this opinion, I have examined originals
or copies, certified or otherwise identified to my satisfaction,
of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or
advisable for purposes of this opinion and, as to certain factual
matters, I have relied upon certificates of Delaware authorities.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware,
and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower
of the Credit Agreement and the Notes are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding
upon the Borrower or result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
3. Except as has been disclosed to the Banks in writing,
there is no action, suit or proceeding pending against, or to the
best of my knowledge threatened against or affecting, the
Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official, the
probable outcome of which could materially adversely affect the
business, consolidated financial position, properties or
operations of the Borrower and its Subsidiaries taken as a whole
or which in any manner draws into question the validity of the
Credit Agreement or the Notes.
4. Except as has been disclosed to the Banks in writing,
neither the Borrower nor any Subsidiary is in violation of any
environmental law or regulation of any Federal, state or local
governmental authority or has incurred or reasonably expects to
incur any liability to reimburse or to pay any penalty to any
Federal, state or local governmental authority for the costs of
any environmental clean-up, which liability, if incurred, would
have a material adverse effect on the financial condition or
results of operations of the Borrower and its Subsidiaries taken
as a whole.
I am a member of the Bars of the State of West Virginia and
the Commonwealth of Kentucky only, and I do not purport to be an
expert in the laws of the State of Delaware and I have made no
independent investigation of Delaware law generally. In
rendering the opinions given above, my opinion has been limited
to such matters as involve the States of West Virginia and
Kentucky, the Federal laws of the United States, and the General
Corporation Law of the State of Delaware.
The opinions rendered above are as of the date of this
opinion letter and I do not undertake to advise you of any
changes in the opinions expressed herein after the date hereof.
Very truly yours,
Roy F. Layman
EXHIBIT H(2)
OPINION OF
SPECIAL COUNSEL FOR THE BORROWER
[TO BE DATED THE DATE OF THE FIRST BORROWING]
To the Banks, the Agents and
the Administrative Agent party to the
Credit Agreement Referred to Below
c/o National Westminster Bank PLC
175 Water Street
New York, New York 10038
Ladies and Gentlemen:
Assuming the Amended and Restated Credit Agreement (the
"Credit Agreement") has been duly authorized, executed and
delivered by each Bank and the Coordinating and Administrative
Agent, the Agreement constitutes a legal, valid and binding
obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, reorganization,
fraudulent conveyance, insolvency, moratorium and other similar
laws from time to time in effect and except that (A) rights of
acceleration and the availability of equitable remedies,
including the remedy of specific performance may be limited by
general principles of equity (including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing) regardless of whether enforceability is considered in a
proceeding in equity or at law and (B) we express no opinion as
to the last sentence of Section 9.04 of the Agreement to the
extent it provides for a right of set-off in respect of
participating interests purchased pursuant to Section 9.06 of the
Credit Agreement and (C) we express no opinion as to the effect
of the law of any jurisdiction (other than the State of New
York), wherein the Borrower or any Bank, including any lending
office thereof, may be located which limits rates of interest
which may be charged or collected by such Bank. Insofar as any
provision contained in the Credit Agreement provides for
indemnification, the enforceability thereof may be limited by
public policy considerations.
We are admitted to practice only in the State of New York
and express no opinion as to matters governed by any laws other
than the laws of the State of New York, the Federal laws of the
United States of America and the General Corporation Law of the
State of Delaware.
Yours very truly,
Exhibit I
OPINION OF
MAYER, BROWN & PLATT, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
[Dated as provided in
Section 3.02 of the
Amended and Restated
Credit Agreement]
To the Banks, the Agents and
the Administrative Agent party to the
Credit Agreement Referred to Below
National Westminster Bank PLC
175 Water Street
New York, New York 10038
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section
3.02(c), of the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of November 15, 1994 among Ashland
Coal, Inc., a Delaware corporation, the banks listed on the
signature pages thereof, National Westminster Bank PLC, as
Coordinating and Administrative Agent, Bank of America Illinois,
Morgan Guaranty Trust Company of New York, National Westminster
Bank PLC, The First National Bank of Chicago and PNC Bank,
National Association, as Agents, and have acted as special
counsel for the Administrative Agent for the purpose of rendering
this opinion pursuant to Section 3.02(c) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein
defined.
We have acted as special counsel to Administrative Agent in
connection with the preparation, execution, and delivery of the
Credit Agreement and have participated in the closing held on the
date hereof.
In so acting, we have examined counterparts of the Credit
Agreement executed on behalf of the Company, and the following
documents, each of which is dated, or dated as of, the date
hereof:
a. The Notes, executed on behalf of the Company and payable
to the order of the respective Lenders,
b. The Opinions of General Counsel and
Special Counsel of the Borrower delivered pursuant
to Section 3.02 of the Credit Agreement.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the originals of all such documents
submitted to us as copies, and the due authority of the persons
executing or delivering the same. We have made no independent
examination of the records of the Borrower or any of its
Subsidiaries, any Bank, any Agent, or the Administrative Agent.
As to matters of law covered by the opinion of counsel, referred
to in Paragraph (d), we have relied solely, without independent
verification or investigation as to any of the matters referred
to therein, on such opinions.
Upon the basis of the foregoing and subject to the
qualifications set forth below, we are of the opinion that, under
the laws of the State of New York:
c. the Credit Agreement constitutes the valid, and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with its terms; and
d. the documents referred to in Paragraphs (a) through (c)
above are substantially responsive to the requirements of the
Credit Agreement.
Our opinion is subject to the following qualifications:
e. We express no opinion as to (i) the Borrower's agreement
in the Credit Agreement to pay interest on overdue interest, (ii)
the effect of the law of any jurisdiction other than the State of
New York wherein any Bank or any Bank's Lending Office for its
Loans or any successor Lending Office of any Bank may be located,
or wherein enforcement of the Credit Agreement or the Notes may
be sought which limits the rates of interest legally chargeable
or collectible, or (iii) The Borrower's agreement in the Credit
Agreement and other documents to indemnify you against costs or
expenses or liability arising out of or related to the entering
into, performance or enforcement of the transaction contemplated
by the Credit Agreement.
f. Our opinion in Paragraph (c) above is subject, as to
enforceability, to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting
the enforcement of creditors' rights generally, and to the effect
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). Such principles applied by a court might include concepts
of materiality, reasonableness, good faith, and fair dealing, and
might be applied, among other situations, to the provisions of
the Credit Agreement purporting to authorize conclusive
determinations by the Administrative Agent or any Bank.
We are members of the Bar of the State of New York and do
not purport to be experts on, or to express any opinions herein
concerning, any law other than the laws of the State of New York
and the Federal law of the United States of America.
This opinion is furnished by us as special counsel to the
Administrative Agent in connection with the Credit Agreement and
the transactions contemplated thereby, and is solely for the
benefit of the Administrative Agent, the Agents, and the Banks
and may not be relied upon by any other person or for any other
purpose.
Very truly yours,
SCHEDULE K
DISCLOSURE SCHEDULE
ITEM 1. Left intentionally blank
ITEM 2. Existing Subsidiaries.
State of Ownership Business
Name Incorporation % Description
See Attached List
ITEM 3. Litigation.
None
ITEM 4. Ongoing Indebtedness.
Creditor Outstanding Principal Amount
See Attached List
ITEM 5. Left intentionally blank
ITEM 6. Employee Benefit Plans.
None
ITEM 7. Environmental Matters.
Current Liability Anticipated Liability
Site Amount($) Site Amount($)
None None None None
