Exhibit 10.1

 

Execution Version

 

CUSIP #76217YAA2

 

$300,000,000 AMENDED AND RESTATED REVOLVING CREDIT FACILITY

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

by and among

 

RHINO ENERGY LLC

 

and

 

THE GUARANTORS PARTY HERETO

 

and

 

THE LENDERS PARTY HERETO

 

and

 

PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent

 

and

 

PNC CAPITAL MARKETS LLC and

UNION BANK, N.A.,

as Joint Lead Arrangers and Joint Bookrunners

 

and

 

UNION BANK, N.A., as Syndication Agent

 

and

 

RAYMOND JAMES BANK, FSB,

WELLS FARGO BANK, NATIONAL ASSOCIATION and

THE HUNTINGTON NATIONAL BANK

as Co-Documentation Agents

 

Dated as of July 29, 2011

 











 

TABLE OF CONTENTS

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
1.
    	
CERTAIN DEFINITIONS
    	
1
    
	
 
    	
1.1
    	
Certain Definitions
    	
1
    
	
 
    	
1.2
    	
Construction
    	
24
    
	
 
    	
1.3
    	
Accounting Principles; Changes in GAAP
    	
25
    
	
 
    	
 
    	
 
    
	
2.
    	
REVOLVING CREDIT AND SWING LOAN FACILITIES
    	
25
    
	
 
    	
2.1
    	
Revolving Credit Commitments
    	
25
    
	
 
    	
 
    	
2.1.1
    	
Revolving Credit Loans
    	
25
    
	
 
    	
 
    	
2.1.2
    	
Swing Loan Commitment
    	
26
    
	
 
    	
2.2
    	
Nature of Lenders’ Obligations with Respect to Revolving   Credit Loans
    	
26
    
	
 
    	
2.3
    	
Commitment Fees
    	
26
    
	
 
    	
2.4
    	
Intentionally Omitted
    	
26
    
	
 
    	
2.5
    	
Revolving Credit Loan Requests; Swing Loan Requests
    	
26
    
	
 
    	
 
    	
2.5.1
    	
Revolving Credit Loan Requests
    	
26
    
	
 
    	
 
    	
2.5.2
    	
Swing Loan Requests
    	
27
    
	
 
    	
2.6
    	
Making Revolving Credit Loans and Swing Loans; Presumptions   by the Administrative Agent; Repayment of Revolving Credit Loans; Borrowings   to Repay Swing Loans
    	
27
    
	
 
    	
 
    	
2.6.1
    	
Making Revolving Credit Loans
    	
27
    
	
 
    	
 
    	
2.6.2
    	
Presumptions by the Administrative Agent
    	
28
    
	
 
    	
 
    	
2.6.3
    	
Making Swing Loans
    	
28
    
	
 
    	
 
    	
2.6.4
    	
Repayment of Revolving Credit Loans
    	
28
    
	
 
    	
 
    	
2.6.5
    	
Borrowings to Repay Swing Loans
    	
28
    
	
 
    	
 
    	
2.6.6
    	
Swing Loans Under Cash Management Agreements
    	
29
    
	
 
    	
2.7
    	
Notes
    	
29
    
	
 
    	
2.8
    	
Use of Proceeds
    	
29
    
	
 
    	
2.9
    	
Letter of Credit Subfacility
    	
29
    
	
 
    	
 
    	
2.9.1
    	
Issuance of Letters of Credit
    	
29
    
	
 
    	
 
    	
2.9.2
    	
Letter of Credit Fees
    	
30
    
	
 
    	
 
    	
2.9.3
    	
Disbursements, Reimbursement
    	
30
    
	
 
    	
 
    	
2.9.4
    	
Repayment of Participation Advances
    	
32
    
	
 
    	
 
    	
2.9.5
    	
Documentation
    	
32
    
	
 
    	
 
    	
2.9.6
    	
Determinations to Honor Drawing Requests
    	
32
    
	
 
    	
 
    	
2.9.7
    	
Nature of Participation and Reimbursement Obligations
    	
33
    
	
 
    	
 
    	
2.9.8
    	
Indemnity
    	
34
    
	
 
    	
 
    	
2.9.9
    	
Liability for Acts and Omissions
    	
35
    
	
 
    	
 
    	
2.9.10
    	
Issuing Lender Reporting Requirements
    	
36
    
	
 
    	
2.10
    	
Defaulting Lenders
    	
36
    
	
 
    	
2.11
    	
Increase in Revolving Credit Commitments
    	
38
    
	
 
    	
2.12
    	
Reduction of Revolving Credit Commitment
    	
40
    


 











 

	
3.
    	
RESERVED
    	
40
    
	
 
    	
 
    	
 
    
	
4.
    	
INTEREST RATES
    	
40
    
	
 
    	
4.1
    	
Interest Rate Options
    	
40
    
	
 
    	
 
    	
4.1.1
    	
Revolving Credit Interest Rate Options; Swing Line Interest   Rate
    	
40
    
	
 
    	
 
    	
4.1.2
    	
Intentionally Omitted
    	
41
    
	
 
    	
 
    	
4.1.3
    	
Rate Quotations
    	
41
    
	
 
    	
4.2
    	
Interest Periods
    	
41
    
	
 
    	
 
    	
4.2.1
    	
Amount of Borrowing Tranche
    	
41
    
	
 
    	
 
    	
4.2.2
    	
Renewals
    	
41
    
	
 
    	
4.3
    	
Interest After Default
    	
41
    
	
 
    	
 
    	
4.3.1
    	
Letter of Credit Fees, Interest Rate
    	
41
    
	
 
    	
 
    	
4.3.2
    	
Other Obligations
    	
41
    
	
 
    	
 
    	
4.3.3
    	
Acknowledgment
    	
41
    
	
 
    	
4.4
    	
LIBOR Rate Unascertainable; Illegality; Increased Costs;   Deposits Not Available
    	
42
    
	
 
    	
 
    	
4.4.1
    	
Unascertainable
    	
42
    
	
 
    	
 
    	
4.4.2
    	
Illegality; Increased Costs; Deposits Not Available
    	
42
    
	
 
    	
 
    	
4.4.3
    	
Administrative Agent’s and Lender’s Rights
    	
42
    
	
 
    	
4.5
    	
Selection of Interest Rate Options
    	
43
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
5.
    	
PAYMENTS
    	
43
    
	
 
    	
5.1
    	
Payments
    	
43
    
	
 
    	
5.2
    	
Pro Rata Treatment of Lenders
    	
43
    
	
 
    	
5.3
    	
Sharing of Payments by Lenders
    	
44
    
	
 
    	
5.4
    	
Presumptions by Administrative Agent
    	
44
    
	
 
    	
5.5
    	
Interest Payment Dates
    	
45
    
	
 
    	
5.6
    	
Voluntary Prepayments
    	
45
    
	
 
    	
 
    	
5.6.1
    	
Right to Prepay
    	
45
    
	
 
    	
 
    	
5.6.2
    	
Replacement of a Lender
    	
46
    
	
 
    	
5.7
    	
Intentionally Omitted
    	
46
    
	
 
    	
5.8
    	
Increased Costs
    	
46
    
	
 
    	
 
    	
5.8.1
    	
Increased Costs Generally
    	
46
    
	
 
    	
 
    	
5.8.2
    	
Capital and Liquidity Requirements
    	
47
    
	
 
    	
 
    	
5.8.3
    	
Certificates for Reimbursement; Repayment of Outstanding   Loans; Borrowing of New Loans
    	
47
    
	
 
    	
 
    	
5.8.4
    	
Delay in Requests
    	
47
    
	
 
    	
5.9
    	
Taxes
    	
48
    
	
 
    	
 
    	
5.9.1
    	
Payments Free of Taxes
    	
48
    
	
 
    	
 
    	
5.9.2
    	
Payment of Other Taxes by the Borrower
    	
48
    
	
 
    	
 
    	
5.9.3
    	
Indemnification by the Borrower
    	
48
    
	
 
    	
 
    	
5.9.4
    	
Evidence of Payments
    	
48
    
	
 
    	
 
    	
5.9.5
    	
Status of Lenders
    	
48
    
	
 
    	
5.10
    	
Indemnity
    	
50
    
	
 
    	
5.11
    	
Settlement Date Procedures
    	
50
    


 

ii











 

	
6.
    	
REPRESENTATIONS AND WARRANTIES
    	
51
    
	
 
    	
6.1
    	
Representations and Warranties
    	
51
    
	
 
    	
 
    	
6.1.1
    	
Organization and Qualification
    	
51
    
	
 
    	
 
    	
6.1.2
    	
Capitalization and Ownership
    	
51
    
	
 
    	
 
    	
6.1.3
    	
Subsidiaries
    	
51
    
	
 
    	
 
    	
6.1.4
    	
Power and Authority
    	
52
    
	
 
    	
 
    	
6.1.5
    	
Validity and Binding Effect
    	
52
    
	
 
    	
 
    	
6.1.6
    	
No Conflict
    	
52
    
	
 
    	
 
    	
6.1.7
    	
Litigation
    	
52
    
	
 
    	
 
    	
6.1.8
    	
Title to Properties
    	
52
    
	
 
    	
 
    	
6.1.9
    	
Financial Statements
    	
53
    
	
 
    	
 
    	
6.1.10
    	
Use of Proceeds; Margin Stock
    	
53
    
	
 
    	
 
    	
6.1.11
    	
Full Disclosure
    	
54
    
	
 
    	
 
    	
6.1.12
    	
Taxes
    	
54
    
	
 
    	
 
    	
6.1.13
    	
Consents and Approvals
    	
54
    
	
 
    	
 
    	
6.1.14
    	
No Event of Default; Compliance with Instruments
    	
54
    
	
 
    	
 
    	
6.1.15
    	
Patents, Trademarks, Copyrights, Licenses, Etc.
    	
55
    
	
 
    	
 
    	
6.1.16
    	
Solvency
    	
55
    
	
 
    	
 
    	
6.1.17
    	
Intentionally Omitted
    	
55
    
	
 
    	
 
    	
6.1.18
    	
Insurance
    	
55
    
	
 
    	
 
    	
6.1.19
    	
Compliance with Laws
    	
55
    
	
 
    	
 
    	
6.1.20
    	
Material Contracts; Burdensome Restrictions
    	
55
    
	
 
    	
 
    	
6.1.21
    	
Investment Companies; Regulated Entities
    	
56
    
	
 
    	
 
    	
6.1.22
    	
Plans and Benefit Arrangements
    	
56
    
	
 
    	
 
    	
6.1.23
    	
Employment Matters
    	
57
    
	
 
    	
 
    	
6.1.24
    	
Environmental Matters
    	
57
    
	
 
    	
 
    	
6.1.25
    	
Bonding Capacity
    	
59
    
	
 
    	
 
    	
6.1.26
    	
Permit Blockage
    	
59
    
	
 
    	
 
    	
6.1.27
    	
Security Interests
    	
59
    
	
 
    	
 
    	
6.1.28
    	
Mortgage Liens
    	
60
    
	
 
    	
 
    	
6.1.29
    	
Status of the Pledged Collateral
    	
60
    
	
 
    	
 
    	
6.1.30
    	
Senior Debt Status
    	
60
    
	
 
    	
 
    	
6.1.31
    	
Anti-Terrorism Laws
    	
61
    
	
 
    	
6.2
    	
Updates to Schedules
    	
61
    
	
 
    	
 
    	
 
    
	
7.
    	
CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
    	
62
    
	
 
    	
7.1
    	
First Loans and Letters of Credit
    	
62
    
	
 
    	
 
    	
7.1.1
    	
Officer’s Certificate
    	
62
    
	
 
    	
 
    	
7.1.2
    	
Secretary’s Certificate
    	
62
    
	
 
    	
 
    	
7.1.3
    	
Delivery of Loan Documents
    	
63
    
	
 
    	
 
    	
7.1.4
    	
Opinion of Counsel
    	
63
    
	
 
    	
 
    	
7.1.5
    	
Legal Details
    	
63
    
	
 
    	
 
    	
7.1.6
    	
Payment of Fees
    	
63
    
	
 
    	
 
    	
7.1.7
    	
Environmental Matters
    	
63
    
	
 
    	
 
    	
7.1.8
    	
Capitalization of Borrower
    	
64
    
	
 
    	
 
    	
7.1.9
    	
Consents
    	
64
    


 

iii











 

	
 
    	
 
    	
7.1.10
    	
Officer’s Certificate Regarding MACs
    	
64
    
	
 
    	
 
    	
7.1.11
    	
No Violation of Laws
    	
64
    
	
 
    	
 
    	
7.1.12
    	
No Actions or Proceedings
    	
64
    
	
 
    	
 
    	
7.1.13
    	
Insurance Policies; Certificates of Insurance; Endorsements
    	
64
    
	
 
    	
 
    	
7.1.14
    	
UCC, Lien and Judgment Searches; Title Reports
    	
65
    
	
 
    	
 
    	
7.1.15
    	
Sources and Uses
    	
65
    
	
 
    	
 
    	
7.1.16
    	
Filing Receipts
    	
65
    
	
 
    	
 
    	
7.1.17
    	
Administrative Questionnaire
    	
65
    
	
 
    	
 
    	
7.1.18
    	
Financial Statements
    	
65
    
	
 
    	
 
    	
7.1.19
    	
Existing Credit Agreement
    	
65
    
	
 
    	
 
    	
7.1.20
    	
Solvency Certificate
    	
66
    
	
 
    	
 
    	
7.1.21
    	
Lessor’s Consents
    	
66
    
	
 
    	
 
    	
7.1.22
    	
ERISA and Labor Matters
    	
66
    
	
 
    	
 
    	
7.1.23
    	
Appraisals; Flood Insurance
    	
66
    
	
 
    	
 
    	
7.1.24
    	
Compliance Certificate
    	
66
    
	
 
    	
7.2
    	
Each Loan or Letter of Credit
    	
66
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
8.
    	
COVENANTS
    	
67
    
	
 
    	
8.1
    	
Affirmative Covenants
    	
67
    
	
 
    	
 
    	
8.1.1
    	
Preservation of Existence, Etc.
    	
67
    
	
 
    	
 
    	
8.1.2
    	
Payment of Liabilities, Including Taxes, Etc.
    	
67
    
	
 
    	
 
    	
8.1.3
    	
Maintenance of Insurance
    	
67
    
	
 
    	
 
    	
8.1.4
    	
Maintenance of Properties and Leases
    	
68
    
	
 
    	
 
    	
8.1.5
    	
Maintenance of Patents, Trademarks, Etc.
    	
68
    
	
 
    	
 
    	
8.1.6
    	
Visitation Rights
    	
68
    
	
 
    	
 
    	
8.1.7
    	
Keeping of Records and Books of Account
    	
68
    
	
 
    	
 
    	
8.1.8
    	
Plans and Benefit Arrangements
    	
69
    
	
 
    	
 
    	
8.1.9
    	
Compliance with Laws
    	
69
    
	
 
    	
 
    	
8.1.10
    	
Use of Proceeds
    	
69
    
	
 
    	
 
    	
8.1.11
    	
Further Assurances
    	
69
    
	
 
    	
 
    	
8.1.12
    	
Subordination of Intercompany Loans
    	
69
    
	
 
    	
 
    	
8.1.13
    	
Anti-Terrorism Laws
    	
70
    
	
 
    	
 
    	
8.1.14
    	
Collateral and Additional Collateral, Etc.
    	
70
    
	
 
    	
8.2
    	
Negative Covenants
    	
72
    
	
 
    	
 
    	
8.2.1
    	
Indebtedness
    	
72
    
	
 
    	
 
    	
8.2.2
    	
Liens
    	
72
    
	
 
    	
 
    	
8.2.3
    	
Guaranties
    	
72
    
	
 
    	
 
    	
8.2.4
    	
Loans and Investments
    	
73
    
	
 
    	
 
    	
8.2.5
    	
Dividends and Related Distributions
    	
73
    
	
 
    	
 
    	
8.2.6
    	
Liquidations, Mergers, Consolidations, Acquisitions
    	
74
    
	
 
    	
 
    	
8.2.7
    	
Dispositions of Assets or Subsidiaries
    	
75
    
	
 
    	
 
    	
8.2.8
    	
Affiliate Transactions
    	
76
    
	
 
    	
 
    	
8.2.9
    	
Subsidiaries, Partnerships and Joint Ventures
    	
76
    
	
 
    	
 
    	
8.2.10
    	
Continuation of or Change in Business
    	
77
    
	
 
    	
 
    	
8.2.11
    	
Plans and Benefit Arrangements
    	
77
    
	
 
    	
 
    	
8.2.12
    	
Fiscal Year
    	
78
    


 

iv











 

	
 
    	
 
    	
8.2.13
    	
Issuance of Stock, Partnership Interests or Member   Interests
    	
78
    
	
 
    	
 
    	
8.2.14
    	
Changes in Organizational Documents
    	
78
    
	
 
    	
 
    	
8.2.15
    	
Intentionally Omitted
    	
78
    
	
 
    	
 
    	
8.2.16
    	
Operating Leases
    	
78
    
	
 
    	
 
    	
8.2.17
    	
Maximum Leverage Ratio
    	
78
    
	
 
    	
 
    	
8.2.18
    	
Minimum Interest Coverage Ratio
    	
78
    
	
 
    	
 
    	
8.2.19
    	
No Limitation on Subsidiary Dividends and Distributions
    	
78
    
	
 
    	
 
    	
8.2.20
    	
Negative Pledges
    	
78
    
	
 
    	
8.3
    	
Reporting Requirements
    	
79
    
	
 
    	
 
    	
8.3.1
    	
Quarterly Financial Statements
    	
79
    
	
 
    	
 
    	
8.3.2
    	
Annual Financial Statements
    	
79
    
	
 
    	
 
    	
8.3.3
    	
Certificate of the Borrower
    	
79
    
	
 
    	
 
    	
8.3.4
    	
Notice of Default
    	
80
    
	
 
    	
 
    	
8.3.5
    	
Notice of Litigation
    	
80
    
	
 
    	
 
    	
8.3.6
    	
Certain Events
    	
80
    
	
 
    	
 
    	
8.3.7
    	
Budgets, Forecasts, Other Reports and Information
    	
80
    
	
 
    	
 
    	
8.3.8
    	
Notices Regarding Plans and Benefit Arrangements
    	
80
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
9.
    	
DEFAULT
    	
82
    
	
 
    	
9.1
    	
Events of Default
    	
82
    
	
 
    	
 
    	
9.1.1
    	
Payments Under Loan Documents
    	
82
    
	
 
    	
 
    	
9.1.2
    	
Breach of Warranty
    	
82
    
	
 
    	
 
    	
9.1.3
    	
Breach of Negative Covenants or Visitation Rights
    	
82
    
	
 
    	
 
    	
9.1.4
    	
Breach of Other Covenants
    	
82
    
	
 
    	
 
    	
9.1.5
    	
Defaults in Other Agreements or Indebtedness
    	
82
    
	
 
    	
 
    	
9.1.6
    	
Final Judgments or Orders
    	
83
    
	
 
    	
 
    	
9.1.7
    	
Loan Document Unenforceable
    	
83
    
	
 
    	
 
    	
9.1.8
    	
Uninsured Losses; Proceedings Against Assets
    	
83
    
	
 
    	
 
    	
9.1.9
    	
Notice of Lien or Assessment
    	
83
    
	
 
    	
 
    	
9.1.10
    	
Insolvency
    	
83
    
	
 
    	
 
    	
9.1.11
    	
Events Relating to Plans and Benefit Arrangements
    	
83
    
	
 
    	
 
    	
9.1.12
    	
Cessation of Business
    	
84
    
	
 
    	
 
    	
9.1.13
    	
Change of Control
    	
84
    
	
 
    	
 
    	
9.1.14
    	
Involuntary Proceedings
    	
84
    
	
 
    	
 
    	
9.1.15
    	
Voluntary Proceedings
    	
84
    
	
 
    	
 
    	
9.1.16
    	
Loss of Bonding Capability
    	
84
    
	
 
    	
9.2
    	
Consequences of Event of Default
    	
85
    
	
 
    	
 
    	
9.2.1
    	
Events of Default Other Than Bankruptcy, Insolvency or   Reorganization Proceedings
    	
85
    
	
 
    	
 
    	
9.2.2
    	
Bankruptcy, Insolvency or Reorganization Proceedings
    	
85
    
	
 
    	
 
    	
9.2.3
    	
Set-off
    	
85
    
	
 
    	
 
    	
9.2.4
    	
Suits, Actions, Proceedings
    	
86
    
	
 
    	
 
    	
9.2.5
    	
Application of Proceeds; Collateral Sharing
    	
86
    
	
 
    	
 
    	
9.2.6
    	
Other Rights and Remedies
    	
87
    
	
 
    	
9.3
    	
Notice of Sale
    	
87
    


 

v











 

	
10.
    	
THE ADMINISTRATIVE AGENT
    	
87
    
	
 
    	
10.1
    	
Appointment and Authority
    	
87
    
	
 
    	
10.2
    	
Rights as a Lender
    	
87
    
	
 
    	
10.3
    	
Exculpatory Provisions
    	
87
    
	
 
    	
10.4
    	
Reliance by Administrative Agent
    	
88
    
	
 
    	
10.5
    	
Delegation of Duties
    	
89
    
	
 
    	
10.6
    	
Resignation of Administrative Agent
    	
89
    
	
 
    	
10.7
    	
Non-Reliance on Administrative Agent and Other Lenders
    	
90
    
	
 
    	
10.8
    	
No Other Duties, etc.
    	
90
    
	
 
    	
10.9
    	
Administrative Agent’s Fee
    	
90
    
	
 
    	
10.10
    	
Authorization to Release Collateral and Guarantors
    	
90
    
	
 
    	
10.11
    	
No Reliance on Administrative Agent’s Customer   Identification Program
    	
90
    
	
 
    	
 
    	
 
    	
 
    
	
11.
    	
MISCELLANEOUS
    	
91
    
	
 
    	
11.1
    	
Modifications, Amendments or Waivers
    	
91
    
	
 
    	
 
    	
11.1.1
    	
Increase of Commitment
    	
91
    
	
 
    	
 
    	
11.1.2
    	
Extension of Payment; Reduction of Principal Interest or   Fees; Modification of Terms of Payment
    	
91
    
	
 
    	
 
    	
11.1.3
    	
Release of Collateral or Guarantor
    	
91
    
	
 
    	
 
    	
11.1.4
    	
Miscellaneous
    	
92
    
	
 
    	
11.2
    	
No Implied Waivers; Cumulative Remedies
    	
92
    
	
 
    	
11.3
    	
Expenses; Indemnity; Damage Waiver
    	
92
    
	
 
    	
 
    	
11.3.1
    	
Costs and Expenses
    	
92
    
	
 
    	
 
    	
11.3.2
    	
Indemnification by the Borrower
    	
93
    
	
 
    	
 
    	
11.3.3
    	
Reimbursement by Lenders
    	
93
    
	
 
    	
 
    	
11.3.4
    	
Waiver of Consequential Damages, Etc.
    	
94
    
	
 
    	
 
    	
11.3.5
    	
Payments
    	
94
    
	
 
    	
11.4
    	
Holidays
    	
94
    
	
 
    	
11.5
    	
Notices; Effectiveness; Electronic Communication
    	
94
    
	
 
    	
 
    	
11.5.1
    	
Notices Generally
    	
94
    
	
 
    	
 
    	
11.5.2
    	
Electronic Communications
    	
95
    
	
 
    	
 
    	
11.5.3
    	
Change of Address, Etc.
    	
95
    
	
 
    	
11.6
    	
Severability
    	
95
    
	
 
    	
11.7
    	
Duration; Survival
    	
95
    
	
 
    	
11.8
    	
Successors and Assigns
    	
95
    
	
 
    	
 
    	
11.8.1
    	
Successors and Assigns Generally
    	
95
    
	
 
    	
 
    	
11.8.2
    	
Assignments by Lenders
    	
96
    
	
 
    	
 
    	
11.8.3
    	
Register
    	
97
    
	
 
    	
 
    	
11.8.4
    	
Participations
    	
98
    
	
 
    	
 
    	
11.8.5
    	
Limitations upon Participant Rights Successors and Assigns   Generally
    	
98
    
	
 
    	
 
    	
11.8.6
    	
Certain Pledges; Successors and Assigns Generally
    	
98
    
	
 
    	
11.9
    	
Confidentiality
    	
98
    
	
 
    	
 
    	
11.9.1
    	
General
    	
98
    
	
 
    	
 
    	
11.9.2
    	
Sharing Information With Affiliates of the Lenders
    	
99
    
	
 
    	
11.10
    	
Joinder of Guarantors
    	
99
    


 

vi











 

	
 
    	
11.11
    	
Calculations
    	
100
    
	
 
    	
11.12
    	
Counterparts; Integration; Effectiveness
    	
100
    
	
 
    	
 
    	
11.12.1
    	
Counterparts; Integration; Effectiveness
    	
100
    
	
 
    	
11.13
    	
CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE;   SERVICE OF PROCESS; WAIVER OF JURY TRIAL
    	
100
    
	
 
    	
 
    	
11.13.1
    	
Governing Law
    	
100
    
	
 
    	
 
    	
11.13.2
    	
SUBMISSION TO JURISDICTION
    	
100
    
	
 
    	
 
    	
11.13.3
    	
WAIVER OF VENUE
    	
101
    
	
 
    	
 
    	
11.13.4
    	
SERVICE OF PROCESS
    	
101
    
	
 
    	
 
    	
11.13.5
    	
WAIVER OF JURY TRIAL
    	
101
    
	
 
    	
11.14
    	
USA Patriot Act Notice
    	
102
    


 

vii











 

LIST OF SCHEDULES AND EXHIBITS

 

	
SCHEDULES
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
SCHEDULE   1.1(A)
    	
-
    	
PRICING   GRID
    
	
SCHEDULE   1.1(B)
    	
-
    	
COMMITMENTS   OF LENDERS AND ADDRESSES FOR NOTICES
    
	
SCHEDULE   1.1(P)
    	
-
    	
PERMITTED   LIENS
    
	
SCHEDULE   2.9.1
    	
-
    	
EXISTING   LETTERS OF CREDIT
    
	
SCHEDULE   6.1.1
    	
-
    	
QUALIFICATIONS   TO DO BUSINESS
    
	
SCHEDULE   6.1.2
    	
-
    	
CAPITALIZATION
    
	
SCHEDULE   6.1.3
    	
-
    	
SUBSIDIARIES
    
	
SCHEDULE   6.1.13
    	
-
    	
CONSENTS   AND APPROVALS
    
	
SCHEDULE   6.1.15
    	
-
    	
PATENTS,   TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
    
	
SCHEDULE   6.1.18
    	
-
    	
INSURANCE   POLICIES
    
	
SCHEDULE   6.1.20
    	
-
    	
MATERIAL   CONTRACTS
    
	
SCHEDULE   6.1.22
    	
-
    	
EMPLOYEE   BENEFIT PLAN DISCLOSURES
    
	
SCHEDULE   6.1.24
    	
-
    	
ENVIRONMENTAL   DISCLOSURES
    
	
SCHEDULE   6.1.28
    	
-
    	
EXCLUDED   PROPERTY
    
	
SCHEDULE   6.1.29
    	
-
    	
PARTNERSHIP   AGREEMENTS; LLC AGREEMENTS
    
	
SCHEDULE   8.1.14
    	
-
    	
ELK   HORN PROPERTY AND OKLAHOMA PROPERTY
    
	
SCHEDULE   8.2.1
    	
-
    	
PERMITTED   INDEBTEDNESS
    
	
SCHEDULE   8.2.4(vi)
    	
-
    	
EXISTING   INVESTMENTS
    
	
 
    	
 
    	
 
    
	
EXHIBITS
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
EXHIBIT 1.1(A)
    	
-
    	
ASSIGNMENT   AND ASSUMPTION AGREEMENT
    
	
EXHIBIT 1.1(G)(1)
    	
-
    	
GUARANTOR   JOINDER
    
	
EXHIBIT 1.1(G)(2)
    	
-
    	
GUARANTY   AGREEMENT
    
	
EXHIBIT 1.1(I)(1)
    	
-
    	
REGULATED   SUBSTANCES CERTIFICATE AND INDEMNITY AGREEMENT
    
	
EXHIBIT 1.1(I)(2)
    	
-
    	
INTERCOMPANY   SUBORDINATION AGREEMENT
    
	
EXHIBIT 1.1(M)
    	
-
    	
MORTGAGE
    
	
EXHIBIT 1.1(N)
    	
-
    	
SWING   LOAN NOTE
    
	
EXHIBIT 1.1(P)(1)
    	
-
    	
PATENT,   TRADEMARK AND COPYRIGHT SECURITY AGREEMENT
    
	
EXHIBIT 1.1(P)(2)
    	
-
    	
PLEDGE   AGREEMENT
    
	
EXHIBIT 1.1(P)(3)
    	
-
    	
PLEDGE   AGREEMENT (PARENT)
    
	
EXHIBIT 1.1(R)
    	
-
    	
REVOLVING   CREDIT NOTE
    
	
EXHIBIT 1.1(S)
    	
-
    	
SECURITY   AGREEMENT
    
	
EXHIBIT 2.5.1
    	
-
    	
LOAN   REQUEST
    
	
EXHIBIT 2.5.2
    	
-
    	
SWING   LOAN REQUEST
    
	
EXHIBIT 2.11
    	
-
    	
LENDER   JOINDER
    
	
EXHIBIT 7.1.4(A)
    	
-
    	
OPINION   OF COUNSEL
    
	
EXHIBIT 7.1.4(B)
    	
-
    	
OPINION   OF LOCAL COUNSEL
    
	
EXHIBIT 8.3.3
    	
-
    	
QUARTERLY   COMPLIANCE CERTIFICATE
    


 












 

AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS AMENDED AND RESTATED CREDIT AGREEMENT (as hereafter amended, the “Agreement”) is dated as of July 29, 2011 and is made by and among RHINO ENERGY LLC, a Delaware limited liability company (the “Borrower”), each of the GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined), and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders under this Agreement (hereinafter referred to in such capacity as the “Administrative Agent”).

 

WITNESSETH:

 

WHEREAS, the Borrower and the other Loan Parties (defined hereinafter) have requested the Lenders to provide a revolving credit facility to the Borrower in an aggregate principal amount not to exceed $300,000,000;

 

WHEREAS, the Lenders are willing to provide such credit upon the terms and conditions hereinafter set forth.

 

NOW THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows:

 

1.             CERTAIN DEFINITIONS

 

1.1           Certain Definitions.  In addition to words and terms defined elsewhere in this Agreement, the following words and terms shall have the following meanings, respectively, unless the context hereof clearly requires otherwise:

 

Active Operating Properties shall mean all owned and leased real property included in outstanding permits issued to any of the Loan Parties or any Subsidiary of any Loan Party.

 

Administrative Agent shall mean PNC Bank, National Association, and its successors and assigns in its capacity as the administrative agent for the Lenders.

 

Administrative Agent’s Fee shall have the meaning specified in Section 10.9 [Administrative Agent’s Fee].

 

Administrative Agent’s Letter shall have the meaning specified in Section 10.9 [Administrative Agent’s Fee].

 

Affiliate as to any specified Person shall mean any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified.  Control, as used in this definition, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, 

 











 

including the power to elect a majority of the directors or trustees of a corporation or trust, as the case may be.

 

Ancillary Security Documents shall mean all documents, instruments, environmental reports, agreements, endorsements, policies and certificates requested by the Administrative Agent and customarily delivered by any property owner in connection with a mortgage financing.  Without limiting the generality of the foregoing, examples of Ancillary Security Documents would include insurance policies or certificates regarding any collateral, title insurance policies, appraisals, lien searches, estoppel letters, flood insurance certifications, environmental audits which shall meet the Administrative Agent’s minimum requirements for phase I environmental assessments or phase II environmental assessments, as applicable, opinions of counsel, and the like.

 

Annual Statements shall have the meaning assigned to that term in Section 6.1.9(i) [Historical Statements].

 

Anti-Terrorism Laws shall mean any Laws relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing Laws may from time to time be amended, renewed, extended, or replaced).

 

Applicable Commitment Fee Rate shall mean the percentage rate per annum based on the Leverage Ratio then in effect according to the pricing grid on Schedule 1.1(A) below the heading “Commitment Fee.”

 

Applicable Letter of Credit Fee Rate shall mean the percentage rate per annum based on the Leverage Ratio then in effect according to the pricing grid on Schedule 1.1(A) below the heading “Letter of Credit Fee.”

 

Applicable Margin shall mean, as applicable:

 

(A)          the percentage spread to be added to the Base Rate applicable to Revolving Credit Loans under the Base Rate Option based on the Leverage Ratio then in effect according to the pricing grid on Schedule 1.1(A) below the heading “Revolving Credit Base Rate Spread”, or

 

(B)           the percentage spread to be added to the LIBOR Rate applicable to Revolving Credit Loans under the LIBOR Rate Option based on the Leverage Ratio then in effect according to the pricing grid on Schedule 1.1(A) below the heading “Revolving Credit LIBOR Rate Spread”.

 

Approved Fund shall mean any fund that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

2











 

Assignment and Assumption Agreement shall mean an assignment and assumption agreement entered into by a Lender and an assignee permitted under Section 11.8 [Successors and Assigns], in substantially the form of Exhibit 1.1(A).

 

Authorized Officer shall mean those individuals, designated by written notice to the Administrative Agent from the Borrower, authorized to execute notices, reports and other documents on behalf of the Loan Parties required hereunder.  The Borrower may amend such list of individuals from time to time by giving written notice of such amendment to the Administrative Agent.

 

Availability shall mean, as of the date of determination, an amount, which equals the lesser of (i) the difference (if a positive number) between the amount of the Revolving Credit Commitments as of such date, less the Revolving Facility Usage as of such date or (ii) the difference (if a positive number) between the maximum pro-forma amount of the available Revolving Credit Commitments that the Borrower could draw as of such date and remain in compliance with the covenants contained in this Agreement, less the Revolving Facility Usage as of such date

 

Base Rate shall mean, for any day, a fluctuating per annum rate of interest equal to the highest of (a) the Federal Funds Open Rate, plus 50 basis points (1⁄2 of 1.00%), and (b) the Prime Rate, and (c) the Daily LIBOR Rate, plus 100 basis points (1.00%).  Any change in the Base Rate (or any component thereof) shall take effect at the opening of business on the day such change occurs.

 

Base Rate Option shall mean the option of the Borrower to have Loans bear interest at the rate and under the terms set forth in Section 4.1.1(i) [Revolving Credit Base Rate Option].

 

Benefit Arrangement shall mean at any time an “employee benefit plan,” within the meaning of Section 3(3) of ERISA, which is neither a Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise contributed to by any member of the ERISA Group.

 

Blocked Person shall have the meaning assigned to that term in Section 6.1.31.2 [Executive Order No. 13224].

 

Borrower shall mean Rhino Energy LLC, a limited liability company organized and existing under the laws of the State of Delaware.

 

Borrowing Date shall mean, with respect to any Loan, the date for the making thereof or the renewal or conversion thereof at or to the same or a different Interest Rate Option, which shall be a Business Day.

 

Borrowing Tranche shall mean specified portions of Loans outstanding as follows:  (i) any Loans to which a LIBOR Rate Option applies which become subject to the same Interest Rate Option under the same Loan Request by the Borrower and which have the same Interest Period shall constitute one Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies shall constitute one Borrowing Tranche.

 

3











 

Business Day shall mean any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required to be closed for business in Pittsburgh, Pennsylvania or New York, New York and if the applicable Business Day relates to any Loan to which the LIBOR Rate Option applies, such day must also be a day on which dealings are carried on in the London interbank market.

 

Cash Management Agreements shall have the meaning specified in Section 2.6.6 [Swing Loans Under Cash Management Agreements].

 

CH Provider shall have the meaning assigned to that term in Section 9.2.5.2 [Collateral Sharing].

 

Change in Law shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Official Body or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Official Body; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith (whether or not having the force of Law) and (y) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of Law), in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented.

 

Change of Control shall mean the occurrence of any one or more of the following events:  (i) Wexford shall fail to own, directly or indirectly, at least 51% of the membership interests in the General Partner, (ii) the General Partner shall cease to own and control, of record and beneficially, 100% of the general partner interests in the MLP, or (iii) the MLP shall cease to own, directly or indirectly, 100% of the membership interests of the Borrower.

 

Closing Date shall mean the Business Day on which the first Loan shall be made, which shall be July       , 2011.

 

Coal Reserves shall mean any and all coal reserves (expressly excluding inventory) which could be economically and legally extracted or produced at the time of determination for which:  (a) quantity is computed from dimensions revealed in outcrops, trenches, workings or drill holes; grade and/or quality are computed from the results of detailed sampling and (b) the sites for inspection, sampling, and measurement are either:  (i) spaced so closely and the geologic character is so well defined that size, shape, depth, and mineral content of coal reserves are well-established or (ii) farther apart or are otherwise less adequately spaced, and a degree of assurance, although lower than that for proved reserves as described in the preceding clause (i), is high enough to assume continuity between points of observation, in any case by available exploration data and which meet minimum industry accepted standards, and in any case wheresoever located and whether now owned or hereafter acquired by any Loan Party.

 

4











 

Collateral shall mean the property of the Loan Parties in which Liens are to be granted under the Security Documents.

 

Collateral Agent shall have the meaning assigned to that term in Section 9.2.5.2 [Collateral Sharing].

 

Collateral Documents shall have the meaning assigned to that term in Section 9.2.5.2 [Collateral Sharing].

 

Commitment shall mean as to any Lender the aggregate of its Revolving Credit Commitment and, in the case of PNC, its Swing Loan Commitment, and Commitments shall mean the aggregate of the Revolving Credit Commitments and Swing Loan Commitment of all of the Lenders.

 

Commitment Fee shall have the meaning specified in Section 2.3 [Commitment Fees].

 

Commodity Hedge shall mean a price protection agreement:  (i) related to crude oil, diesel fuel, heating oil, coal, SO2 allowances, natural gas or other commodities used in the ordinary course of business of the Loan Parties and (ii) entered into by the Loan Parties for hedging purposes in the ordinary course of the operations of their business (and not for speculation).

 

Compliance Certificate shall have the meaning specified in Section 8.3.3 [Certificate of the Borrower].

 

Consolidated EBITDA  shall mean, for any period of determination, Consolidated Net Income for such period, (x) excluding therefrom (A) any non-cash items of gain or loss (including those items created by mandated changes in accounting treatment) and (B) in the event that the Loan Parties own less than all of the equity interests in any Person, any gain attributable to such Person except to the extent of the cash received from such Person in excess of the aggregate amount of any loans, advances and investments made by the Loan Parties to such Person during such period of determination, plus (y) the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of:  (i) Consolidated Interest Expense, (ii) income taxes, (iii) depletion and depreciation expense and (iv) amortization expense; provided, however, that for the purposes of this definition, with respect to a business acquired by the Loan Parties pursuant to a Permitted Acquisition, Consolidated EBITDA shall be calculated on a pro forma basis, using historical numbers, in accordance with GAAP as if the Permitted Acquisition had been consummated at the beginning of such period, and provided, further, that for the purposes of this definition, with respect to a business or assets disposed of by the Loan Parties pursuant to Section 8.2.7 [Dispositions of Assets or Subsidiaries], Consolidated EBITDA shall be calculated as if such disposition had been consummated at the beginning of such period.

 

Consolidated Interest Expense for any period of determination shall mean, on a consolidated basis, the sum of all interest (including the interest portion of any capitalized lease obligations) and letter of credit fees or commissions due and payable by the MLP and its consolidated Subsidiaries with regard to Indebtedness for such period.  For purposes of the above 

 

5











 

calculation, with respect to a business acquired by the Loan Parties pursuant to a Permitted Acquisition, Consolidated Interest Expense shall be calculated on a pro forma basis in accordance with GAAP as if the Indebtedness associated with the Permitted Acquisition had been incurred on the first day of such period.

 

Consolidated Net Income shall mean the net income (or deficit) of the MLP and its consolidated Subsidiaries, for the period in question, after deducting all operating expenses, provisions for all taxes and reserves (including reserves for all deferred income taxes) and all other proper deductions, all determined on a consolidated basis.

 

Consolidated Tangible Net Worth shall mean as of any date of determination total stockholders’ equity less intangible assets of the MLP and its consolidated Subsidiaries as of such date determined and consolidated in accordance with GAAP.

 

Consolidated Total Indebtedness shall mean the Indebtedness of the MLP and its consolidated Subsidiaries determined and consolidated in accordance with GAAP.  It is specifically agreed that Consolidated Total Indebtedness shall not include any obligations of the MLP and its consolidated Subsidiaries with respect to surety bonds entered into in the ordinary course of business or letters of credit delivered in lieu thereof; provided that if any such obligations become due and payable and are not paid within fifteen (15) Business Days of the due date therefor, such obligations shall be included in Consolidated Total Indebtedness.

 

Contamination shall mean the presence or release or threat of release of Regulated Substances in, on, under or emanating to or from the Property, which pursuant to Environmental Laws requires notification or reporting to an Official Body, or which pursuant to Environmental Laws requires the investigation, cleanup, removal, remediation, containment, abatement of or other response action or which otherwise constitutes a violation of Environmental Laws.

 

Daily LIBOR Rate shall mean, for any day, the rate per annum determined by the Administrative Agent by dividing (x) the Published Rate by (y) a number equal to 1.00 minus the LIBOR Reserve Percentage on such day.

 

Defaulting Lender shall mean any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swing Loans or (iii) pay over to the Administrative Agent, the Issuing Lender, PNC (as the Swing Loan Lender) or any Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within two Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in 

 

6











 

writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agent’s receipt of such certification in form and substance satisfactory to the Administrative Agent, (d) has become the subject of a Bankruptcy Event or (e) has failed at any time to comply with the provisions of Section 5.3 with respect to purchasing participations from the other Lenders, whereby such Lender’s share of any payment received, whether by setoff or otherwise, is in excess of its Ratable Share of such payments due and payable to all of the Lenders.

 

As used in this definition and in Section 2.10 [Defaulting Lenders], the term “Bankruptcy Event” means, with respect to any Person, such Person or such Person’s direct or indirect parent company becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person or such Person’s direct or indirect parent company by a Official Body or instrumentality thereof if, and only if, such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Official Body or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the United States of America.

 

Drawing Date shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement].

 

Environmental Complaint shall mean any written complaint by any Person or Official Body setting forth a cause of action for personal injury or property damage, natural resource damage, contribution or indemnity for response costs, civil or administrative penalties, criminal fines or penalties, or declaratory or equitable relief arising under any Environmental Laws or any order, notice of violation, citation, subpoena, request for information or other written notice or demand of any type issued by an Official Body pursuant to any Environmental Laws.

 

Environmental Laws shall mean all federal, state, local and foreign Laws and any consent decrees, settlement agreements, judgments, orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to:  (i) pollution or pollution control; (ii) protection of human health or the environment; (iii) employee safety in the workplace; (iv) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, transport, storage, collection, distribution, disposal or release or threat of release of Regulated Substances; (v) the presence of 

 

7











 

Contamination; (vi) the protection of endangered or threatened species; and (vii) the protection of Environmentally Sensitive Areas.

 

Environmentally Sensitive Area shall mean:  (i) any wetland as defined by applicable Environmental Laws; (ii) any area designated as a coastal zone pursuant to applicable Laws, including Environmental Laws; (iii) any area of historic or archeological significance or scenic area as defined or designated by applicable Laws, including Environmental Laws; (iv) habitats of endangered species or threatened species as designated by applicable Laws, including Environmental Laws; or (v) a floodplain or other flood hazard area as defined pursuant to any applicable Laws.

 

ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.

 

ERISA Group shall mean, at any time, the Borrower and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with the Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code.

 

Event of Default shall mean any of the events described in Section 9.1 [Events of Default] and referred to therein as an “Event of Default.”

 

Excluded Property shall have the meaning assigned to that term in Section 6.1.28 [Mortgage Liens].

 

Excluded Subsidiaries shall mean individually and collectively Rhino Energy WV, LLC, Rhino Eastern LLC and Rockhouse Land LLC and any of their respective Subsidiaries now existing or hereafter acquired.

 

Excluded Taxes shall mean, with respect to the Administrative Agent, any Lender, the Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 5.9.5 [Status of Lenders], except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.9.1 [Payment Free of Taxes].

 

8












 

Executive Order No. 13224 shall mean the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

 

Existing Credit Agreement shall have the meaning ascribed to such term in Section 7.1.19 Termination of Existing Loan Agreements].

 

Expiration Date shall mean, with respect to the Revolving Credit Commitments,                         , 2016.

 

Federal Funds Effective Rate for any day shall mean the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement; provided, if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds Effective Rate for the last day on which such rate was announced.

 

Federal Funds Open Rate for any day shall mean the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by the Administrative Agent (for purposes of this definition, an “Alternate Source”) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error); provided however, that if such day is not a Business Day, the Federal Funds Open Rate for such day shall be the “open” rate on the immediately preceding Business Day.  If and when the Federal Funds Open Rate changes, the rate of interest hereunder will change automatically without notice to the Borrower, effective on the date of any such change.

 

Financial Projections shall have the meaning assigned to that term in Section 6.1.9(ii) [Financial Projections].

 

Financial Service Product Provider shall have the meaning assigned to that term in Section 9.2.5.2 [Collateral Sharing].

 

Flood Laws shall mean all applicable Laws relating to policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and other Laws related thereto.

 

9











 

Foreign Lender shall mean any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

GAAP shall mean generally accepted accounting principles as are in effect from time to time, subject to the provisions of Section 1.3 [Accounting Principles], and applied on a consistent basis both as to classification of items and amounts.

 

General Partner shall mean Rhino GP LLC, a Delaware limited liability company.

 

Guarantor shall mean each of the parties to this Agreement which is designated as a “Guarantor” on the signature page hereof and each other Person which joins this Agreement as a Guarantor after the date hereof, specifically excluding however, the Excluded Subsidiaries.

 

Guarantor Joinder shall mean a joinder by a Person as a Guarantor under the Loan Documents in the form of Exhibit 1.1(G)(1).

 

Guaranty of any Person shall mean any obligation of such Person guaranteeing or in effect guaranteeing any liability or obligation of any other Person in any manner, whether directly or indirectly, including any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other form of assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business.

 

Guaranty Agreement shall mean the Guaranty and Suretyship Agreement in substantially the form of Exhibit 1.1(G)(2) executed and delivered by each of the Guarantors to the Administrative Agent for the benefit of the Lenders.

 

Hedge Liabilities shall have the meaning assigned to that term in the definition of Hedging Transaction.

 

Hedging Transaction shall mean any of the following transactions by the Borrower or any of its Subsidiaries:  any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction or any combination of the foregoing transactions, including any Interest Rate Hedge, any Commodity Hedge or any Other Lender Provided Financial Service Product . The liabilities of the Loan Parties to the provider of any Lender-Provided Interest Rate Hedge, Lender-Provided Commodity Hedge and/or Other Lender Provided Financial Service Product (the “Hedge Liabilities”) shall be “Obligations” hereunder, guaranteed obligations under the Guaranty Agreement and secured obligations under all other Loan Documents and otherwise treated as Obligations for purposes of each of the other Loan Documents.  All Liens securing the Hedge Liabilities provided by a Lender or an affiliate thereof shall be pari passu with the Liens securing all other Obligations under this Agreement and the other Loan Documents.

 

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Historical Statements shall have the meaning assigned to that term in Section 6.1.9(i) [Historical Statements].

 

Hydrocarbon Auxiliary Assets and Activities means (i) equipment or infrastructure related to Hydrocarbons or Hydrocarbon Interests, (ii) assets and activities germane to mid-stream businesses involving Hydrocarbons or Hydrocarbon Interests, (iii) oil and gas services businesses and (iv) the exploration, mining and development of materials used in the extraction of Hydrocarbons.

 

Hydrocarbon Interests means all rights, titles and interests in and to oil and gas leases, oil, gas and mineral leases, other Hydrocarbon leases, mineral interests, mineral servitudes, overriding royalty interests, royalty interests, net profits interests, production payment interests, and other similar interests, but excluding coal.

 

Hydrocarbons means, collectively, oil, gas, coalbed methane, oil shale, oil sands, casinghead gas, drip gasoline, natural gasoline, condensate, distillate and all other liquid or gaseous hydrocarbons and related minerals and all products therefrom, in each case whether in a natural or a processed state, but excluding coal.

 

Increasing Lender shall have the meaning assigned to that term in Section 2.11.

 

Indebtedness shall mean, as to any Person at any time, any and all indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of:  (i) borrowed money, (ii) amounts raised under or liabilities in respect of any note purchase or acceptance credit facility, (iii) reimbursement obligations (contingent or otherwise) under any letter of credit, Hedging Transaction, currency swap agreement, interest rate swap, cap, collar or floor agreement or other interest rate management device, (iv) any other transaction (including forward sale or purchase agreements, deferred purchase price arrangement, title retention device, capitalized leases and conditional sales agreements) having the commercial effect of a borrowing of money entered into by such Person to finance its operations or capital requirements (but not including trade payables and accrued expenses incurred in the ordinary course of business which are not represented by a promissory note or other evidence of indebtedness and which are not more than thirty (30) days past due), and (v) any Guaranty of Indebtedness for borrowed money.

 

Indemnified Taxes shall mean Taxes other than Excluded Taxes.

 

Indemnitee shall have the meaning specified in Section 11.3.2 [Indemnification by the Borrower].

 

Indemnity shall mean the Indemnity Agreement in substantially the form of Exhibit 1.1(I)(1) among the Lenders, the Administrative Agent and the Loan Parties relating to possible environmental liabilities associated with any of the Property.

 

Ineligible Security shall mean any security which may not be underwritten or dealt in by member banks of the Federal Reserve System under Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.

 

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Information shall mean all information received from the Loan Parties or any of their Subsidiaries relating to the Loan Parties or any of such Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the Issuing Lender on a non-confidential basis prior to disclosure by the Loan Parties or any of their Subsidiaries, provided that, in the case of information received from the Loan Parties or any of their Subsidiaries after the date of this Agreement, such information is clearly identified at the time of delivery as confidential.

 

Insolvency Proceeding shall mean, with respect to any Person, (a) a case, action or proceeding with respect to such Person (i) before any court or any other Official Body under any bankruptcy, insolvency, reorganization or other similar Law now or hereafter in effect, or (ii) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or otherwise relating to the liquidation, dissolution, winding-up or relief of such Person, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of such Person’s creditors generally or any substantial portion of its creditors; undertaken under any Law.

 

Intercompany Subordination Agreement shall mean a Subordination Agreement among the Loan Parties in the form attached hereto as Exhibit 1.1(I)(2).

 

Interest Coverage Ratio shall mean the ratio of Consolidated EBITDA to Consolidated Interest Expense, determined as of the end of each fiscal quarter of the MLP for the four fiscal quarters then ended.

 

Interest Period shall mean the period of time selected by the Borrower in connection with (and to apply to) any election permitted hereunder by the Borrower to have Revolving Credit Loans bear interest under the LIBOR Rate Option.  Subject to the last sentence of this definition, such period shall be one, two, three or six Months.  Such Interest Period shall commence on the effective date of such Interest Rate Option, which shall be (i) the Borrowing Date if the Borrower is requesting new Loans, or (ii) the date of renewal of or conversion to the LIBOR Rate Option if the Borrower is renewing or converting to the LIBOR Rate Option applicable to outstanding Loans.  Notwithstanding the second sentence hereof: (A) any Interest Period which would otherwise end on a date which is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (B) the Borrower shall not select, convert to or renew an Interest Period for any portion of the Loans that would end after the Expiration Date.

 

Interest Rate Hedge shall mean an interest rate exchange, collar, cap, swap, adjustable strike cap, adjustable strike corridor or similar agreements entered into by the Loan Parties or their Subsidiaries in order to provide protection to, or minimize the impact upon, the Borrower, the Guarantor and/or their Subsidiaries of increasing floating rates of interest applicable to Indebtedness.

 

Interest Rate Option shall mean any LIBOR Rate Option or Base Rate Option.

 

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Interim Statements shall have the meaning assigned to that term in Section 6.1.9(i) [Historical Statements].

 

Internal Revenue Code shall mean the Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.

 

IRH Provider shall have the meaning assigned to that term in Section 9.2.5.2 [Collateral Sharing]

 

IRS shall mean the Internal Revenue Service.

 

Issuing Lender shall mean PNC, in its individual capacity as issuer of Letters of Credit hereunder, and any other Lender that Borrower, Administrative Agent and such other Lender may agree from time to time issue Letters of Credit hereunder.

 

Joint Venture shall mean a corporation, partnership, limited liability company or other entity in which any Person other than the Loan Parties and their Subsidiaries holds, directly or indirectly, an equity interest.

 

Labor Contracts shall mean all employment agreements, employment contracts, collective bargaining agreements and other agreements among any Loan Party or Subsidiary of a Loan Party and its employees.

 

Law shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award by or settlement agreement with any Official Body.

 

Lender-Provided Commodity Hedge shall mean a Commodity Hedge which is provided by any Lender or any affiliate thereof and meets the following requirements:  such Commodity Hedge (i) is documented in a standard International Swap Dealer Association Agreement, (ii) provides for the method of calculating the reimbursable amount of the provider’s credit exposure in a reasonable and customary manner, and (iii) is entered into for hedging purposes.

 

Lender-Provided Interest Rate Hedge shall mean an Interest Rate Hedge which is provided by any Lender or any affiliate thereof and meets the following requirements:  such Interest Rate Hedge (i) is documented in a standard International Swap Dealer Association Agreement, (ii) provides for the method of calculating the reimbursable amount of the provider’s credit exposure in a reasonable and customary manner, and (iii) is entered into for hedging (rather than speculative) purposes.

 

Lenders shall mean the financial institutions named on Schedule 1.1(B) and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a Lender.  For the purpose of any Loan Document which provides for the granting of a security interest or other Lien to the Lenders or to the Administrative Agent for the benefit of the Lenders

 

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as security for the Obligations, “Lenders” shall include any Affiliate of a Lender to which such Obligation is owed.

 

Letter of Credit shall have the meaning specified in Section 2.9.1 [Issuance of Letters of Credit].

 

Letter of Credit Borrowing shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement].

 

Letter of Credit Fee shall have the meaning specified in Section 2.9.2 [Letter of Credit Fees].

 

Letter of Credit Obligation shall mean, as of any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit on such date (if any Letter of Credit shall increase in amount automatically in the future, such aggregate amount available to be drawn shall currently give effect to any such future increase) plus the aggregate Reimbursement Obligations and Letter of Credit Borrowings on such date.

 

Letter of Credit Sublimit shall have the meaning specified in Section 2.9.1 [Issuance of Letters of Credit].

 

Leverage Ratio shall mean the ratio of Consolidated Total Indebtedness to Consolidated EBITDA.  For purposes of calculating the Leverage Ratio, Consolidated Total Indebtedness shall be determined as of the end of each fiscal quarter of the MLP and Consolidated EBITDA shall be determined as of the end of each fiscal quarter of the MLP for the four fiscal quarters then ended.

 

LIBOR Rate shall mean, with respect to the Loans comprising any Borrowing Tranche to which the LIBOR Rate Option applies for any Interest Period, the interest rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which US dollar deposits are offered by leading banks in the London interbank deposit market), or the rate which is quoted by another source selected by the Administrative Agent which has been approved by the British Bankers’ Association as an authorized information vendor for the purpose of displaying rates at which US dollar deposits are offered by leading banks in the London interbank deposit market (for purposes of this definition, an “Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the London interbank offered rate for U.S. Dollars for an amount comparable to such Borrowing Tranche and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error)), by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage.  LIBOR may also be expressed by the following formula:

 

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London interbank offered rates quoted by Bloomberg
    	
 
    
	
LIBOR   Rate
    	
=
    	
or appropriate successor as shown on Bloomberg Page BBAM1
    	
 
    
	
 
    	
 
    	
1.00 - LIBOR Reserve Percentage
    	
 
    


 

The LIBOR Rate shall be adjusted with respect to any Loan to which the LIBOR Rate Option applies that is outstanding on the effective date of any change in the LIBOR Reserve Percentage as of such effective date.  The Administrative Agent shall give prompt notice to the Borrower of the LIBOR Rate as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest error.

 

LIBOR Rate Option shall mean the option of the Borrower to have Loans bear interest at the rate and under the terms set forth in Section 4.1.1(ii) [Revolving Credit LIBOR Rate Option].

 

LIBOR Reserve Percentage shall mean as of any day the maximum percentage in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including supplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding (currently referred to as “Eurocurrency Liabilities”).

 

Lien shall mean any mortgage, deed of trust, pledge, lien, security interest, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having the effect of, security and any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists at the time of the filing).

 

LLC Interests shall have the meaning specified in Section 6.1.3 [Subsidiaries].

 

Loan Documents shall mean this Agreement, the Administrative Agent’s Letter, the Guaranty Agreement, the Notes, the Indemnity, the Mortgages, the Patent, Trademark and Copyright Security Agreement, the Pledge Agreements, the Intercompany Subordination Agreement, the Security Agreement and any other instruments, certificates or documents delivered or contemplated to be delivered hereunder or thereunder or in connection herewith or therewith, as the same may be supplemented or amended from time to time in accordance herewith or therewith, and Loan Document shall mean any of the Loan Documents.

 

Loan Parties shall mean the Borrower and the Guarantors, provided that any reference to the term “Loan Party” or “Loan Parties” in any Loan Documents, other than the Credit Agreement, the Notes, the Guaranty Agreement, and the Pledge Agreement (Parent), shall not include the MLP.

 

Loan Request shall have the meaning specified in Section 2.5 [Revolving Credit Loan Requests; Swing Loan Requests].

 

Loans shall mean collectively and Loan shall mean separately all Revolving Credit Loans and Swing Loans or any Revolving Credit Loan or Swing Loan.

 

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Material Adverse Change shall mean any set of circumstances or events which (a) has or could reasonably be expected to have any material adverse effect whatsoever upon the validity or enforceability of this Agreement or any other Loan Document, (b) is or could reasonably be expected to be material and adverse to the business, properties, assets, financial condition, results of operations or prospects of the Loan Parties taken as a whole, (c) impairs materially or could reasonably be expected to impair materially the ability of the Loan Parties taken as a whole to duly and punctually pay or perform any of the Obligations, or (d) impairs materially or could reasonably be expected to impair materially the ability of the Administrative Agent or any of the Lenders, to the extent permitted, to enforce their legal remedies pursuant to this Agreement or any other Loan Document.

 

Material Contracts shall mean any individual lease, contract or agreement or, collectively, group of leases, contracts and agreements, from the Borrower or any of its Subsidiaries to a single operator or such operator’s Affiliates which either:  (i) accounted for five percent (5%) or more of the Consolidated EBITDA of the Borrower and its Subsidiaries for the previous fiscal year, or (ii) is projected to account for five percent (5%) or more of the Consolidated EBITDA of the Borrower and its Subsidiaries for the current fiscal year.

 

Material Leases shall mean all the leases set forth and described on Schedule 6.1.20.

 

Material Subsidiary shall mean a Subsidiary of the Borrower or any other Loan Party meeting any one of the following criteria (i) such Subsidiary’s aggregate assets comprise five percent (5%) or more of the consolidated assets of the Loan Parties, (ii) such Subsidiary’s aggregate stockholders’ equity comprises five percent (5%) or more of the consolidated stockholders’ equity of the Loan Parties; (iii) such Subsidiary’s EBITDA comprises five percent (5%) or more of the consolidated EBITDA of the Loan Parties or (iv) such Subsidiary’s aggregate gross revenue comprises five percent (5%) or more of the consolidated gross revenue of the Loan Parties.

 

Mining Title shall mean fee simple title to surface and/or coal or an undivided interest in fee simple title thereto or a leasehold interest in all or an undivided interest in surface and/or coal together with all related real property, easements, licenses, privileges, rights and appurtenances as are necessary to mine, remove, process and transport coal in the manner presently operated.

 

MLP shall mean Rhino Resource Partners LP, a Delaware limited partnership.

 

MLP Available Cash shall have the meaning assigned to the term “Available Cash” in the Partnership Agreement.

 

MLP Quarterly Distributions shall mean the distributions by the MLP of MLP Available Cash.

 

Month, with respect to an Interest Period under the LIBOR Rate Option, shall mean the interval between the days in consecutive calendar months numerically corresponding to the first day of such Interest Period.  If any LIBOR Rate Interest Period begins on a day of a

 

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calendar month for which there is no numerically corresponding day in the month in which such Interest Period is to end, the final month of such Interest Period shall be deemed to end on the last Business Day of such final month.

 

Mortgages shall mean collectively, and Mortgage shall mean each separately, the Mortgages in substantially the form of Exhibit 1.1(M) with respect to the Property executed and delivered by any Loan Party to the Administrative Agent for the benefit of the Lenders.

 

Multiemployer Plan shall mean any employee benefit plan which is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA and to which the Borrower or any member of the ERISA Group is then making or accruing an obligation to make contributions or, within the preceding five Plan years, has made or had an obligation to make such contributions.

 

Multiple Employer Plan shall mean a Plan which has two (2) or more contributing sponsors (including the Borrower or any member of the ERISA Group) at least two (2) of whom are not under common control, as such a plan is described in Sections 4063 and 4064 of ERISA.

 

New Lender shall have the meaning assigned to that term in Section 2.11(i).

 

Non-Consenting Lender shall have the meaning specified in Section 11.1 [Modifications, Amendments or Waivers].

 

Notes shall mean, collectively, the promissory notes in the form of Exhibit 1.1(R) evidencing the Revolving Credit Loans and in the form of Exhibit 1.1(N) evidencing the Swing Loan.

 

Obligation shall mean any obligation or liability of any of the Loan Parties to the Administrative Agent or any of the Lenders, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, under or in connection with this Agreement, the Notes,  the Letters of Credit, the Administrative Agent’s Letter or any other Loan Document or under any Lender-Provided Interest Rate Hedge or Lender-Provided Commodity Hedge.  Obligations shall include the liabilities to any Lender or any affiliate thereof under any Lender-Provided Interest Rate Hedge and Lender-Provided Commodity Hedge but shall not include the liabilities to other Persons under any other Interest Rate Hedge or Commodity Hedge.

 

Official Body shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

 

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Other Lender Provided Financial Service Product shall mean agreements or other arrangements under which any Lender or Affiliate of a Lender provides any of the following products or services to any of the Loan Parties: (a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions, (f) cash management, including controlled disbursement, accounts or services, or (g) foreign currency exchange.

 

Other Taxes shall mean all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

 

Participant has the meaning specified in Section 11.8.4 [Participations].

 

Participation Advance shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement].

 

Partnership Agreement shall mean the Second Amended and Restated Agreement of Limited Partnership of MLP, as in effect on October 26, 2010.

 

Partnership Interests shall have the meaning assigned to that term in Section 6.1.3 [Subsidiaries].

 

Patent, Trademark and Copyright Security Agreement shall mean the Patent, Trademark and Copyright Security Agreements in substantially the form of Exhibit 1.1(P)(1) to be executed and delivered by the Borrower and Guarantors to the Administrative Agent for the benefit of the Lenders in the event the Borrower or the Guarantor acquires any patents, trademarks or copyrights.

 

Payment In Full shall mean the indefeasible payment in full in cash of the Loans and other Obligations hereunder, termination of the Commitments and expiration or termination of all Letters of Credit.

 

PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any successor.

 

Permitted Acquisitions shall have the meaning assigned to that term in Section 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions].

 

Permitted Investments shall mean:

 

(i)                                     direct obligations of the United States of America or any agency or instrumentality thereof or obligations backed by the full faith and credit of the United States of America maturing in twelve (12) months or less from the date of acquisition;

 

(ii)                                  commercial paper maturing in 180 days or less rated not lower than A-1, by Standard & Poor’s or P-1 by Moody’s Investors Service, Inc. on the date of acquisition;

 

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(iii)                               demand deposits, time deposits or certificates of deposit maturing within one year in commercial banks whose obligations are rated A-1, A or the equivalent or better by Standard & Poor’s on the date of acquisition;

 

(iv)                              money market or mutual funds whose investments are limited to those types of investments described in clauses (i)-(iii) above; and

 

(v)                                 investments made under the Cash Management Agreements or under cash management agreements with any other Lenders.

 

Permitted Liens shall mean:

 

(i)                                     Liens for taxes, assessments, or similar charges, incurred in the ordinary course of business and which are not yet due and payable;

 

(ii)                                  Pledges or deposits made in the ordinary course of business to secure payment of workmen’s compensation, or to participate in any fund in connection with workmen’s compensation, unemployment insurance, old-age pensions or other social security programs;

 

(iii)                               Liens of mechanics, materialmen, warehousemen, carriers, or other like Liens, securing obligations incurred in the ordinary course of business that are not yet due and payable and Liens of landlords securing obligations to pay lease payments that are not yet due and payable or in default;

 

(iv)                              Pledges or deposits made in the ordinary course of business to secure performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, not in excess of the aggregate amount due thereunder, or to secure statutory obligations, or surety, appeal, indemnity, performance or other similar bonds required in the ordinary course of business;

 

(v)                                 Encumbrances consisting of zoning restrictions, easements or other restrictions on the use of real property, none of which materially impairs the use of such property or the value thereof, and none of which is violated in any material respect by existing or proposed structures or land use;

 

(vi)                              Liens in favor of the Administrative Agent for the benefit of the Lenders securing the Obligations including liabilities under any Lender-Provided Interest Rate Hedge and Lender-Provided Commodity Hedge;

 

(vii)                           Liens on property leased by any Loan Party or Subsidiary of a Loan Party under operating leases permitted in Section 8.2.16 [Operating Leases] securing obligations of such Loan Party or Subsidiary to the lessor under such leases;

 

(viii)                        Any Lien existing on the date of this Agreement and described on Schedule 1.1(P), provided that the principal amount secured thereby is not hereafter increased, and no additional assets become subject to such Lien;

 

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(ix)                                Purchase Money Security Interests and capital leases, provided that the aggregate amount of loans and deferred payments secured by such Purchase Money Security Interests and capital leases shall not exceed $20,000,000 (excluding for the purpose of this computation any loans or deferred payments secured by Liens described on Schedule 1.1(P)); and

 

(x)                                   The following, (A) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently conducted so long as levy and execution thereon have been stayed and continue to be stayed or (B) if a final judgment is entered and such nonappealable judgment is discharged within thirty (30) days of entry, and they do not, in the aggregate, materially impair the ability of any Loan Party to perform its Obligations hereunder or under the other Loan Documents:

 

(1)                                  Claims or Liens for taxes, assessments or charges due and payable and subject to interest or penalty, provided that the applicable Loan Party maintains such reserves or other appropriate provisions as shall be required by GAAP and pays all such taxes, assessments or charges forthwith upon the commencement of proceedings to foreclose any such Lien;

 

(2)                                  Claims, Liens or encumbrances upon, and defects of title to, real or personal property, including any attachment of personal or real property or other legal process prior to adjudication of a dispute on the merits;

 

(3)                                  Claims or Liens of mechanics, materialmen, warehousemen, carriers, or other statutory nonconsensual Liens; or

 

(4)                                  Liens resulting from final judgments or orders described in Section 9.1.6 [Final Judgments or Orders].

 

Person shall mean any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, Joint Venture, government or political subdivision or agency thereof, or any other entity.

 

Plan shall mean at any time an employee pension benefit plan (including a Multiple Employer Plan, but not a Multiemployer Plan) which is covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (i) is maintained by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained by any entity which was at such time a member of the ERISA Group for employees of any entity which was at such time a member of the ERISA Group.

 

Pledge Agreements shall mean collectively, and Pledge Agreement shall mean each separately, Pledge Agreements in substantially the form of Exhibit 1.1(P)(2) and the Pledge Agreement (Parent) in substantially the form of Exhibit 1.1(P)(3) executed and delivered by the Borrower, the Guarantors, and each Person, subject to the provisions of Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures], who owns equity interests in the Pledged Collateral, in each case to the Administrative Agent for the benefit of the Lenders.

 

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Pledged Collateral shall mean the property of the Loan Parties in which security interests are to be granted under the Pledge Agreements.

 

PNC shall mean PNC Bank, National Association, its successors and assigns.

 

Potential Default shall mean any event or condition which with notice or passage of time, or both, would constitute an Event of Default.

 

Prime Rate shall mean the interest rate per annum announced from time to time by the Administrative Agent at its Principal Office as its then prime rate, which rate may not be the lowest or most favorable rate then being charged commercial borrowers or others by the Administrative Agent.  Any change in the Prime Rate shall take effect at the opening of business on the day such change is announced.

 

Principal Office shall mean the main banking office of the Administrative Agent in Pittsburgh, Pennsylvania.

 

Prior Security Interest shall mean a valid and enforceable perfected first-priority security interest under the Uniform Commercial Code in the UCC Collateral and the Pledged Collateral which is subject only to Liens:  (i) for taxes not yet due and payable to the extent such prospective tax payments are given priority by statute, (ii) Purchase Money Security Interests as permitted hereunder or (iii) arising under mining leases to secure the payments due under such leases.

 

Prohibited Transaction shall mean any prohibited transaction as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for which neither an individual nor a class exemption has been issued by the United States Department of Labor.

 

Property shall mean all real property, both owned and leased, of any Loan Party or Subsidiary of a Loan Party.

 

Published Rate shall mean the rate of interest published each Business Day in The Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a one month period (or, if no such rate is published therein for any reason, then the Published Rate shall be the rate at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market for a one month period as published in another publication selected by the Administrative Agent).

 

Purchase Money Security Interest shall mean Liens upon tangible personal property securing loans to any Loan Party or Subsidiary of a Loan Party or deferred payments by such Loan Party or Subsidiary for the purchase of such tangible personal property.]

 

Ratable Share shall mean the proportion that a Lender’s Commitment (excluding the Swing Loan Commitment) bears to the Commitments (excluding the Swing Loan Commitment) of all of the Lenders, provided that in the case of Section 2.10 [Defaulting Lenders] when a Defaulting Lender shall exist, “Ratable Share” shall mean the percentage of the aggregate Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment.  If the Commitments have terminated or expired, the Ratable Share

 

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shall be determined based upon the Commitments (excluding the Swing Loan Commitment) most recently in effect, giving effect to any assignments.

 

Regulated Substances shall mean, without limitation, any substance, material or waste, regardless of its form or nature, defined under Environmental Laws as a “hazardous substance,” “pollutant,” “pollution,” “contaminant,” “hazardous or toxic substance,” “extremely hazardous substance,” “toxic chemical,” “toxic substance,” “toxic waste,” “hazardous waste,” “special handling waste,” “industrial waste,” “residual waste,” “solid waste,” “municipal waste,” “mixed waste,” “infectious waste,” “chemotherapeutic waste,” “medical waste,” or “regulated substance” or any other material, substance or waste, regardless of its form or nature, which otherwise is regulated by Environmental Laws.

 

Regulation U shall mean Regulation U, T or X as promulgated by the Board of Governors of the Federal Reserve System, as amended from time to time.

 

Reimbursement Obligation shall have the meaning specified in Section 2.9.3 [Disbursements, Reimbursement].

 

Reportable Event shall mean a reportable event described in Section 4043 of ERISA and regulations thereunder with respect to a Plan or Multiemployer Plan.

 

Required Environmental Notices shall mean all notices, reports, plans, forms or other filings which pursuant to Environmental Laws, Required Environmental Permits or at the request or direction of an Official Body either must be submitted to an Official Body or which otherwise must be maintained.

 

Required Environmental Permits shall mean all permits, licenses, bonds, consents, programs, approvals or authorizations required under Environmental Laws to own, occupy or maintain the Property or which otherwise are required for the operations and business activities of the Borrower or Guarantors.

 

Required Lenders shall mean

 

(i)                                     if there are no Loans, Reimbursement Obligations or Letter of Credit Borrowings outstanding, Lenders whose Commitments aggregate greater than 50% of the Commitments of all of the Lenders, or

 

(ii)                                  if there are Loans, Reimbursement Obligations, or Letter of Credit Borrowings outstanding, any Lender or group of Lenders if the sum of the Loans, Reimbursement Obligations and Letter of Credit Borrowings of such Lenders then outstanding aggregates greater than 50% of the total principal amount of all of the Loans, Reimbursement Obligations and Letter of Credit Borrowings then outstanding.

 

Required Share shall have the meaning assigned to such term in Section 5.11 [Settlement Date Procedures].

 

Revolving Credit Commitment shall mean, as to any Lender at any time, the amount initially set forth opposite its name on Schedule 1.1(B) in the column labeled “Amount

 

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of Commitment for Revolving Credit Loans,” as such Commitment is thereafter assigned or modified and Revolving Credit Commitments shall mean the aggregate Revolving Credit Commitments of all of the Lenders.

 

Revolving Credit Loans shall mean collectively and Revolving Credit Loan shall mean separately all Revolving Credit Loans or any Revolving Credit Loan made by the Lenders or one of the Lenders to the Borrower pursuant to Section 2.1 [Revolving Credit Commitments] or 2.9.3 [Disbursements, Reimbursement].

 

Revolving Facility Usage shall mean at any time the sum of the outstanding Revolving Credit Loans, the outstanding Swing Loans, and the Letter of Credit Obligations.

 

Security Agreement shall mean the Security Agreement executed and delivered by the Loan Parties, and in substantially the form of Exhibit 1.1(S) to the Administrative Agent for the benefit of the Lenders.

 

Security Documents shall mean security agreements, pledge agreements, mortgages, deeds of trust and all other documents, instruments, and agreements sufficient to provide the Administrative Agent for the benefit of the Lenders with a first priority perfected Lien, subject only to Permitted Liens, on all property of the Loan Parties other than Excluded Property.

 

Settlement Date shall mean the Business Day on which the Administrative Agent elects to effect settlement pursuant Section 5.11 [Settlement Date Procedures].

 

Standard & Poor’s shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

 

Subsidiary of any Person at any time shall mean:  (i) any corporation or trust of which 50% or more (by number of shares or number of votes) of the outstanding capital stock or shares of beneficial interest normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) is at such time owned directly or indirectly by such Person or one or more of such Person’s Subsidiaries, (ii) any partnership of which such Person is a general partner or of which 50% or more of the partnership interests is at the time directly or indirectly owned by such Person or one or more of such Person’s Subsidiaries, (iii) any limited liability company of which such Person is a member or of which 50% or more of the limited liability company interests is at the time directly or indirectly owned by such Person or one or more of such Person’s Subsidiaries or (iv) any corporation, trust, partnership, limited liability company or other entity which is controlled or capable of being controlled by such Person or one or more of such Person’s Subsidiaries.

 

Subsidiary Shares shall have the meaning specified in Section 6.1.3 [Subsidiaries].

 

Swing Loan Commitment shall mean PNC’s commitment to make Swing Loans to the Borrower pursuant to Section 2.1.2 [Swing Loan Commitment] hereof in an aggregate principal amount up to $25,000,000.

 

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Swing Loan Note shall mean the Swing Loan Note of the Borrower in the form of Exhibit 1.1(N) evidencing the Swing Loans, together with all amendments, extensions, renewals, replacements, refinancings or refundings thereof in whole or in part.

 

Swing Loan Request shall mean a request for Swing Loans made in accordance with Section 2.5.2 [Swing Loan Requests] hereof.

 

Swing Loans shall mean collectively and Swing Loan shall mean separately all Swing Loans or any Swing Loan made by PNC to the Borrower pursuant to Section 2.1.2 [Swing Loan Commitment] hereof.

 

Taxes shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Official Body, including any interest, additions to tax or penalties applicable thereto.

 

UCC Collateral shall mean the property of the Loan Parties in which security interests are granted under the Security Agreement.

 

USA Patriot Act shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

 

Wexford shall mean (i) Wexford Capital LP (as successor-by-merger to Wexford Capital LLC), (ii) any fund or other entity owned, managed, or otherwise controlled by Wexford Capital LP (as successor-by-merger to Wexford Capital LLC), and (iii) each Person who is a principal or partner of Wexford Capital LP (as successor-by-merger to Wexford Capital LLC).

 

1.2                                 Construction.  Unless the context of this Agreement otherwise clearly requires, the following rules of construction shall apply to this Agreement and each of the other Loan Documents: (i) references to the plural include the singular, the plural, the part and the whole and the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (ii) the words “hereof,” “herein,” “hereunder,” “hereto” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document as a whole; (iii) article, section, subsection, clause, schedule and exhibit references are to this Agreement or other Loan Document, as the case may be, unless otherwise specified; (iv) reference to any Person includes such Person’s successors and assigns; (v) reference to any agreement, including this Agreement and any other Loan Document together with the schedules and exhibits hereto or thereto, document or instrument means such agreement, document or instrument as amended, modified, replaced, substituted for, superseded or restated; (vi) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding,” and “through” means “through and including”; (vii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (viii) section headings herein and in each other Loan Document are included for convenience and shall not affect the interpretation of this Agreement or such Loan Document, and (ix) unless otherwise specified, all references herein to times of day shall be references to Eastern Time.

 

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1.3                                 Accounting Principles; Changes in GAAP.  Except as otherwise provided in this Agreement, all computations and determinations as to accounting or financial matters and all financial statements to be delivered pursuant to this Agreement shall be made and prepared in accordance with GAAP (including principles of consolidation where appropriate), and all accounting or financial terms shall have the meanings ascribed to such terms by GAAP; provided, however, that all accounting terms used in Section 8.2 [Negative Covenants] (and all defined terms used in the definition of any accounting term used in Section 8.2 shall have the meaning given to such terms (and defined terms) under GAAP as in effect on the date hereof applied on a basis consistent with those used in preparing Statements referred to in Section 6.1.9(i) [Historical Statements].  Notwithstanding the foregoing, if the Borrower notifies the Administrative Agent in writing that the Borrower wishes to amend any financial covenant in Section 8.2 of this Agreement, any related definition and/or the definition of the term Leverage Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee determinations to eliminate the effect of any change in GAAP occurring after the Closing Date on the operation of such financial covenants and/or interest, Letter of Credit Fee or Commitment Fee determinations (or if the Administrative Agent notifies the Borrower in writing that the Required Lenders wish to amend any financial covenant in Section 8.2, any related definition and/or the definition of the term Leverage Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee determinations to eliminate the effect of any such change in GAAP), then the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratios or requirements to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, the Loan Parties’ compliance with such covenants and/or the definition of the term Leverage Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee determinations shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenants or definitions are amended in a manner satisfactory to the Borrower and the Required Lenders, and the Loan Parties shall provide to the Administrative Agent, when they delivers their financial statements pursuant to Section 8.3.1 [Quarterly Financial Statements] and 8.3.2 [Annual Financial Statements] of this Agreement, such reconciliation statements as shall be reasonably requested by the Administrative Agent.

 

2.                                       REVOLVING CREDIT AND SWING LOAN FACILITIES

 

2.1                                 Revolving Credit Commitments.

 

2.1.1                                  Revolving Credit Loans. Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth, each Lender severally agrees to make Revolving Credit Loans to the Borrower at any time or from time to time on or after the date hereof to the Expiration Date; provided that after giving effect to each such Loan (i) the aggregate amount of Revolving Credit Loans from such Lender shall not exceed such Lender’s Revolving Credit Commitment minus such Lender’s Ratable Share of the Letter of Credit Obligations and (ii) the Revolving Facility Usage shall not exceed the Revolving Credit Commitments.  Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section 2.1.  Revolving Credit Loans shall be available to the Borrower solely for the purposes set forth in Section 2.8 [Use of Proceeds].

 

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2.1.2                                  Swing Loan Commitment. Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth, and in order to facilitate loans and repayments between Settlement Dates, PNC may, at its option, cancelable at any time for any reason whatsoever, make swing loans (the “Swing Loans”) to the Borrower at any time or from time to time after the date hereof to, but not including, the Expiration Date, in an aggregate principal amount up to but not in excess of $25,000,000, provided that after giving effect to such Loan, the Revolving Facility Usage shall not exceed the Revolving Credit Commitments.  Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section 2.1.2.

 

2.2                                 Nature of Lenders’ Obligations with Respect to Revolving Credit Loans.  Each Lender shall be obligated to participate in each request for Revolving Credit Loans pursuant to Section 2.5 [Revolving Credit Loan Requests; Swing Loan Requests] in accordance with its Ratable Share.  The aggregate of each Lender’s Revolving Credit Loans outstanding hereunder to the Borrower at any time shall never exceed its Revolving Credit Commitment minus its Ratable Share of the outstanding Swing Loans and Letter of Credit Obligations.  The obligations of each Lender hereunder are several.  The failure of any Lender to perform its obligations hereunder shall not affect the Obligations of the Borrower to any other party nor shall any other party be liable for the failure of such Lender to perform its obligations hereunder.  The Lenders shall have no obligation to make Revolving Credit Loans hereunder on or after the Expiration Date.

 

2.3                                 Commitment Fees.  Accruing from the date hereof until the Expiration Date, the Borrower agrees to pay to the Administrative Agent for the account of each Lender according to its Ratable Share (for purposes of this computation, the right of each Lender other than PNC to receive a Commitment Fee shall be calculated by excluding all outstanding Swing Loans in the determination of usage in clause (ii) below), a nonrefundable commitment fee (the “Commitment Fee”) equal to the Applicable Commitment Fee Rate (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) multiplied by the average daily difference between the amount of (i) the Revolving Credit Commitments, and (ii) the Revolving Facility Usage; provided, however, that any Commitment Fee accrued with respect to the Revolving Credit Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and provided  further that no Commitment Fee shall accrue with respect to the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.  Subject to the proviso in the directly preceding sentence, all Commitment Fees shall be payable in arrears on the first day of each October, January, April and July after the date hereof and on the Expiration Date or upon acceleration of the Notes.

 

2.4                                 Intentionally Omitted.

 

2.5                                 Revolving Credit Loan Requests; Swing Loan Requests.

 

2.5.1                                  Revolving Credit Loan Requests. Except as otherwise provided herein, the Borrower may from time to time prior to the Expiration Date request the Lenders to make Revolving Credit Loans, or renew or convert the Interest Rate Option applicable to existing

 

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Revolving Credit Loans pursuant to Section 4.2 [Interest Periods], by delivering to the Administrative Agent, not later than 12:00 noon, (i) three (3) Business Days prior to the proposed Borrowing Date with respect to the making of Revolving Credit Loans to which the LIBOR Rate Option applies or the conversion to or the renewal of the LIBOR Rate Option for any Loans; and (ii) the same Business Day of the proposed Borrowing Date with respect to the making of a Revolving Credit Loan to which the Base Rate Option applies or the last day of the preceding Interest Period with respect to the conversion to the Base Rate Option for any Loan, of a duly completed request therefor substantially in the form of Exhibit 2.5.1 or a request by telephone immediately confirmed in writing by letter, facsimile or telex in such form (each, a “Loan Request”), it being understood that the Administrative Agent may rely on the authority of any individual making such a telephonic request without the necessity of receipt of such written confirmation.  Each Loan Request shall be irrevocable and shall specify the (A) proposed Borrowing Date, (B) the aggregate amount of the proposed Loans comprising each Borrowing Tranche, and, if applicable, the Interest Period, which amounts shall be in (1) integral multiples of $2,000,000 and not less than $2,000,000 for each Borrowing Tranche under the LIBOR Rate Option, and (2) not less than the lesser of $100,000 or the maximum amount available for Borrowing Tranches for each Borrowing Tranche under the Base Rate Option, (C) whether the LIBOR Rate Option or Base Rate Option shall apply to the proposed Loans comprising the applicable Borrowing Tranche; and (D) in the case of a Borrowing Tranche to which the LIBOR Rate applies, an appropriate Interest Period for the Loans comprising such Borrowing Tranche.

 

2.5.2                                  Swing Loan Requests. Except as otherwise provided herein, the Borrower may from time to time prior to the Expiration Date request PNC to make Swing Loans by delivery to PNC not later than 12:00 noon on the proposed Borrowing Date of a duly completed request therefor substantially in the form of Exhibit 2.5.2 hereto or a request by telephone immediately confirmed in writing by letter, facsimile or telex (each, a “Swing Loan Request”), it being understood that the Administrative Agent may rely on the authority of any individual making such a telephonic request without the necessity of receipt of such written confirmation.  Each Swing Loan Request shall be irrevocable and shall specify the proposed Borrowing Date and the principal amount of such Swing Loan, which shall be not less than $100,000.

 

2.6                                 Making Revolving Credit Loans and Swing Loans; Presumptions by the Administrative Agent; Repayment of Revolving Credit Loans; Borrowings to Repay Swing Loans.

 

2.6.1                                  Making Revolving Credit Loans.  The Administrative Agent shall, promptly after receipt by it of a Loan Request pursuant to Section 2.5.1 [Revolving Credit Loan Requests; Swing Loan Requests], notify the Lenders of its receipt of such Loan Request specifying the information provided by the Borrower and the apportionment among the Lenders of the requested Revolving Credit Loans as determined by the Administrative Agent in accordance with Section 2.2 [Nature of Lenders’ Obligations with Respect to Revolving Credit Loans].  Each Lender shall remit the principal amount of each Revolving Credit Loan to the Administrative Agent such that the Administrative Agent is able to, and the Administrative Agent shall, to the extent the Lenders have made funds available to it for such purpose and subject to Section 7.2 [Each Loan or Letter of Credit], fund such Revolving Credit Loans to the Borrower in U.S. Dollars and immediately available funds at the Principal Office prior to 2:00

 

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p.m., on the applicable Borrowing Date; provided that if any Lender fails to remit such funds to the Administrative Agent in a timely manner, the Administrative Agent may elect in its sole discretion to fund with its own funds the Revolving Credit Loans of such Lender on such Borrowing Date, and such Lender shall be subject to the repayment obligation in Section 2.6.2 [Presumptions by the Administrative Agent].

 

2.6.2                                  Presumptions by the Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Loan that such Lender will not make available to the Administrative Agent such Lender’s share of such Loan, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.6.1 [Making Revolving Credit Loans] and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Loans under the Base Rate Option.  If such Lender pays its share of the applicable Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

2.6.3                                  Making Swing Loans. So long as PNC elects to make Swing Loans, PNC shall, after receipt by it of a Swing Loan Request pursuant to Section 2.5.2, [Swing Loan Requests] fund such Swing Loan to the Borrower in U.S. Dollars and immediately available funds at the Principal Office prior to 4:00 p.m. on the Borrowing Date.

 

2.6.4                                  Repayment of Revolving Credit Loans.  The Borrower shall repay the Revolving Credit Loans and Swing Loans together with all outstanding interest thereon on the Expiration Date.

 

2.6.5                                  Borrowings to Repay Swing Loans. PNC may, at its option, exercisable at any time for any reason whatsoever, demand repayment of the Swing Loans, and each Lender shall make a Revolving Credit Loan in an amount equal to such Lender’s Ratable Share of the aggregate principal amount of the outstanding Swing Loans, plus, if PNC so requests, accrued interest thereon, provided that no Lender shall be obligated in any event to make Revolving Credit Loans in excess of its Revolving Credit Commitment minus its Ratable Share of Letter of Credit Obligations.  Revolving Credit Loans made pursuant to the preceding sentence shall bear interest at the Base Rate Option and shall be deemed to have been properly requested in accordance with Section 2.5.1 [Revolving Credit Loan Requests] without regard to any of the requirements of that provision.  PNC shall provide notice to the Lenders (which may be telephonic or written notice by letter, facsimile or telex) that such Revolving Credit Loans are to be made under this Section 2.6.5 and of the apportionment among the Lenders, and the Lenders shall be unconditionally obligated to fund such Revolving Credit Loans (whether or not the conditions specified in Section 2.5.1 [Revolving Credit Loan Requests] are then satisfied) by the

 

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time PNC so requests, which shall not be earlier than 3:00 p.m. on the Business Day next after the date the Lenders receive such notice from PNC.

 

2.6.6                                  Swing Loans Under Cash Management Agreements.  In addition to making Swing Loans pursuant to the foregoing provisions of Section 2.6.3 [Making Swing Loans], without the requirement for a specific request from the Borrower pursuant to Section 2.5.2 [Swing Loan Requests], PNC as the Swing Loan Lender may make Swing Loans to the Borrower in accordance with the provisions of the agreements between the Borrower and such Swing Loan Lender relating to the Borrower’s deposit, sweep and other accounts at such Swing Loan Lender and related arrangements and agreements regarding the management and investment of the Borrower’s cash assets as in effect from time to time (the “Cash Management Agreements”) to the extent of the daily aggregate net negative balance in the Borrower’s accounts which are subject to the provisions of the Cash Management Agreements.  Swing Loans made pursuant to this Section 2.6.6 in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in Section 2.1.2 [Swing Loan Commitment], (ii) not be subject to the limitations as to individual amount set forth in Section 2.5.2 [Swing Loan Requests], (iii) be payable by the Borrower, both as to principal and interest, at the rates and times set forth in the Cash Management Agreements (but in no event later than the Expiration Date), (iv) not be made at any time after such Swing Loan Lender has received written notice of the occurrence of an Event of Default and so long as such shall continue to exist, or, unless consented to by the Required Lenders, a Potential Default and so long as such shall continue to exist, (v) if not repaid by the Borrower in accordance with the provisions of the Cash Management Agreements, be subject to each Lender’s obligation pursuant to Section 2.6.5 [Borrowings to Repay Swing Loans], and (vi) except as provided in the foregoing subsections (i) through (v), be subject to all of the terms and conditions of this Section 2.

 

2.7                                 Notes.  The Obligation of the Borrower to repay the aggregate unpaid principal amount of the Revolving Credit Loans and Swing Loans made to it by each Lender, together with interest thereon, shall be evidenced by a revolving credit Note and a swing Note, dated the Closing Date payable to the order of such Lender in a face amount equal to the Revolving Credit Commitment or Swing Loan Commitment of such Lender.

 

2.8                                 Use of Proceeds.  The proceeds of the Loans shall be used in accordance with Section 8.1.10 [Use of Proceeds].

 

2.9                                 Letter of Credit Subfacility.

 

2.9.1                                  Issuance of Letters of Credit.  On the Closing Date, the outstanding letters of credit previously issued under the Existing Credit Agreement that are set forth on Schedule 2.9.1 (the “Existing Letters of Credit”) will automatically, without any action on the part of any Person, be deemed to be Letters of Credit issued hereunder for the account of the Borrowers for all purposes of this Agreement and the other Loan Documents.  Borrower may at any time prior to the Expiration Date request the issuance of a letter of credit (each a “Letter of Credit”) on behalf of itself or another Loan Party, or the amendment or extension of an existing Letter of Credit, by delivering or having such other Loan Party deliver to the Issuing Lender (with a copy to the Administrative Agent) a completed application and agreement for letters of credit, or request for such amendment or extension, as applicable, in such form as the Issuing

 

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Lender may specify from time to time by no later than 10:00 a.m. at least three (3) Business Days, or such shorter period as may be agreed to by the Issuing Lender, in advance of the proposed date of issuance.  Promptly after receipt of any letter of credit application, the Issuing Lender shall confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit application and if not, such Issuing Lender will provide Administrative Agent with a copy thereof.  The Borrower shall be bound by the terms of all such applications and agreements regardless whether delivered to the Issuing Lender by the Borrower or another Loan Party, and in the event that such application and agreement is delivered by any other Loan Party, the Borrower shall be jointly and severally obligated thereon with such Loan Party.  Unless the Issuing Lender has received notice from any Lender, Administrative Agent or any Loan Party, at least one day prior to the requested date of issuance, amendment or extension of the applicable Letter of Credit, that one or more applicable conditions in Section 7 [Conditions of Lending and Issuance of Letters of Credit] is not satisfied, then, subject to the terms and conditions hereof and in reliance on the agreements of the other Lenders set forth in this Section 2.9, the Issuing Lender or any of the Issuing Lender’s Affiliates will issue a Letter of Credit or agree to such amendment or extension, provided that each Letter of Credit shall (A) have a maximum maturity of twelve (12) months from the date of issuance, and (B) in no event expire later than ten (10) Business Days prior to  the Expiration Date and provided further that in no event shall (i) the Letter of Credit Obligations exceed, at any one time, $75,000,000 (the “Letter of Credit Sublimit”) or (ii) the Revolving Facility Usage exceed, at any one time, the Revolving Credit Commitments.  Each request by the Borrower for the issuance, amendment or extension of a Letter of Credit shall be deemed to be a representation by the Borrower that it shall be in compliance with the preceding sentence and with Section 7 [Conditions of Lending and Issuance of Letters of Credit] after giving effect to the requested issuance, amendment or extension of such Letter of Credit.  Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to the beneficiary thereof, the applicable Issuing Lender will also deliver to Borrower and Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

2.9.2                                  Letter of Credit Fees.  The Borrower shall pay (i) to the Administrative Agent for the ratable account of the Lenders a fee (the “Letter of Credit Fee”) equal to the Applicable Letter of Credit Fee Rate, and (ii) to the Issuing Lender for its own account a fronting fee equal to 0.15% per annum (in each case computed on the basis of a year of 360 days and actual days elapsed), which fees shall be computed on the daily average Letter of Credit Obligations and shall be payable quarterly in arrears on the first day of each October, January, April and July following issuance of each Letter of Credit and on the Expiration Date.  The Borrower shall also pay to the Issuing Lender for the Issuing Lender’s sole account the Issuing Lender’s then in effect customary fees and administrative expenses payable with respect to the Letters of Credit as the Issuing Lender may generally charge or incur from time to time in connection with the issuance, maintenance, amendment (if any), assignment or transfer (if any),  negotiation, and administration of Letters of Credit.

 

2.9.3                                  Disbursements, Reimbursement.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Lender a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Lender’s Ratable Share of the maximum amount available to be drawn under such Letter of Credit and the amount of such drawing, respectively.

 

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Notwithstanding anything in this Section 2.9.3 or Section 2.9.3.3 to the contrary, no Lender shall be required to purchase such a participation or pay a Participation Advance in an amount that would exceed its Revolving Credit Commitment minus (i) its Revolving Credit Loans, (ii) its Ratable Share of Swing Loans, and (iii) its Ratable Share of other Letter of Credit Obligations.

 

2.9.3.1                                  In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the Issuing Lender will promptly notify the Borrower and the Administrative Agent thereof.  Provided that it shall have received such notice, the Borrower shall reimburse (such obligation to reimburse the Issuing Lender shall sometimes be referred to as a “Reimbursement Obligation”) the Issuing Lender prior to 12:00 noon Pittsburgh time on each date that an amount is paid by the Issuing Lender under any Letter of Credit (each such date, a “Drawing Date”) by paying to the Administrative Agent for the account of the Issuing Lender an amount equal to the amount so paid by the Issuing Lender.  In the event the Borrower fails to reimburse the Issuing Lender (through the Administrative Agent) for the full amount of any drawing under any Letter of Credit by 12:00 noon Pittsburgh time on the Drawing Date, the Administrative Agent will promptly notify each Lender thereof, and the Borrower shall be deemed to have requested that Revolving Credit Loans be made by the Lenders under the Base Rate Option to be disbursed on the Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of the Revolving Credit Commitment and subject to the conditions set forth in Section 7.2 [Each Loan or Letter of Credit] other than any notice requirements.  Any notice given by the Administrative Agent or Issuing Lender pursuant to this Section 2.9.3.1 may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

2.9.3.2                                  Each Lender shall upon any notice pursuant to Section 2.9.3.1 make available to the Administrative Agent for the account of the Issuing Lender an amount in immediately available funds equal to its Ratable Share of the amount of the drawing, whereupon the participating Lenders shall (subject to Section 2.9.3 [Disbursement; Reimbursement]) each be deemed to have made a Revolving Credit Loan under the Base Rate Option to the Borrower in that amount.  If any Lender so notified fails to make available to the Administrative Agent for the account of the Issuing Lender the amount of such Lender’s Ratable Share of such amount by no later than 2:00 p.m. on the Drawing Date, then interest shall accrue on such Lender’s obligation to make such payment, from the Drawing Date to the date on which such Lender makes such payment (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days following the Drawing Date and (ii) at a rate per annum equal to the rate applicable to Loans under the Revolving Credit Base Rate Option on and after the fourth day following the Drawing Date.  The Administrative Agent and the Issuing Lender will promptly give notice (as described in Section 2.9.3.1 above) of the occurrence of the Drawing Date, but failure of the Administrative Agent or the Issuing Lender to give any such notice on the Drawing Date or in sufficient time to enable any Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 2.9.3.2.

 

2.9.3.3                                  With respect to any unreimbursed drawing that is not converted into Revolving Credit Loans under the Base Rate Option to the Borrower in whole or in part as contemplated by Section 2.9.3.1, because of the Borrower’s failure to satisfy the conditions set forth in Section 7.2 [Each Loan or Letter of Credit] other than any notice requirements, or for

 

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any other reason, the Borrower shall be deemed to have incurred from the Issuing Lender a borrowing (each a “Letter of Credit Borrowing”) in the amount of such drawing.  Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to the Revolving Credit Loans under the Base Rate Option.  Each Lender’s payment to the Administrative Agent for the account of the Issuing Lender pursuant to Section 2.9.3 [Disbursements, Reimbursement] shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing (each a “Participation Advance”) from such Lender in satisfaction of its participation obligation under this Section 2.9.3.

 

2.9.4                                  Repayment of Participation Advances.

 

2.9.4.1                                  Upon (and only upon) receipt by the Administrative Agent for the account of the Issuing Lender of immediately available funds from the Borrower (i) in reimbursement of any payment made by the Issuing Lender under the Letter of Credit with respect to which any Lender has made a Participation Advance to the Administrative Agent, or (ii) in payment of interest on such a payment made by the Issuing Lender under such a Letter of Credit, the Administrative Agent on behalf of the Issuing Lender will pay to each Lender, in the same funds as those received by the Administrative Agent, the amount of such Lender’s Ratable Share of such funds, except the Administrative Agent shall retain for the account of the Issuing Lender the amount of the Ratable Share of such funds of any Lender that did not make a Participation Advance in respect of such payment by the Issuing Lender.

 

2.9.4.2                                  If the Administrative Agent is required at any time to return to any Loan Party, or to a trustee, receiver, liquidator, custodian, or any official in any Insolvency Proceeding, any portion of any payment made by any Loan Party to the Administrative Agent for the account of the Issuing Lender pursuant to this Section in reimbursement of a payment made under the Letter of Credit or interest or fee thereon, each Lender shall, on demand of the Administrative Agent, forthwith return to the Administrative Agent for the account of the Issuing Lender the amount of its Ratable Share of any amounts so returned by the Administrative Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Lender to the Administrative Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.

 

2.9.5                                  Documentation.  Each Loan Party agrees to be bound jointly and severally by the terms of the Issuing Lender’s application and agreement for letters of credit and the Issuing Lender’s written regulations and customary practices relating to letters of credit, though such interpretation may be different from such Loan Party’s own.  In the event of a conflict between such application or agreement and this Agreement, this Agreement shall govern.  It is understood and agreed that, except in the case of gross negligence or willful misconduct, the Issuing Lender shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following any Loan Party’s instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.

 

2.9.6                                  Determinations to Honor Drawing Requests.  In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the Issuing Lender shall be responsible only to determine that the documents and certificates required to be

 

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delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit.

 

2.9.7                                  Nature of Participation and Reimbursement Obligations.  Each Lender’s obligation in accordance with this Agreement to make the Revolving Credit Loans or Participation Advances, as contemplated by Section 2.9.3 [Disbursements, Reimbursement], as a result of a drawing under a Letter of Credit, and the Obligations of the Borrower to reimburse the Issuing Lender upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.9 under all circumstances, including the following circumstances:

 

(i)                                     any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Issuing Lender or any of its Affiliates, the Borrower or any other Person for any reason whatsoever, or which any Loan Party may have against the Issuing Lender or any of its Affiliates, any Lender or any other Person for any reason whatsoever;

 

(ii)                                  the failure of any Loan Party or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Sections 2.1 [Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests; Swing Loan Requests], 2.6 [Making Revolving Credit Loans and Swing Loans; Etc.] or 7.2 [Each Loan or Letter of Credit] or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make Participation Advances under Section 2.9.3 [Disbursements, Reimbursement];

 

(iii)                               any lack of validity or enforceability of any Letter of Credit;

 

(iv)                              any claim of breach of warranty that might be made by any Loan Party or any Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Loan Party or any Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Issuing Lender or its Affiliates or any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit was procured);

 

(v)                                 the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provision of services relating to a Letter of Credit, in each case even if the Issuing Lender or any of its Affiliates has been notified thereof;

 

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(vi)                              payment by the Issuing Lender or any of its Affiliates under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;

 

(vii)                           the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

 

(viii)                        any failure by the Issuing Lender or any of its Affiliates to issue any Letter of Credit in the form requested by any Loan Party, unless the Issuing Lender has received written notice from such Loan Party of such failure within three Business Days after the Issuing Lender shall have furnished such Loan Party and the Administrative Agent a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;

 

(ix)                                any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Loan Party or Subsidiaries of a Loan Party;

 

(x)                                   any breach of this Agreement or any other Loan Document by any party thereto;

 

(xi)                                the occurrence or continuance of an Insolvency Proceeding with respect to any Loan Party;

 

(xii)                             the fact that an Event of Default or a Potential Default shall have occurred and be continuing;

 

(xiii)                          the fact that the Expiration Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and

 

(xiv)                         any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

 

2.9.8                                  Indemnity.  The Borrower hereby agrees to protect, indemnify, pay and save harmless the Issuing Lender and any of its Affiliates that has issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) which the Issuing Lender or any of its Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence or willful misconduct of the Issuing Lender as determined by a final non-appealable judgment of a court of competent jurisdiction or (B) the wrongful dishonor by the Issuing Lender or any of Issuing Lender’s Affiliates of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Official Body.

 

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2.9.9                                  Liability for Acts and Omissions.  As between any Loan Party and the Issuing Lender, or the Issuing Lender’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, the Issuing Lender shall not be responsible for any of the following, including any losses or damages to any Loan Party or other Person or property relating therefrom:  (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the Issuing Lender or its Affiliates shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any Loan Party and any beneficiary of any Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Issuing Lender or its Affiliates, as applicable, including any act or omission of any Official Body, and none of the above shall affect or impair, or prevent the vesting of, any of the Issuing Lender’s or its Affiliates rights or powers hereunder.  Nothing in the preceding sentence shall relieve the Issuing Lender from liability for the Issuing Lender’s gross negligence or willful misconduct in connection with actions or omissions described in such clauses (i) through (viii) of such sentence.  In no event shall the Issuing Lender or its Affiliates be liable to any Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

 

Without limiting the generality of the foregoing, the Issuing Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the Issuing Lender or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices

 

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of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Issuing Lender or its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

 

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Issuing Lender or its Affiliates under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Issuing Lender or its Affiliates under any resulting liability to the Borrower or any Lender.

 

2.9.10                            Issuing Lender Reporting Requirements.  Each Issuing Lender shall, on the first Business Day of each month, provide to Administrative Agent and Borrower a schedule of the Letters of Credit issued by it, in form and substance satisfactory to Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), and the expiration date of any Letter of Credit outstanding at any time during the preceding month, and any other information relating to such Letter of Credit that the Administrative Agent may request.

 

2.10                           Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

(i)                                     fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.3 [Commitment Fees];

 

(ii)                                  the Commitment and outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.1 [Modifications, Amendments or Waivers]); provided, that this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;

 

(iii)                               if any Swing Loans are outstanding or any Letter of Credit Obligations exist at the time such Lender becomes a Defaulting Lender, then:

 

(a)                                  all or any part of the outstanding Swing Loans and Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Ratable Shares but only to the extent that (x) the Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such time;

 

(b)                                 if the reallocation described in clause (a) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash

 

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collateralize for the benefit of the Issuing Lender the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in a deposit account held at the Administrative Agent for so long as such Letter of Credit Obligations are outstanding;

 

(c)                                  if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Obligations pursuant to clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender’s Letter of Credit Obligations during the period such Defaulting Lender’s Letter of Credit Obligations are cash collateralized;

 

(d)                                 if the Letter of Credit Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (a) above, then the fees payable to the Lenders pursuant to Section 2.9.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Ratable Share; and

 

(e)                                  if all or any portion of such Defaulting Lender’s Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (a) or (b) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all Letter of Credit Fees payable under Section 2.9.2 with respect to such Defaulting Lender’s Letter of Credit Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized; and

 

(iv)                              so long as such Lender is a Defaulting Lender, PNC shall not be required to fund any Swing Loans and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless PNC or such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.10(iii), and participating interests in any newly made Swing Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.10(iii)(a) (and such Defaulting Lender shall not participate therein).

 

If (i) a Bankruptcy Event with respect to a parent company of any Lender shall occur following the date hereof and for so long as such event shall continue, or (ii) PNC or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, PNC shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless PNC or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to PNC or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.

 

In the event that the Administrative Agent, the Borrower, PNC and the Issuing Lender agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, and the Ratable Share of the Swing Loans and Letter of Credit Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Loans) as the

 

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Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Ratable Share.

 

2.11                           Increase in Revolving Credit Commitments.

 

(i)                                     Increasing Lenders and New Lenders.  The Borrower may, at any time prior to the Expiration Date, make one (1) request that (1) the current Lenders increase their Revolving Credit Commitments (any current Lender which elects to increase its Revolving Credit Commitment shall be referred to as an “Increasing Lender”) or (2) one or more new lenders (each a “New Lender”) join this Agreement and provide a Revolving Credit Commitment hereunder, subject to the following terms and conditions:

 

a.                                       No Obligation to Increase.  No current Lender shall be obligated to increase its Revolving Credit Commitment and any increase in the Revolving Credit Commitment by any current Lender shall be in the sole discretion of such current Lender.

 

b.                                      Defaults.  There shall exist no Events of Default or Potential Default on the effective date of such increase after giving effect to such increase.

 

c.                                       Aggregate Revolving Credit Commitments.  The increase in the Revolving Credit Commitment shall not be more than $50,000,000 in the aggregate.  After giving effect to such increase, the total Revolving Credit Commitments shall not exceed $350,000,000.

 

d.                                      Minimum Revolving Credit Commitments.  After giving effect to such increase, the amount of the Revolving Credit Commitments provided by each of the New Lenders and each of the Increasing Lenders shall be at least $10,000,000; and

 

e.                                       Resolutions; Opinion; Mortgage Amendments; Compliance with Flood Laws.  The Loan Parties shall deliver to the Administrative Agent on or before the effective date of such increase the following documents in a form reasonably acceptable to the Administrative Agent: (1) certifications of their corporate secretaries with attached resolutions certifying that the increase in the Revolving Credit Commitment has been approved by such Loan Parties, (2) an opinion of counsel addressed to the Administrative Agent and the Lenders addressing the authorization, execution and enforceability of the Loan Documents executed in connection with such increase in the Revolving Credit Commitments, (3) amendments to the Mortgages executed and delivered by the applicable Loan Parties to the Administrative Agent for the benefit of the Lenders to reflect the increase in Revolving Credit Commitments, in form and substance reasonably satisfactory to the Administrative Agent and (4) evidence that the Loan Parties have taken all actions required under the National Flood Insurance Reform Act of 1994 and other Laws related thereto (“Flood Laws”) and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that is or will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral.  The Loan Parties shall cause the

 

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amendments described in clause (3) to be properly recorded and/or filed in the applicable filing or recording offices.  Notwithstanding the preceding, with respect to each Mortgage existing as of the effective date of such increase, if there shall be delivered to the Administrative Agent, for the benefit of the Lenders, a written opinion of local counsel in the jurisdiction in which real property subject to such Mortgage is located substantially to the effect that no documents, instruments, filings recordings, re-recordings, re-filings or other actions, including the payment of any mortgage recording taxes or similar taxes, are required under applicable Law in order to maintain the continued enforceability, validity or priority of the Lien created by such Mortgage as security for the Obligations, for the benefit of the Lenders, mortgage amendments with respect to Mortgages for real property located in such jurisdiction will not be required.

 

f.                                         Notes.  The Borrower shall execute and deliver (1) to each Increasing Lender a replacement revolving credit Note reflecting the new amount of such Increasing Lender’s Revolving Credit Commitment after giving effect to the increase (and the prior Note issued to such Increasing Lender shall be deemed to be terminated) and (2) to each New Lender a revolving credit Note reflecting the amount of such New Lender’s Revolving Credit Commitment.

 

g.                                      Approval of New Lenders.  Any New Lender shall be subject to the approval of the Administrative Agent.

 

h.                                      Increasing Lenders.  Each Increasing Lender shall confirm its agreement to increase its Revolving Credit Commitment pursuant to an acknowledgement in a form acceptable to the Administrative Agent, signed by it and the Borrower and delivered to the Administrative Agent at least five (5) days before the effective date of such increase.

 

i.                                          New Lenders—Joinder.  Each New Lender shall execute a lender joinder in substantially the form of Exhibit 2.11 pursuant to which such New Lender shall join and become a party to this Agreement and the other Loan Documents with a Revolving Credit Commitment in the amount set forth in such lender joinder.

 

(ii)                                  Treatment of Outstanding Loans and Letters of Credit.

 

(a)                                  Repayment of Outstanding Loans; Borrowing of New Loans.  On the effective date of such increase, the Borrower shall repay all Loans then outstanding, subject to the Borrower’s indemnity obligations under Section 5.10 [Indemnity]; provided that it may borrow new Loans with a Borrowing Date on such date. Each of the Lenders shall participate in any new Loans made on or after such date in accordance with their respective Ratable Shares after giving effect to the increase in Revolving Credit Commitments contemplated by this Section 2.5.

 

(b)                                 Outstanding Letters of Credit. Repayment of Outstanding Loans; Borrowing of New Loans.  On the effective date of such increase, each Increasing Lender and each New Lender (i) will be deemed to have purchased a participation in each then outstanding Letter of Credit equal to its Ratable Share of such Letter of Credit and the participation of each other Lender in such Letter of Credit shall be adjusted accordingly and (ii) will acquire, (and will pay to the Administrative Agent, for the account of each Lender, in

 

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immediately available funds, an amount equal to) its Ratable Share of all outstanding Participation Advances.

 

2.12                           Reduction of Revolving Credit Commitment.  The Borrower shall have the right at any time after the Closing Date upon five (5) days’ prior written notice to the Administrative Agent to permanently reduce (ratably among the Lenders in proportion to their Ratable Shares) the Revolving Credit Commitments, in whole multiples of $1,000,000, or to terminate completely the Revolving Credit Commitments, without penalty or premium except as hereinafter set forth; provided that any such reduction or termination shall be accompanied by prepayment of the Notes, together with outstanding Commitment Fees, and the full amount of interest accrued on the principal sum to be prepaid (and all amounts referred to in Section 5.10 [Indemnity] hereof) to the extent necessary to cause the aggregate Revolving Facility Usage after giving effect to such prepayments to be equal to or less than the Revolving Credit Commitments as so reduced or terminated.  Any notice to reduce the Revolving Credit Commitments under this Section 2.1. shall be irrevocable.

 

3.                                       RESERVED

 

4.                                       INTEREST RATES

 

4.1                                 Interest Rate Options.  The Borrower shall pay interest in respect of the outstanding unpaid principal amount of the Loans as selected by it from the Base Rate Option or LIBOR Rate Option set forth below applicable to the Loans, it being understood that, subject to the provisions of this Agreement, the Borrower may select different Interest Rate Options and different Interest Periods to apply simultaneously to the Loans comprising different Borrowing Tranches and may convert to or renew one or more Interest Rate Options with respect to all or any portion of the Loans comprising any Borrowing Tranche; provided that there shall not be at any one time outstanding more than five (5) Borrowing Tranches in the aggregate among all of the Loans and provided further that if an Event of Default or Potential Default exists and is continuing, the Borrower may not request, convert to, or renew the LIBOR Rate Option for any Loans and the Required Lenders may demand that all existing Borrowing Tranches bearing interest under the LIBOR Rate Option shall be converted immediately to the Base Rate Option, subject to the obligation of the Borrower to pay any indemnity under Section 5.10 [Indemnity] in connection with such conversion.  If at any time the designated rate applicable to any Loan made by any Lender exceeds such Lender’s highest lawful rate, the rate of interest on such Lender’s Loan shall be limited to such Lender’s highest lawful rate.

 

4.1.1                                  Revolving Credit Interest Rate Options; Swing Line Interest Rate.  The Borrower shall have the right to select from the following Interest Rate Options applicable to the Revolving Credit Loans:

 

(i)                                     Revolving Credit Base Rate Option:  A fluctuating rate per annum (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) equal to the Base Rate plus the Applicable Margin, such interest rate to change automatically from time to time effective as of the effective date of each change in the Base Rate; or

 

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(ii)                                  Revolving Credit LIBOR Rate Option:  A rate per annum (computed on the basis of a year of 360 days and actual days elapsed) equal to the LIBOR Rate plus the Applicable Margin.

 

Subject to Section 4.3 [Interest After Default], only the Base Rate Option applicable to Revolving Credit Loans shall apply to the Swing Loans.

 

4.1.2                        Intentionally Omitted.

 

4.1.3                                  Rate Quotations.  The Borrower may call the Administrative Agent on or before the date on which a Loan Request is to be delivered to receive an indication of the rates then in effect, but it is acknowledged that such projection shall not be binding on the Administrative Agent or the Lenders nor affect the rate of interest which thereafter is actually in effect when the election is made.

 

4.2                                 Interest Periods.  At any time when the Borrower shall select, convert to or renew a LIBOR Rate Option, the Borrower shall notify the Administrative Agent thereof at least three (3) Business Days prior to the effective date of such LIBOR Rate Option by delivering a Loan Request.  The notice shall specify an Interest Period during which such Interest Rate Option shall apply.  Notwithstanding the preceding sentence, the following provisions shall apply to any selection of, renewal of, or conversion to a LIBOR Rate Option:

 

4.2.1                                  Amount of Borrowing Tranche.  Each Borrowing Tranche of Loans under the LIBOR Rate Option shall be in integral multiples of $2,000,000 and not less than $2,000,000; and

 

4.2.2                                  Renewals.  In the case of the renewal of a LIBOR Rate Option at the end of an Interest Period, the first day of the new Interest Period shall be the last day of the preceding Interest Period, without duplication in payment of interest for such day.

 

4.3                                 Interest After Default.  To the extent permitted by Law, upon the occurrence of an Event of Default and until such time such Event of Default shall have been cured or waived, at the discretion of the Administrative Agent or upon written demand by the Required Lenders to the Administrative Agent:

 

4.3.1                                  Letter of Credit Fees, Interest Rate.  The Letter of Credit Fees and the rate of interest for each Loan otherwise applicable pursuant to Section 2.9.2 [Letter of Credit Fees] or Section 4.1 [Interest Rate Options], respectively, shall be increased by 2.0% per annum;

 

4.3.2                                  Other Obligations.  Each other Obligation hereunder if not paid when due shall bear interest at a rate per annum equal to the sum of the rate of interest applicable under the Revolving Credit Base Rate Option plus an additional 2.0% per annum from the time such Obligation becomes due and payable and until it is paid in full; and

 

4.3.3                                  Acknowledgment.  The Borrower acknowledges that the increase in rates referred to in this Section 4.3 reflects, among other things, the fact that such Loans or other amounts have become a substantially greater risk given their default status and that the Lenders

 

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are entitled to additional compensation for such risk; and all such interest shall be payable by Borrower upon demand by Administrative Agent.

 

4.4                                 LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.

 

4.4.1                                  Unascertainable.  If on any date on which a LIBOR Rate would otherwise be determined, the Administrative Agent shall have determined that:

 

(i)                                     adequate and reasonable means do not exist for ascertaining such LIBOR Rate, or

 

(ii)                                  a contingency has occurred which materially and adversely affects the London interbank eurodollar market relating to the LIBOR Rate, the Administrative Agent shall have the rights specified in Section 4.4.3 [Administrative Agent’s and Lender’s Rights].

 

4.4.2                                  Illegality; Increased Costs; Deposits Not Available.  If at any time any Lender shall have determined that:

 

(i)                                     the making, maintenance or funding of any Loan to which a LIBOR Rate Option applies has been made impracticable or unlawful by compliance by such Lender in good faith with any Law or any interpretation or application thereof by any Official Body or with any request or directive of any such Official Body (whether or not having the force of Law), or

 

(ii)                                  such LIBOR Rate Option will not adequately and fairly reflect the cost to such Lender of the establishment or maintenance of any such Loan, or

 

(iii)                               after making all reasonable efforts, deposits of the relevant amount in Dollars for the relevant Interest Period for a Loan, or to banks generally, to which a LIBOR Rate Option applies, respectively, are not available to such Lender with respect to such Loan, or to banks generally, in the interbank eurodollar market,

 

then the Administrative Agent shall have the rights specified in Section 4.4.3 [Administrative Agent’s and Lender’s Rights].

 

4.4.3                                  Administrative Agent’s and Lender’s Rights.  In the case of any event specified in Section 4.4.1 [Unascertainable] above, the Administrative Agent shall promptly so notify the Lenders and the Borrower thereof, and in the case of an event specified in Section 4.4.2 [Illegality; Increased Costs; Deposits Not Available] above, such Lender shall promptly so notify the Administrative Agent and endorse a certificate to such notice as to the specific circumstances of such notice, and the Administrative Agent shall promptly send copies of such notice and certificate to the other Lenders and the Borrower.  Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the obligation of (A) the Lenders, in the case of such notice given by the Administrative Agent, or (B) such Lender, in the case of such notice given by such Lender, to allow the Borrower to select, convert to or renew a LIBOR Rate Option shall be suspended until the Administrative Agent shall have later notified the Borrower, or such Lender shall have later notified the Administrative Agent, of the Administrative Agent’s or such Lender’s, as the case may be, determination that the circumstances giving rise to such previous determination no longer exist.

 

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If at any time the Administrative Agent makes a determination under Section 4.4.1 [Unascertainable] and the Borrower has previously notified the Administrative Agent of its selection of, conversion to or renewal of a LIBOR Rate Option and such Interest Rate Option has not yet gone into effect, such notification shall be deemed to provide for selection of, conversion to or renewal of the Base Rate Option otherwise available with respect to such Loans.  If any Lender notifies the Administrative Agent of a determination under Section 4.4.2 [Illegality; Increased Costs; Deposits Not Available], the Borrower shall, subject to the Borrower’s indemnification Obligations under Section 5.10 [Indemnity], as to any Loan of the Lender to which a LIBOR Rate Option applies, on the date specified in such notice either convert such Loan to the Base Rate Option otherwise available with respect to such Loan or prepay such Loan in accordance with Section 5.6 [Voluntary Prepayments].  Absent due notice from the Borrower of conversion or prepayment, such Loan shall automatically be converted to the Base Rate Option otherwise available with respect to such Loan upon such specified date.

 

4.5                                 Selection of Interest Rate Options.  If the Borrower fails to select a new Interest Period to apply to any Borrowing Tranche of Loans under the LIBOR Rate Option at the expiration of an existing Interest Period applicable to such Borrowing Tranche in accordance with the provisions of Section 4.2 [Interest Periods], the Borrower shall be deemed to have converted such Borrowing Tranche to the Revolving Credit Base Rate Option, commencing upon the last day of the existing Interest Period.

 

5.                                       PAYMENTS

 

5.1                                 Payments.  All payments and prepayments to be made in respect of principal, interest, Commitment Fees, Letter of Credit Fees, Administrative Agent’s Fee or other fees or amounts due from the Borrower hereunder shall be payable prior to 11:00 a.m. Pittsburgh time on the date when due without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower, and without set-off, counterclaim or other deduction of any nature, and an action therefor shall immediately accrue.  Such payments shall be made to the Administrative Agent at the Principal Office for the account of PNC with respect to the Swing Loans and for the ratable accounts of the Lenders with respect to the Revolving Credit Loans in U.S. Dollars and in immediately available funds, and the Administrative Agent shall promptly distribute such amounts to the Lenders in immediately available funds; provided that in the event payments are received by 11:00 a.m. Pittsburgh time by the Administrative Agent with respect to the Loans and such payments are not distributed to the Lenders on the same day received by the Administrative Agent, the Administrative Agent shall pay the Lenders the Federal Funds Effective Rate with respect to the amount of such payments for each day held by the Administrative Agent and not distributed to the Lenders.  The Administrative Agent’s and each Lender’s statement of account, ledger or other relevant record shall, in the absence of manifest error, be conclusive as the statement of the amount of principal of and interest on the Loans and other amounts owing under this Agreement and shall be deemed an “account stated.”

 

5.2                                 Pro Rata Treatment of Lenders.  Each borrowing of Revolving Credit Loans shall be allocated to each Lender according to its Ratable Share, and each selection of, conversion to or renewal of any Interest Rate Option and each payment or prepayment by the Borrower with respect to principal, interest, Commitment Fees and Letter of Credit Fees (but excluding the Administrative Agent’s Fee and the Issuing Lender’s fronting fee) shall (except as otherwise may

 

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be provided with respect to a Defaulting Lender and except as provided in Section 4.4.3 [Administrative Agent’s and Lender’s Rights] in the case of an event specified in Section 4.4 [LIBOR Rate Unascertainable; Etc.], 5.6.2 [Replacement of a Lender] or 5.8 [Increased Costs]) be payable ratably among the Lenders entitled to such payment in accordance with the amount of principal, interest, Commitment Fees and Letter of Credit Fees, as set forth in this Agreement.  Notwithstanding any of the foregoing, each borrowing or payment or prepayment by the Borrower of principal, interest, fees or other amounts from the Borrower with respect to Swing Loans shall be made by or to PNC according to Section 2.6.5 [Borrowings to Repay Swing Loans].

 

5.3                                 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff, counterclaim or banker’s lien, by receipt of voluntary payment, by realization upon security, or by any other non-pro rata source, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than the pro-rata share of the amount such Lender is entitled thereto, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

 

(i)                                     if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, together with interest or other amounts, if any, required by Law (including court order) to be paid by the Lender or the holder making such purchase; and

 

(ii)                                  the provisions of this Section 5.3 shall not be construed to apply to (x) any payment made by the Loan Parties pursuant to and in accordance with the express terms of the Loan Documents or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Participation Advances to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 5.3 shall apply).

 

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.

 

5.4                                 Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Lender, as the case may be, the amount due.

 

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In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

5.5                                 Interest Payment Dates.  Interest on Loans to which the Base Rate Option applies shall be due and payable in arrears on the first day of each October, January, April and July after the date hereof and on the Expiration Date or upon acceleration of the Notes.  Interest on Loans to which the LIBOR Rate Option applies shall be due and payable on the last day of each Interest Period for those Loans and, if such Interest Period is longer than three (3) Months, also on the 90th day of such Interest Period.  Interest on the principal amount of each Loan or other monetary Obligation shall be due and payable on demand after such principal amount or other monetary Obligation becomes due and payable (whether on the stated Expiration Date, upon acceleration or otherwise).

 

5.6                                 Voluntary Prepayments.

 

5.6.1                                  Right to Prepay.  The Borrower shall have the right at its option from time to time to prepay the Loans in whole or part without premium or penalty (except as provided in Section 5.6.2 [Replacement of a Lender] below, in Section 5.8 [Increased Costs] and Section 5.10 [Indemnity]).  Whenever the Borrower desires to prepay any part of the Loans, it shall provide a prepayment notice to the Administrative Agent by 1:00 p.m. at least one (1) Business Day prior to the date of prepayment of the Revolving Credit Loans or no later than 1:00 p.m. on the date of prepayment of Swing Loans, setting forth the following information:

 

(w)                               the date, which shall be a Business Day, on which the proposed prepayment is to be made;

 

(x)                                   a statement indicating the application of the prepayment between the Revolving Credit Loans and Swing Loans;

 

(y)                                 a statement indicating the application of the prepayment between Loans to which the Base Rate Option applies and Loans to which the LIBOR Rate Option applies; and

 

(z)                                   the total principal amount of such prepayment, which shall not be less than the lesser of (i) the Revolving Facility Usage or (ii) $100,000 for any Swing Loan or $1,000,000 for any Revolving Credit Loan.

 

All prepayment notices shall be irrevocable.  The principal amount of the Loans for which a prepayment notice is given, together with interest on such principal amount except with respect to Loans to which the Base Rate Option applies, shall be due and payable on the date specified in such prepayment notice as the date on which the proposed prepayment is to be made.  Except as provided in Section 4.4.3 [Administrative Agent’s and Lender’s Rights], if the Borrower prepays a Loan but fails to specify the applicable Borrowing Tranche which the Borrower is prepaying, the prepayment shall be applied first to Loans to which the Base Rate

 

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Option applies, then to Loans to which the LIBOR Rate Option applies.  Any prepayment hereunder shall be subject to the Borrower’s Obligation to indemnify the Lenders under Section 5.10 [Indemnity].

 

5.6.2                                  Replacement of a Lender.  In the event any Lender (i) gives notice under Section 4.4 [LIBOR Rate Unascertainable, Etc.], (ii) requests compensation under Section 5.8 [Increased Costs], or requires the Borrower to pay any additional amount to any Lender or any Official Body for the account of any Lender pursuant to Section 5.9 [Taxes], (iii) is a Defaulting Lender, (iv) becomes subject to the control of an Official Body (other than normal and customary supervision), or (v) is a Non-Consenting Lender referred to in Section 11.1 [Modifications, Amendments or Waivers], then in any such event the Borrower may, at its sole expense, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.8 [Successors and Assigns]), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

 

(i)                                     the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 11.8 [Successors and Assigns];

 

(ii)                                  such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and Participation Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 5.10 [Indemnity]) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

 

(iii)                               in the case of any such assignment resulting from a claim for compensation under Section 5.8.1 [Increased Costs Generally] or payments required to be made pursuant to Section 5.9 [Taxes], such assignment will result in a reduction in such compensation or payments thereafter; and

 

(iv)                              such assignment does not conflict with applicable Law.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

5.7                                 Intentionally Omitted.

 

5.8                                 Increased Costs.

 

5.8.1                                  Increased Costs Generally.  If any Change in Law shall:

 

(i)                                     impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR Rate) or the Issuing Lender;

 

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(ii)           subject any Lender or the Issuing Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Loan under the LIBOR Rate Option made by it, or change the basis of taxation of payments to such Lender or the Issuing Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 5.9 [Taxes] and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the Issuing Lender); or

 

(iii)          impose on any Lender, the Issuing Lender or the London interbank market any other condition, cost or expense affecting this Agreement or any Loan under the LIBOR Rate Option made by such Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan under the LIBOR Rate Option (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the Issuing Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the Issuing Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the Issuing Lender, the Borrower will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender, as the case may be, for such additional costs incurred or reduction suffered.

 

5.8.2           Capital and Liquidity Requirements.  If any Lender or the Issuing Lender determines that any Change in Law affecting such Lender or the Issuing Lender or any lending office of such Lender or such Lender’s or the Issuing Lender’s holding company, if any, regarding capital and liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Lender’s capital or on the capital of such Lender’s or the Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Loans held by, such Lender, or the Letters of Credit issued by the Issuing Lender, to a level below that which such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Lender’s policies and the policies of such Lender’s or the Issuing Lender’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company for any such reduction suffered.

 

5.8.3           Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans.  A certificate of a Lender or the Issuing Lender setting forth the amount or amounts necessary to compensate such Lender or the Issuing Lender or its holding company, as the case may be, as specified in Sections 5.8.1 [Increased Costs Generally] or 5.8.2 [Capital and Liquidity Requirements] and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the Issuing Lender, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.

 

5.8.4           Delay in Requests.  Failure or delay on the part of any Lender or the Issuing Lender to demand compensation pursuant to this Section shall not constitute a waiver of

 

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such Lender’s or the Issuing Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or the Issuing Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the Issuing Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to include the period of retroactive effect thereof).

 

5.9           Taxes.

 

5.9.1           Payments Free of Taxes.  Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required by applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender or Issuing Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the relevant Official Body in accordance with applicable Law.

 

5.9.2           Payment of Other Taxes by the Borrower.  Without limiting the provisions of Section 5.9.1 [Payments Free of Taxes] above, the Borrower shall timely pay any Other Taxes to the relevant Official Body in accordance with applicable Law.

 

5.9.3           Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent, such Lender or the Issuing Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Official Body.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the Issuing Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Lender, shall be conclusive absent manifest error.

 

5.9.4           Evidence of Payments.  As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to an Official Body, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

5.9.5           Status of Lenders.  Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the Law of the jurisdiction in which the Borrower is

 

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resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding.  Notwithstanding the submission of such documentation claiming a reduced rate of or exemption from U.S. withholding tax, the Administrative Agent shall be entitled to withhold United States federal income taxes at the full 30% withholding rate if in its reasonable judgment it is required to do so under the due diligence requirements imposed upon a withholding agent under § 1.1441-7(b) of the United States Income Tax Regulations.  Further, the Administrative Agent is indemnified under § 1.1461-1(e) of the United States Income Tax Regulations against any claims and demands of any Lender or assignee or participant of a Lender for the amount of any tax it deducts and withholds in accordance with regulations under § 1441 of the Internal Revenue Code.  In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

 

Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States of America, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

 

(i)            two (2) duly completed valid originals of IRS Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States of America is a party,

 

(ii)           two (2) duly completed valid originals of IRS Form W-8ECI,

 

(iii)          in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code and (y) two duly completed valid originals of IRS Form W-8BEN,

 

(iv)          any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower to determine the withholding or deduction required to be made, or

 

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(v)           To the extent that any Lender is not a Foreign Lender, such Lender shall submit to the Administrative Agent two (2) originals of an IRS Form W-9 or any other form prescribed by applicable Law demonstrating that such Lender is not a Foreign Lender.

 

5.10         Indemnity.  In addition to the compensation or payments required by Section 5.8 [Increased Costs]or Section 5.9 [Taxes], the Borrower shall indemnify each Lender against all liabilities, losses or expenses (including loss of anticipated profits, any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract) which such Lender sustains or incurs as a consequence of any:

 

(i)            payment, prepayment, conversion or renewal of any Loan to which a LIBOR Rate Option applies on a day other than the last day of the corresponding Interest Period (whether or not such payment or prepayment is mandatory, voluntary or automatic and whether or not such payment or prepayment is then due),

 

(ii)           attempt by the Borrower to revoke (expressly, by later inconsistent notices or otherwise) in whole or part any Loan Requests under Section 2.5 [Revolving Credit Loan Requests; Swing Loan Requests] or Section 4.2 [Interest Periods] or notice relating to prepayments under Section 5.6 [Voluntary Prepayments], or

 

(iii)          default by the Borrower in the performance or observance of any covenant or condition contained in this Agreement or any other Loan Document, including any failure of the Borrower to pay when due (by acceleration or otherwise) any principal, interest, Commitment Fee or any other amount due hereunder.

 

If any Lender sustains or incurs any such loss or expense, it shall from time to time notify the Borrower of the amount determined in good faith by such Lender (which determination may include such assumptions, allocations of costs and expenses and averaging or attribution methods as such Lender shall deem reasonable) to be necessary to indemnify such Lender for such loss or expense.  Such notice shall set forth in reasonable detail the basis for such determination.  Such amount shall be due and payable by the Borrower to such Lender ten (10) Business Days after such notice is given.

 

5.11         Settlement Date Procedures. In order to minimize the transfer of funds between the Lenders and the Administrative Agent, the Borrower may borrow, repay and reborrow Swing Loans and PNC may make Swing Loans as provided in Section 2.1.2 [Swing Loan Commitments] hereof during the period between Settlement Dates.  The Administrative Agent shall notify each Lender of its Ratable Share of the total of the Revolving Credit Loans and the Swing Loans (each a “Required Share”).  On such Settlement Date, each Lender shall pay to the Administrative Agent the amount equal to the difference between its Required Share and its Revolving Credit Loans, and the Administrative Agent shall pay to each Lender its Ratable Share of all payments made by the Borrower to the Administrative Agent with respect to the Revolving Credit Loans.  The Administrative Agent shall also effect settlement in accordance with the foregoing sentence on the proposed Borrowing Dates for Revolving Credit Loans and may at its option effect settlement on any other Business Day.  These settlement procedures are

 

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established solely as a matter of administrative convenience, and nothing contained in this Section 5.11 shall relieve the Lenders of their obligations to fund Revolving Credit Loans on dates other than a Settlement Date pursuant to Section 2.1.2 [Swing Loan Commitment].  The Administrative Agent may at any time at its option for any reason whatsoever require each Lender to pay immediately to the Administrative Agent such Lender’s Ratable Share of the outstanding Revolving Credit Loans (to the extent not previously paid) and each Lender may at any time require the Administrative Agent to pay immediately to such Lender its Ratable Share of all payments made by the Borrower to the Administrative Agent with respect to the Revolving Credit Loans.

 

6.             REPRESENTATIONS AND WARRANTIES

 

6.1           Representations and Warranties.  The Loan Parties, jointly and severally, represent and warrant to the Administrative Agent and each of the Lenders as follows:

 

6.1.1           Organization and Qualification.  Each Loan Party and each Subsidiary of each Loan Party is a corporation, partnership or limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.  Each Loan Party and each Subsidiary of each Loan Party has the lawful power to own or lease its properties and to engage in the business it presently conducts or proposes to conduct.  Each Loan Party and each Subsidiary of each Loan Party is duly licensed or qualified and in good standing in each jurisdiction listed on Schedule 6.1.1 and in all other jurisdictions where the property owned or leased by it or the nature of the business transacted by it or both makes such licensing or qualification necessary except to the extent that the failure to be so licensed or qualified or in good standing would not reasonably be expected to result in any Material Adverse Change.

 

6.1.2           Capitalization and Ownership.  The issued and outstanding securities of the Borrower consist of member interests owned as indicated on Schedule 6.1.2.  All of the Borrower’s member interests have been validly issued and are fully paid and nonassessable.  There are no options, warrants or other rights outstanding to purchase any such member interests except as indicated on Schedule 6.1.2.

 

6.1.3           Subsidiaries.  Schedule 6.1.3 states the name of each of the Borrower’s Subsidiaries, its jurisdiction of organization, its authorized capital stock, the issued and outstanding shares (referred to herein as the “Subsidiary Shares”) and the owners thereof if it is a corporation, its outstanding partnership interests (the “Partnership Interests”) if it is a partnership and its outstanding limited liability company interests, interests assigned to managers thereof and the voting rights associated therewith (the “LLC Interests”) if it is a limited liability company.  The Borrower and each Subsidiary of the Borrower has good and marketable title to all of the Subsidiary Shares, Partnership Interests and LLC Interests it purports to own, free and clear in each case of any Lien (other than Liens granted under the Loan Documents).  All Subsidiary Shares, Partnership Interests and LLC Interests have been validly issued, and all Subsidiary Shares are fully paid and nonassessable.  All capital contributions and other consideration required to be made or paid in connection with the issuance of the Partnership Interests and LLC Interests have been made or paid, as the case may be.  There are no options,  warrants or other rights outstanding to purchase any such Subsidiary Shares, Partnership Interests or LLC Interests except as indicated on Schedule 6.1.3.

 

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6.1.4           Power and Authority.  Each Loan Party has full power to enter into, execute, deliver and carry out this Agreement and the other Loan Documents to which it is a party, to incur the Indebtedness contemplated by the Loan Documents and to perform its Obligations under the Loan Documents to which it is a party, and all such actions have been duly authorized by all necessary proceedings on its part.

 

6.1.5           Validity and Binding Effect.  This Agreement has been duly and validly executed and delivered by each Loan Party, and each other Loan Document which any Loan Party is required to execute and deliver on or after the date hereof will have been duly executed and delivered by such Loan Party on the required date of delivery of such Loan Document.  This Agreement and each other Loan Document constitutes, or will constitute, legal, valid and binding obligations of each Loan Party which is or will be a party thereto on and after its date of delivery thereof, enforceable against such Loan Party in accordance with its terms, except to the extent that enforceability of any such Loan Document may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of creditors’ rights generally or limiting the right of specific performance.

 

6.1.6           No Conflict.  Neither the execution and delivery of this Agreement or the other Loan Documents by any Loan Party nor the consummation of the transactions herein or therein contemplated or compliance with the terms and provisions hereof or thereof by any of them will conflict with, constitute a default under or result in any breach of:  (i) the terms and conditions of the certificate of incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents of any Loan Party or (ii) any Law or any material agreement or instrument or order, writ, judgment, injunction or decree to which any Loan Party or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which it is subject, or result in the creation or enforcement of any Lien whatsoever upon any property (now or hereafter acquired) of any Loan Party or any of its Subsidiaries (other than Liens granted under the Loan Documents).

 

6.1.7           Litigation.  There are no actions, suits, proceedings or investigations pending or, to the knowledge of any Loan Party, threatened against such Loan Party or any Subsidiary of such Loan Party at law or equity before any Official Body which individually or in the aggregate may result in any Material Adverse Change.  None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of any order, writ, injunction or decree of any Official Body which may result in any Material Adverse Change.

 

6.1.8           Title to Properties.  Each Loan Party and each Subsidiary of each Loan Party has Mining Title to all Active Operating Properties that are necessary or appropriate for any of the Loan Parties and each Subsidiary of each Loan Party, taken as a whole, to conduct their operations substantially as contemplated by the Financial Projections, free and clear of all Liens and encumbrances except Permitted Liens, and subject to the terms and conditions of the applicable leases; provided, however, a Loan Party shall not be in breach of the foregoing in the event that:  (i) it fails to own a valid leasehold interest which, either considered alone or together with all other such valid leaseholds that it fails to own, is not material to the continued operations of such Loan Party as contemplated by the Financial Projections or (ii) the Loan Party’s interest

 

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in a leasehold is less than fully marketable because the consent of the lessor to future assignments has not been obtained.

 

6.1.9           Financial Statements.

 

(i)            Historical Statements.  The Borrower has delivered to the Administrative Agent copies of its audited consolidated year-end financial statements for the fiscal year ended December 31, 2010 (the “Annual Statements”).  In addition, the Borrower has delivered to the Administrative Agent copies of its unaudited consolidated interim financial statements for the fiscal year to date and as of the end of the fiscal quarter ended March 31, 2011 (the “Interim Statements”) (the Annual and Interim Statements being collectively referred to as the “Historical Statements”).  The Historical Statements were compiled from the books and records maintained by the Borrower’s management, are correct and complete and fairly represent the consolidated financial condition of the Borrower and its Subsidiaries as of their dates and the results of operations for the fiscal periods then ended and have been prepared in accordance with GAAP consistently applied, subject (in the case of the Interim Statements) to normal year-end audit adjustments.

 

(ii)           Financial Projections.  The Borrower has delivered to the Administrative Agent financial projections (including consolidated balance sheets, income statements and statements of cash flows) of the Loan Parties and the Subsidiaries of the Loan Parties for the fiscal years 2011 through 2015 derived from various assumptions of the Borrower’s management (the “Financial Projections”).  The Financial Projections represent a reasonable range of possible results in light of the history of the business, present and foreseeable conditions and the intentions of the Borrower’s management.  The Financial Projections accurately reflect the liabilities of the Loan Parties and the Subsidiaries of the Loan Parties upon consummation of the transactions contemplated hereby as of the Closing Date.

 

(iii)          Accuracy of Financial Statements.  Neither the Borrower nor any Subsidiary of the Borrower has any liabilities, contingent or otherwise, or forward or long-term commitments that are not disclosed in the Historical Statements or in the notes thereto, and except as disclosed therein, there are no unrealized or anticipated losses from any commitments of the Borrower or any Subsidiary of the Borrower which may cause a Material Adverse Change.  Since December 31, 2010, no Material Adverse Change has occurred.

 

6.1.10         Use of Proceeds; Margin Stock.

 

6.1.10.1         General.  The Loan Parties intend to use the proceeds of the Loans in accordance with Section 8.1.10 [Use of Proceeds].

 

6.1.10.2         Margin Stock.  None of the Loan Parties or any Subsidiaries of any Loan Party engages or intends to engage principally, or as one of its important activities, in the business of extending credit for the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin stock (within the meaning of Regulation U).  No part of the proceeds of any Loan has been or will be used, immediately, incidentally or ultimately, to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or to refund Indebtedness originally incurred for such purpose, or for

 

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any purpose which entails a violation of or which is inconsistent with the provisions of the regulations of the Board of Governors of the Federal Reserve System.  None of the Loan Parties or any Subsidiary of any Loan Party holds or intends to hold margin stock in such amounts that more than 25% of the reasonable value of the assets of any Loan Party or Subsidiary of any Loan Party are or will be represented by margin stock.

 

6.1.11         Full Disclosure.  Neither this Agreement nor any other Loan Document, nor any certificate, statement, agreement or other documents furnished to the Administrative Agent or any Lender in connection herewith or therewith, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein, in light of the circumstances under which they were made, not misleading.  There is no fact known to any Loan Party which materially adversely affects (i) the business, financial condition, results of operations or prospects of any Loan Party or Subsidiary of any Loan Party or (ii) the property or assets of the Loan Parties, taken as a whole, in each case, which has not been set forth in this Agreement or in the certificates, statements, agreements or other documents furnished in writing to the Administrative Agent and the Lenders prior to or at the date hereof in connection with the transactions contemplated hereby.

 

6.1.12         Taxes.  All federal, state, local and other tax returns required to have been filed with respect to each Loan Party and each Subsidiary of each Loan Party have been filed, and payment or adequate provision has been made for the payment of all taxes, fees, assessments and other governmental charges which have or may become due pursuant to said returns or to assessments received, except to the extent that such taxes, fees, assessments and other charges are being contested in good faith by appropriate proceedings diligently conducted and for which such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made.  There are no agreements or waivers extending the statutory period of limitations applicable to any federal income tax return of any Loan Party or Subsidiary of any Loan Party for any period.

 

6.1.13         Consents and Approvals.  Except for the filing of financing statements and certain other filings which must be made in connection with the Ancillary Security Documents (if required to be delivered by the terms hereof), no consent, approval, exemption, order or authorization of, or a registration or filing with, any Official Body or any other Person is required by any Law or any agreement in connection with the execution, delivery and carrying out of this Agreement and the other Loan Documents by any Loan Party, except as listed on Schedule 6.1.13, all of which shall have been obtained or made on or prior to the Closing Date except as otherwise indicated on Schedule 6.1.13.

 

6.1.14         No Event of Default; Compliance with Instruments.  No event has occurred and is continuing and no condition exists or will exist after giving effect to the borrowings or other extensions of credit to be made on the Closing Date under or pursuant to the Loan Documents which constitutes an Event of Default or Potential Default.  None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of:  (i) any term of its certificate of incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents or (ii) any material agreement or instrument to which it is a party or by which it or any of its properties may be subject or bound where such violation would constitute a Material Adverse Change.

 

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6.1.15         Patents, Trademarks, Copyrights, Licenses, Etc.  Each Loan Party and each Subsidiary of each Loan Party owns or possesses all the material patents, trademarks, service marks, trade names, copyrights, licenses, registrations, franchises, permits and rights necessary to own and operate its properties and to carry on its business as presently conducted and planned to be conducted by such Loan Party or Subsidiary, without known possible, alleged or actual conflict with the rights of others.  All material patents, trademarks, service marks, trade names, copyrights, licenses, registrations, franchises and permits of each Loan Party and each Subsidiary of each Loan Party are listed and described on Schedule 6.1.15.

 

6.1.16         Solvency.  (i) The fair value of each Loan Party’s assets exceed the total amount of liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Loan Party, (ii) the present fair salable value of the assets of each Loan Party exceed the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of each such Loan Party as they become absolute and matured, (iii) each Loan Party is able to pay its debts, including contingent liabilities, as they mature and become due, (iv) no Loan Party is or will be engaged in a business for which its capital is, or would be, unreasonably small, (v) no Loan Party is or will be engaged in a transaction for which the remaining assets of such Loan Party are or would be unreasonably small in relation to such business or transaction, (vi) no Loan Party has incurred (by way of assumption or otherwise) any obligation or liability (contingent, subordinated, unmatured and unliquidated or otherwise) under this Agreement or any of the other Loan Documents to which it is a party, nor has it made any conveyance pursuant to or in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Loan Party.

 

6.1.17         Intentionally Omitted.

 

6.1.18         Insurance.  Schedule 6.1.18 lists all insurance policies and other bonds to which any Loan Party or Subsidiary of any Loan Party is a party, all of which are valid and in full force and effect.  No notice has been given or claim made and no grounds exist to cancel or avoid any insurance policies or bonds of the Loan Parties or to reduce the coverage provided thereby.  Such policies and bonds provide adequate coverage from reputable and financially sound insurers in amounts sufficient to insure the assets and risks of each Loan Party and each Subsidiary of each Loan Party in accordance with prudent business practice in the industry of the Loan Parties and their Subsidiaries.  Such policies include flood insurance that is in full force and effect as required by the Flood Laws.

 

6.1.19         Compliance with Laws.  The Loan Parties and their Subsidiaries are in compliance in all material respects with all applicable Laws (other than Environmental Laws which are specifically addressed in Section 6.1.24 [Environmental Matters]) in all jurisdictions in which any Loan Party or Subsidiary of any Loan Party is presently or will be doing business except where the failure to do so would not constitute a Material Adverse Change.

 

6.1.20         Material Contracts; Burdensome Restrictions.  Schedule 6.1.20 lists all Material Contracts (including Material Leases) relating to the business operations of each Loan Party and each Subsidiary of any Loan Party, including all employee benefit plans and Labor Contracts.  All such Material Contracts are valid, binding and enforceable upon such Loan Party or Subsidiary and each of the other parties thereto in accordance with their respective terms, and

 

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there is no default thereunder, to the Loan Parties’ knowledge.  None of the Loan Parties or their Subsidiaries is bound by any contractual obligation, or subject to any restriction in any organization document, or any requirement of Law which could result in a Material Adverse Change.

 

6.1.21         Investment Companies; Regulated Entities.  None of the Loan Parties or any Subsidiaries of any Loan Party is an “investment company” registered or required to be registered under the Investment Company Act of 1940 or under the “control” of an “investment company” as such terms are defined in the Investment Company Act of 1940 and shall not become such an “investment company” or under such “control.”  None of the Loan Parties or any Subsidiaries of any Loan Party is subject to any other Federal or state statute or regulation limiting its ability to incur Indebtedness for borrowed money.

 

6.1.22         Plans and Benefit Arrangements.  Except as set forth on Schedule 6.1.22 (which collectively are not reasonably likely to result in a Material Adverse Change):

 

(i)            The Borrower and each other member of the ERISA Group are in compliance in all material respects with any applicable provisions of ERISA with respect to all Benefit Arrangements, Plans and Multiemployer Plans.  There has been no Prohibited Transaction with respect to any Benefit Arrangement or any Plan or, to the best knowledge of the Borrower, with respect to any Multiemployer Plan or Multiple Employer Plan, which could result in any material liability of the Borrower or any other member of the ERISA Group.  The Borrower and all other members of the ERISA Group have made when due any and all payments required to be made under any agreement relating to a Multiemployer Plan or a Multiple Employer Plan or any Law pertaining thereto.  With respect to each Plan and Multiemployer Plan, the Borrower and each other member of the ERISA Group:  (A) have fulfilled in all material respects their obligations under the minimum funding standards of ERISA, (B) have not incurred any liability to the PBGC, and (C) have not had asserted against them any penalty for failure to fulfill the minimum funding requirements of ERISA.

 

(ii)           To the best of the Borrower’s knowledge, each Multiemployer Plan and Multiple Employer Plan is able to pay benefits thereunder when due.

 

(iii)          Neither the Borrower nor any other member of the ERISA Group has instituted or intends to institute proceedings to terminate any Plan.

 

(iv)          No event requiring notice to the PBGC under Section 302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with respect to any Plan, and no amendment with respect to which security is required under Section 307 of ERISA has been made or is reasonably expected to be made to any Plan.

 

(v)           The aggregate actuarial present value of all benefit liabilities (whether or not vested) under each Plan, determined on a plan termination basis, as disclosed in, and as of the date of, the most recent actuarial report for such Plan, does not exceed the aggregate fair market value of the assets of such Plan; provided, however, that the Ohio retiree health plan has no assets, but the liability for such plan is carried on the books of the Borrower, which such liability would not reasonably be expected to result in any Material Adverse Change.

 

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(vi)          Neither the Borrower nor any other member of the ERISA Group has incurred or reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.  Neither the Borrower nor any other member of the ERISA Group has been notified by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer Plan has been terminated within the meaning of Title IV of ERISA and, to the best knowledge of the Borrower, no Multiemployer Plan or Multiple Employer Plan is reasonably expected to be reorganized or terminated, within the meaning of Title IV of ERISA.

 

(vii)         To the extent that any Benefit Arrangement is insured, the Borrower and all other members of the ERISA Group have paid when due all premiums required to be paid for all periods through the Closing Date.  To the extent that any Benefit Arrangement is funded other than with insurance, the Borrower and all other members of the ERISA Group have made when due all contributions required to be paid for all periods through the Closing Date.

 

(viii)        All Plans, Benefit Arrangements and Multiemployer Plans have been administered in accordance with their terms and applicable Law.

 

6.1.23         Employment Matters.  Each of the Loan Parties and each of their Subsidiaries is in compliance with the Labor Contracts and all applicable federal, state and local labor and employment Laws including those related to equal employment opportunity and affirmative action, labor relations, minimum wage, overtime, child labor, medical insurance continuation, worker adjustment and relocation notices, immigration controls and worker and unemployment compensation, where the failure to comply would constitute a Material Adverse Change.  There are no outstanding grievances, arbitration awards or appeals therefrom arising out of the Labor Contracts or current or threatened strikes, picketing, handbilling or other work stoppages or slowdowns at facilities of any of the Loan Parties or any of their Subsidiaries which in any case would constitute a Material Adverse Change.  The Borrower has delivered to the Administrative Agent true and correct copies of each of the Labor Contracts.

 

6.1.24         Environmental Matters.  Except for those items disclosed on Schedule 6.1.24 (which collectively are not reasonably likely to result in a Material Adverse Change):

 

(i)            Except for matters that, considered either individually or in the aggregate, have no reasonable likelihood of materially disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change, none of the Loan Parties has received any Environmental Complaint, which remains outstanding, or has any reason to believe that it might receive an Environmental Complaint which either individually or in the aggregate might materially disrupt the projected mining operations of the Loan Parties or result in any substantial obligation to the Loan Parties or otherwise result in a Material Adverse Change.

 

(ii)           No activity of any Loan Party on the Property is being or has been conducted, in violation of any Environmental Law or Required Environmental Permit and to the knowledge of any Loan Party no activity of any prior owner, operator or occupant of the Property was conducted in violation of any Environmental Law, except for activities that, considered either individually or in the aggregate, have no reasonable likelihood of materially

 

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disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change.

 

(iii)          To the knowledge of each Loan Party, there are no Regulated Substances present on, in, under, or emanating from, or to, the Property or any portion thereof which will result in Contamination except for such Regulated Substances that have no reasonable likelihood of materially disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change.

 

(iv)          Each Loan Party has all Required Environmental Permits and all such Required Environmental Permits are in full force and effect, except where the failure to have any Required Environmental Permits, either in any one case or considered together with other such failures, has no reasonable likelihood of materially disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change.

 

(v)           Each Loan Party has submitted to an Official Body and/or maintains, as appropriate, all Required Environmental Notices, except for Required Environmental Notices that have no reasonable likelihood of materially disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change.

 

(vi)          To the knowledge of each Loan Party, no structures, improvements, equipment, fixtures, impoundments, pits, lagoons or aboveground or underground storage tanks located on the Property contain or use Regulated Substances except (A) in compliance with Environmental Laws and Required Environmental Permits or (B) where the improper presence or use of Regulated Substances have no reasonable likelihood of materially disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change.  To the knowledge of each Loan Party, no structures, improvements, equipment, fixtures, impoundments, pits, lagoons or aboveground or underground storage tanks of prior owners, operators or occupants of the Property contained or used, except in material compliance with Environmental Laws, Regulated Substances or otherwise were operated or maintained by any such prior owner, operator or occupant except in compliance in all material respects with Environmental Laws.

 

(vii)         To the knowledge of each Loan Party, no facility or site to which any Loan Party, either directly or indirectly by a third party, has sent Regulated Substances for storage, treatment, disposal or other management has been or is being operated in violation of Environmental Laws or pursuant to Environmental Laws is identified or proposed to be identified on any list of contaminated properties or other properties which pursuant to Environmental Laws are the subject of an investigation, cleanup, removal, remediation or other response action by an Official Body except where such violation, either alone or considered together with all other such violations, has no reasonable likelihood of materially disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change.

 

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(viii)        No portion of the Property is identified or to the knowledge of any Loan Party proposed to be identified on any list of contaminated properties or other properties which pursuant to Environmental Laws are the subject of an investigation or remediation action by an Official Body, nor to the knowledge of any Loan Party is any property adjoining or in the proximity of the Property identified or proposed to be identified on any such list.

 

(ix)           No portion of the Property is identified or to the knowledge of any Loan Party proposed to be identified on any list of contaminated properties or other properties which pursuant to Environmental Laws are the subject of an investigation or remediation action by an Official Body, nor to the knowledge of any Loan Party is any property adjoining or in the proximity of the Property identified or proposed to be identified on any such list.

 

(x)            No portion of the Property constitutes an Environmentally Sensitive Area, except for portions of the Property that have no reasonable likelihood of materially disrupting the projected mining operations of the Loan Parties or resulting in any substantial obligation to the Loan Parties or otherwise resulting in a Material Adverse Change.

 

No Lien or other encumbrance authorized by Environmental Laws exists against the Property and none of the Loan Parties has any reason to believe that such a Lien or encumbrance may be imposed.

 

6.1.25         Bonding Capacity.  Each of the Loan Parties has a sufficient mine bonding capacity to conduct its operations as projected in accordance with the Financial Projections provided to the Administrative Agent.

 

6.1.26         Permit Blockage.  No Loan Party has been barred for a period in excess of fourteen (14) consecutive days from receiving surface mining or underground mining permits pursuant to the permit block provisions of the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201 et seq., and the regulations promulgated thereto, or any corresponding state laws or regulations.

 

6.1.27         Security Interests.  The Liens granted to the Administrative Agent for the benefit of the Lenders pursuant to the Patent, Trademark and Copyright Security Agreement, the Pledge Agreements and the Security Agreement in the Collateral (other than the Property) constitute and will continue to constitute, subject to filing of all necessary financing statements in compliance with applicable Law as hereinafter provided, Prior Security Interests under the Uniform Commercial Code as in effect in each applicable jurisdiction (the “Uniform Commercial Code”) or other applicable Law entitled to all the rights, benefits and priorities provided by the Uniform Commercial Code or such Law, subject to Permitted Liens.  Upon the filing of financing statements relating to said security interests in each office and in each jurisdiction where required in order to perfect the security interests described above, taking possession of any stock certificates or other certificates evidencing the Pledged Collateral and recordation of the Patent, Trademark and Copyright Security Agreement in the United States Patent and Trademark Office and United States Copyright Office, as applicable, all such action as is necessary or advisable to establish such rights of the Administrative Agent will have been taken, and there will be upon execution and delivery of the Patent, Trademark and Copyright Security Agreement, the Pledge Agreements and the Security Agreement, such filings and such

 

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taking of possession, no necessity for any further action in order to preserve, protect and continue such rights, except the filing of continuation statements with respect to such financing statements within six (6) months prior to each five (5) year anniversary of the filing of such financing statements.  All filing fees and other expenses in connection with each such action have been or will be paid by the Borrower.

 

6.1.28         Mortgage Liens.  The Liens on all Property of each Loan Party and each Subsidiary of each Loan Party, other than any Property described on Schedule 6.1.28 (the “Excluded Property”), granted to the Administrative Agent for the benefit of the Lenders pursuant to the Mortgages constitute a valid first priority Lien under applicable Law, subject to Permitted Liens.  All such action as will be necessary or advisable to establish such Lien of the Administrative Agent and its priority as described in the preceding sentence will be taken at or prior to the time required for such purpose, and there will be as of the date of execution, delivery and recordation of the Mortgages in the applicable recording office of each county where the Property described therein is located, no necessity for any further action in order to protect, preserve and continue such Lien and such priority.

 

6.1.29         Status of the Pledged Collateral.  All the Subsidiary Shares, Partnership Interests, LLC Interests or the member interests of the Borrower included in the Pledged Collateral to be pledged pursuant to the Pledge Agreements are or will be upon issuance validly issued and nonassessable or not subject to additional contribution obligations, as the case may be, and owned beneficially and of record by the pledgor free and clear of any Lien or restriction on transfer, except as otherwise provided by the Pledge Agreements and this Agreement and except as the right of the Lenders to dispose of the Subsidiary Shares, Partnership Interests, LLC Interests or member interests of the Borrower may be limited by the Securities Act of 1933, as amended, and the regulations promulgated by the Securities and Exchange Commission thereunder and by applicable state securities laws.  There are no shareholder, partnership, limited liability company or other agreements or understandings with respect to the Subsidiary Shares, Partnership Interests, LLC Interests or member interests of the Borrower included in the Pledged Collateral except for the partnership agreements and limited liability company agreements described on Schedule 6.1.29.  The Loan Parties have delivered true and correct copies of such shareholder agreements, partnership agreements, and limited liability company agreements to the Administrative Agent.

 

6.1.30         Senior Debt Status.  The Obligations of each Loan Party under this Agreement, the Notes, the Guaranty Agreement and each of the other Loan Documents to which it is a party do rank and will rank at least pari  passu in priority of payment with all other Indebtedness of such Loan Party except Indebtedness of such Loan Party to the extent secured by Permitted Liens.  There is no Lien upon or with respect to any of the properties or income of any Loan Party or Subsidiary of any Loan Party which secures indebtedness or other obligations of any Person except for Permitted Liens.

 

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6.1.31         Anti-Terrorism Laws.

 

6.1.31.1         General.

 

None of the Loan Parties, nor any Affiliate of any Loan Party, is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

6.1.31.2         Executive Order No. 13224.

 

None of the Loan Parties, nor any Affiliate of any Loan Party, or their respective agents acting or benefiting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, is any of the following (each a “Blocked Person”):

 

(i)            a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224;

 

(ii)           a Person owned or controlled by, or acting for or on behalf of, any Person  that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224;

 

(iii)          a Person or entity with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

 

(iv)          a Person or entity that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order No. 13224;

 

(v)           a Person or entity that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement  website or other  replacement official publication of such list; or

 

(vi)          a person or entity who is affiliated or associated with a person or entity listed above.

 

No Loan Party or to the knowledge of any Loan Party, any of its agents acting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder:  (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order No. 13224.

 

6.2           Updates to Schedules.  Should any of the information or disclosures provided on any of the Schedules attached hereto become outdated or incorrect in any material respect, the Borrower shall promptly provide the Administrative Agent in writing with such revisions or updates to such Schedule as may be necessary or appropriate to update or correct same.  No Schedule shall be deemed to have been amended, modified or superseded by any such correction

 

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or update, nor shall any breach of warranty or representation resulting from the inaccuracy or incompleteness of any such Schedule be deemed to have been cured thereby, unless and until the Required Lenders, in their sole and absolute discretion, shall have accepted in writing such revisions or updates to such Schedule.

 

7.             CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT

 

The obligation of each Lender to make Loans and of the Issuing Lender to issue Letters of Credit hereunder is subject to the performance by each of the Loan Parties of its Obligations to be performed hereunder at or prior to the making of any such Loans or issuance of such Letters of Credit and to the satisfaction of the following further conditions:

 

7.1           First Loans and Letters of Credit.

 

On the Closing Date:

 

7.1.1           Officer’s Certificate.  The representations and warranties of each of the Loan Parties contained in Article 6 and in each of the other Loan Documents shall be true and accurate on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and each of the Loan Parties shall have performed and complied with all covenants and conditions hereof and thereof, no Event of Default or Potential Default shall have occurred and be continuing or shall exist; and there shall be delivered to the Administrative Agent for the benefit of each Lender a certificate of each of the Loan Parties, dated the Closing Date and signed by the Chief Executive Officer, President or Chief Financial Officer of each of the Loan Parties, to each such effect.

 

7.1.2        Secretary’s Certificate.  There shall be delivered to the Administrative Agent for the benefit of each Lender a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to:

 

(i)            all action taken by each Loan Party in connection with this Agreement and the other Loan Documents;

 

(ii)           the names of the officer or officers authorized to sign this Agreement and the other Loan Documents and the true signatures of such officer or officers and specifying the Authorized Officers permitted to act on behalf of each Loan Party for purposes of this Agreement and the true signatures of such officers, on which the Administrative Agent and each Lender may conclusively rely; and

 

(iii)          copies of its organizational documents, including its certificate of incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, and limited liability company agreement as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business and a bring-down certificate by facsimile dated the Closing Date.

 

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7.1.3        Delivery of Loan Documents.  This Agreement, the Guaranty Agreement, the Indemnity, the Mortgages, the Notes, the Patent, Trademark and Copyright Security Agreement, the Pledge Agreements, the Intercompany Subordination Agreement and the Security Agreement, and all other Loan Documents, shall have been duly executed and delivered to the Administrative Agent for the benefit of the Lenders, together with all appropriate financing statements and appropriate stock powers and certificates evidencing the Subsidiary Shares, the Partnership Interests and the LLC Interests.

 

7.1.4        Opinion of Counsel.

 

7.1.4.1           There shall be delivered to the Administrative Agent for the benefit of each Lender a written opinion of  Frost Brown Todd LLC, counsel for the Loan Parties (who may rely on the opinions of such other counsel as may be acceptable to the Administrative Agent), dated the Closing Date and in form and substance satisfactory to the Administrative Agent and its counsel:  (i) in substantially the form of Exhibit 7.1.4(A) and (ii) as to such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

 

7.1.4.2           In addition, there shall also be delivered to the Administrative Agent for the benefit of each Lender, written opinions of local counsel selected by the Loan Parties and reasonably acceptable to the Administrative Agent regarding real estate and other matters, dated the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent and its counsel:  (i) in substantially the form of Exhibit 7.1.4(B) and (ii) as to such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

 

7.1.5        Legal Details.  All legal details and proceedings in connection with the transactions contemplated by this Agreement and the other Loan Documents shall be in form and substance satisfactory to the Administrative Agent and counsel for the Administrative Agent, and the Administrative Agent shall have received all such other counterpart originals or certified or other copies of such documents and proceedings in connection with such transactions, in form and substance satisfactory to the Administrative Agent and said counsel, as the Administrative Agent or said counsel may reasonably request.

 

7.1.6        Payment of Fees.  The Borrower shall have paid or caused to be paid to the Administrative Agent for itself and for the account of the Lenders to the extent not previously paid all fees accrued through or otherwise payable on the Closing Date and the costs and expenses for which the Administrative Agent and the Lenders are entitled to be reimbursed.

 

7.1.7        Environmental Matters.  The Loan Parties shall provide the Administrative Agent with such existing environmental assessments as requested by the Administrative Agent.  On the Closing Date, the appropriate officers of the applicable Loan Parties shall have delivered to the Administrative Agent in form and substance satisfactory to the Administrative Agent a certificate to the effect that the Loan Parties have made known to the Administrative Agent all information known to them and their Subsidiaries concerning environmental conditions and Environmental Complaints and the Loan Parties and their Subsidiaries’ compliance with the Environmental Laws relating to any of the Property and any other site for which any Loan Party

 

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or Subsidiary of a Loan Party has received notice that it is potentially responsible for any environmental conditions.

 

7.1.8        Capitalization of Borrower.  With respect to each Loan Party and each Subsidiary of each Loan Party, the capital structure, ownership, organization documents (including articles or certificate of incorporation, certificate of limited partnership, certificate of limited liability company, bylaws, partnership agreements, and limited liability company agreements), shareholder agreements or similar agreements among equity owners shall be reasonably satisfactory, in form and substance, to the Administrative Agent.  The Administrative Agent shall have received true and complete copies of all of the material acquisition documents related to all acquisitions consummated by the Borrower and any other Loan Party or Subsidiary of any Loan Party prior to the Closing Date.

 

7.1.9        Consents.  All material consents required to effectuate the transactions contemplated hereby as set forth on Schedule 6.1.13 shall have been obtained.

 

7.1.10      Officer’s Certificate Regarding MACs.  Since December 31, 2010, no Material Adverse Change shall have occurred; prior to the Closing Date, there shall have been no material change in the management of any Loan Party or Subsidiary of any Loan Party; and, there shall have been delivered to the Administrative Agent for the benefit of each Lender a certificate dated the Closing Date and signed by the Chief Executive Officer, President or Chief Financial Officer of each Loan Party to each such effect. After giving effect to the consummation of the transactions contemplated by the Loan Documents, the Loans to be made and the Letters of Credit to be issued on the Closing Date, no Material Adverse Change shall have occurred.

 

7.1.11      No Violation of Laws.  The making of the Loans and the issuance of the Letters of Credit shall not contravene any Law applicable to any Loan Party or any of the Lenders.

 

7.1.12      No Actions or Proceedings.  No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, this Agreement, the other Loan Documents, or the consummation of the transactions contemplated hereby or thereby or which, in the Administrative Agent’s sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or any of the other Loan Documents.

 

7.1.13      Insurance Policies; Certificates of Insurance; Endorsements.  The Loan Parties shall have delivered evidence acceptable to the Administrative Agent that adequate insurance in compliance with Section 8.1.3 [Maintenance of Insurance], and with other provisions of applicable Loan Documents, is in full force and effect and that all premiums then due thereon have been paid, together with a certified copy of each Loan Party’s casualty insurance policy or policies evidencing coverage satisfactory to the Administrative Agent, with additional insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured, mortgagee, and lender loss payee.

 

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7.1.14      UCC, Lien and Judgment Searches; Title Reports.  The Administrative Agent shall have received lien, litigation, tax lien, judgment and Uniform Commercial Code searches against each Loan Party, each Subsidiary of each Loan Party and each Person pledging or required to pledge ownership interests in any Loan Party, in each case in the jurisdiction of each such Person’s formation and in each jurisdiction where a lien or security interest could legally be filed against the Collateral; and, the results of such searches shall be satisfactory in form, scope and substance to the Administrative Agent.

 

The Loan Parties shall deliver record owner and lien title reports acceptable to the Administrative Agent, confirming among other matters, that the Property is free and clear of all Liens, subject only to Permitted Liens and such other exceptions as may be approved in writing by the Administrative Agent.

 

7.1.15      Sources and Uses.  The Borrower shall have provided to the Administrative Agent for the benefit of the Lenders a definitive schedule of sources and uses of funds in connection with the transactions contemplated by the Loan Documents.

 

7.1.16      Filing Receipts.  The Administrative Agent shall have received:  (i) copies of all filing receipts and acknowledgments issued by any governmental authority to evidence any recordation or filing necessary to perfect the Liens of the Lenders on the Collateral or other satisfactory evidence of such recordation and filing and (ii) evidence in a form acceptable to the Administrative Agent that all such Liens constitute a Prior Security Interest in favor of the Lenders and, in the case of the Mortgages, a valid and perfected first priority Lien.

 

7.1.17      Administrative Questionnaire.  Each of the Lenders and the Borrower shall have completed and delivered to the Administrative Agent the Administrative Agent’s form of administrative questionnaire.

 

7.1.18      Financial Statements.  The Administrative Agent shall have received:  (i) the Financial Projections, and (ii) copies of the Loan Parties’ consolidated and consolidating audited year-end financial statements for and as of the three (3) fiscal years ended December 31, 2010, together with copies of the unqualified reports of independent certified public accountants that conducted such audits.

 

7.1.19      Existing Credit Agreement.  The Borrower shall have delivered to the Administrative Agent a payoff letter, in form and substance satisfactory to the Administrative Agent, with respect to that certain Credit Agreement dated as of August 30, 2006, as amended, by and among Rhino Energy LLC, the guarantors and lenders party thereto and PNC Bank, National Association as the administrative agent, (the “Existing Credit Agreement”).  This Agreement amends and restates in its entirety the Existing Credit Agreement.  The Loan Parties, the Administrative Agent and Lenders acknowledge and agree that the amendment and restatement of the Existing Credit Agreement by this Agreement is not intended to constitute, nor does it constitute, a novation, interruption, suspension of continuity, satisfaction, discharge or termination of the obligations, liabilities, or indebtedness under the Existing Credit Agreement or the collateral security therefor, and this Agreement is entitled to all rights and benefits originally pertaining to the Existing Credit Agreement.

 

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7.1.20      Solvency Certificate.  The Chief Financial Officer of the Borrower shall have delivered a certificate in form and substance satisfactory to the Administrative Agent as to the capital adequacy and solvency of the Loan Parties after giving effect to the transactions contemplated hereby.

 

7.1.21      Lessor’s Consents.  The Loan Parties shall have delivered consents allowing for, among other things, a Lien to be obtained upon such leases, from the lessors under any Material Leases (including Coal Reserves and facilities) required by the Administrative Agent, in its sole discretion, to have such consents, which such consents shall be in form and substance acceptable to the Administrative Agent.

 

7.1.22      ERISA and Labor Matters.  The Loan Parties shall have delivered evidence acceptable to the Administrative Agent that (a) the Loan Parties are in compliance with ERISA, the Internal Revenue Code and other applicable Laws applicable to Plans and Benefit Arrangements except where such failure, alone or in conjunction with any other failure, would not result in a Material Adverse Change, and (b) all Plans maintained by any member of the ERISA Group are funded in accordance with the minimum funding requirements of ERISA.

 

7.1.23      Appraisals; Flood Insurance.

 

The Administrative Agent shall have received appraisals or valuations of the Loan Parties’ and their Subsidiaries’ assets as the Administrative Agent may require in form and substance satisfactory to the Administrative Agent in all respects.

 

The Administrative Agent shall have received such information and, without limiting the requirements of Section 7.1.13 [Insurance Policies; Certificates of Insurance; Endorsements], flood insurance determinations as to any Property located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards in compliance with the Flood Laws (and any amendments thereto or successor Laws), and all applicable rules and regulations promulgated with respect thereto.

 

7.1.24      Compliance Certificate.The Administrative Agent shall have received a duly completed Compliance Certificate, signed by an Authorized Officer of Borrower, setting forth pro-forma compliance with the Maximum Leverage Ratio as set forth in Section 8.2.17 and the Minimum Interest Coverage Ratio as set forth in Section 8.2.16, calculated as of the last day of the most recent fiscal quarter ended.

 

7.2           Each Loan or Letter of Credit.  At the time of making any Loans or issuing any Letters of Credit other than Loans made or Letters of Credit issued on the Closing Date and after giving effect to the proposed extensions of credit:  the representations and warranties of the Loan Parties contained in Article 6 and in the other Loan Documents shall be true on and as of the date of such additional Loan or Letter of Credit with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein) and the Loan Parties shall have performed and complied with all covenants and conditions hereof; no Event of Default or Potential Default shall have occurred and be continuing or shall exist; the making of

 

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the Loans or issuance of such Letter of Credit shall not contravene any Law applicable to any Loan Party or Subsidiary of any Loan Party or any of the Lenders; and the Borrower shall have delivered to the Administrative Agent a duly executed and completed Loan Request or to the Issuing Lender an application for a Letter of Credit, as the case may be.

 

8.             COVENANTS

 

The Loan Parties, jointly and severally, covenant and agree that until Payment In Full, the Loan Parties shall comply at all times with the following covenants:

 

8.1           Affirmative Covenants.

 

8.1.1           Preservation of Existence, Etc.  The Borrower shall, and shall cause each of its Subsidiaries to, maintain its legal existence as a corporation, limited partnership or limited liability company and its license or qualification and good standing in each jurisdiction in which its ownership or lease of property or the nature of its business makes such license or qualification necessary, except as otherwise expressly permitted in Section 8.2.6 [Liquidations, Mergers, Etc.].  Notwithstanding the foregoing and with the Administrative Agent’s written consent, a Subsidiary that is not a Material Subsidiary may dissolve; and in connection therewith the dissolving Subsidiary shall be released of its obligations under a Guaranty, provided that such release shall not become effective until such Guarantor is legally dissolved.  In connection with such dissolution, the Administrative Agent is authorized to execute written documents or agreements confirming such release.

 

8.1.2           Payment of Liabilities, Including Taxes, Etc.  The Borrower shall, and shall cause each of its Subsidiaries to, duly pay and discharge all liabilities to which it is subject or which are asserted against it, promptly as and when the same shall become due and payable, including all taxes,  assessments and governmental charges upon it or any of its properties, assets, income or profits, prior to the date on which penalties attach thereto, except to the extent that such liabilities, including taxes, assessments or charges, are being contested in good faith and by appropriate and lawful proceedings diligently conducted and for which such reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made, but only to the extent that failure to discharge any such liabilities would not result in any additional liability which would adversely affect to a material extent the financial condition of the Loan Parties and their Subsidiaries, taken as a whole, provided that the Loan Parties and their Subsidiaries will pay all such liabilities forthwith upon the commencement of proceedings to foreclose any Lien which may have attached as security therefor.

 

8.1.3           Maintenance of Insurance.  The Borrower shall, and shall cause each of its Subsidiaries to, insure its properties and assets against loss or damage by fire and such other insurable hazards as such assets are commonly insured (including fire, extended coverage, property damage, workers’ compensation, public liability and business interruption insurance) and against other risks (including errors and omissions) in such amounts as similar properties and assets are insured by prudent companies in similar circumstances carrying on similar businesses, and with reputable and financially sound insurers, including self-insurance to the extent customary, all as reasonably determined by the Administrative Agent.  At the request of the Administrative Agent, the Borrower shall deliver to the Administrative Agent and each of the

 

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Lenders:  (i) an original certificate of insurance signed by the Loan Parties’ independent insurance broker describing and certifying as to the existence of the insurance required to be maintained by this Agreement and the other Loan Documents and (ii) from time to time a summary schedule indicating all insurance then in force with respect to each of the Loan Parties. Each Loan Party shall take all actions required under the Flood Laws and/or reasonably requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, to the extent applicable, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral, and thereafter maintaining such flood insurance in full force and effect for so long as required by the Flood Laws.

 

8.1.4           Maintenance of Properties and Leases.  The Borrower shall, and shall cause each of its Subsidiaries to, maintain in good repair, working order and condition (ordinary wear and tear excepted) in accordance with the general practice of other businesses of similar character and size, all of those properties useful or necessary to its business, and from time to time, such Loan Party will make or cause to be made all appropriate repairs, renewals or replacements thereof.

 

8.1.5           Maintenance of Patents, Trademarks, Etc.  The Borrower shall, and shall cause each of its Subsidiaries to, maintain in full force and effect all patents, trademarks, service marks, trade names, copyrights, licenses, franchises, permits and other authorizations necessary for the ownership and operation of its properties and business if the failure so to maintain the same would constitute a Material Adverse Change.

 

8.1.6           Visitation Rights.  Each Loan Party shall, and shall cause each of its Subsidiaries to, permit any of the officers or authorized employees or representatives of the Administrative Agent or any of the Lenders to visit and inspect any of its properties and to examine and make excerpts from its books and records and discuss its business affairs, finances and accounts with its officers, all in such detail and at such times and as often as any of the Lenders may reasonably request, provided  that, in the absence of any Event of Default, each Lender shall provide the Borrower and the Administrative Agent with reasonable notice prior to any visit or inspection.  In the event any Lender desires to conduct an audit of any Loan Party, such Lender shall make a reasonable effort to conduct such audit contemporaneously with any audit to be performed by the Administrative Agent.

 

8.1.7           Keeping of Records and Books of Account.  The Borrower shall, and shall cause each Subsidiary of the Borrower to, maintain and keep proper books of record and account which enable the Borrower and its Subsidiaries to issue financial statements in accordance with GAAP and as otherwise required by applicable Laws of any Official Body having jurisdiction over the Borrower or any Subsidiary of the Borrower, and in which full, true and correct entries shall be made in all material respects of all its dealings and business and financial affairs.

 

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8.1.8           Plans and Benefit Arrangements.  The Borrower shall, and shall cause each other member of the ERISA Group to, comply with ERISA, the Internal Revenue Code and other applicable Laws applicable to Plans and Benefit Arrangements except where such failure, alone or in conjunction with any other failure, would not result in a Material Adverse Change.  Without limiting the generality of the foregoing, the Borrower shall cause all of its Plans and all Plans maintained by any member of the ERISA Group to be funded in accordance with the minimum funding requirements of ERISA and shall make, and cause each member of the ERISA Group to make, in a timely manner, all contributions due to Plans, Benefit Arrangements and Multiemployer Plans.

 

8.1.9           Compliance with Laws.  The Borrower shall, and shall cause each of its Subsidiaries to, comply with all applicable Laws, including all Environmental Laws, in all respects, provided that it shall not be deemed to be a violation of this Section 8.1.9 if any failure to comply with any Law would not result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which in the aggregate would constitute a Material Adverse Change.

 

8.1.10         Use of Proceeds.

 

(i)            The proceeds of the Revolving Credit Loans will be used by Borrower solely to repay the obligations under the Existing Credit Agreement and for general corporate, limited liability company or partnership purposes of Borrower and its Subsidiaries, including for working capital, capital expenditures, distributions permitted hereunder, for Permitted Acquisitions, for investments in an oil and gas Joint Ventures and drilling programs and for certain costs and expenses related to servicing oil and gas wells.

 

(ii)           The Letters of Credit will be used for general business purposes in the ordinary course of business.

 

(iii)          The Loan Parties shall not use the Letters of Credit or the proceeds of the Loans for any purposes which contravenes any applicable Law or any provision hereof.

 

8.1.11         Further Assurances.  To the extent that a Lien is granted to the Administrative Agent in accordance with this Agreement, each Loan Party shall, from time to time, at its expense, faithfully preserve and protect the Administrative Agent’s Lien on and Prior Security Interest in the Collateral as a continuing first priority perfected Lien, subject only to Permitted Liens, and shall do such other acts and things as the Administrative Agent in its sole discretion may deem necessary or advisable from time to time in order to preserve, perfect and protect the Liens granted under the Loan Documents and to exercise and enforce its rights and remedies thereunder with respect to the Collateral.

 

8.1.12         Subordination of Intercompany Loans.  Each Loan Party shall cause any intercompany Indebtedness, loans or advances owed by any Loan Party to any other Loan Party to be subordinated pursuant to the terms of the Intercompany Subordination Agreement.

 

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8.1.13         Anti-Terrorism Laws.  The Loan Parties and their respective Affiliates and agents shall not:  (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including the making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order No. 13224, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Executive Order No. 13224, the USA Patriot Act or any other Anti-Terrorism Law.  The Borrower shall deliver to Lenders any certification or other evidence requested from time to time by any Lender in its sole discretion, confirming Borrower’s compliance with this Section 8.1.13.

 

8.1.14         Collateral and Additional Collateral, Etc.

 

(i)            Pursuant to the Loan Documents, (A) the Borrower and any Subsidiaries, shall grant, or cause to be granted, to the Administrative Agent, for the benefit of the Lenders, a first priority security interest in and Lien on, subject only to Permitted Liens, (x) all Collateral (including, without limitation, all Property), (y)  all equity interests of the Borrower and its Subsidiaries, and (z) all other assets of the Borrower and any Subsidiaries, whether owned on the Closing Date or subsequently acquired except those assets subject to capitalized leases or Purchase Money Security Interests and the Excluded Properties and (B) the MLP shall grant to the Administrative Agent for the benefit of the Lenders, a first priority security interest in and Lien on, subject to Permitted Liens, all of the MLP’s equity interest in the Borrower.  Notwithstanding the foregoing, to the extent a Lien is not granted on after-acquired Property by virtue of the Loan Documents, the Loan Parties (other than the MLP) shall as soon as commercially practicable after the date of such acquisition to grant to the Administrative Agent, on behalf of the Lenders, a Lien, as more fully described in subsections (ii) and (iii), below.  Notwithstanding subsection (i)(A) of this Section 8.1.14, with respect to Property located in Kentucky and owned by The Elk Horn Coal Company, LLC, The Elk Horn Coal Corporation, Buck Coal, Inc. or Ram Processing, Inc. (the “Elk Horn Property”) and with respect to Property located in Oklahoma and owned by Rhino Exploration LLC (the “Oklahoma Property”), such Loan Party shall, at its expense, grant a Lien on such Properties and satisfy the other provisions set forth on Schedule 8.1.14 hereof (y) within fourteen (14) days of the date of this Agreement with respect to the Elk Horn Property, and (z) within sixty (60) days of the date of this Agreement with respect to the Oklahoma Property; provided, that in the event such Loan Party is diligently working on such matters, the Administrative Agent may, in its sole discretion, extend such period of time.

 

(ii)           Without limiting the generality of clause (i) of this Section 8.1.14, with respect to any Property acquired after the Closing Date by the Borrower, any other Loan Party or any Subsidiary of any Loan Party as to which the Administrative Agent, for the benefit of the Lenders, does not have a perfected Lien, as soon as commercially practicable after the acquisition thereof, the Borrower, such Loan Party or such Subsidiary, as applicable, shall, at its expense:  (i) execute and deliver to the Administrative Agent such Security Documents or such amendments to such Security Documents as the Administrative Agent deems necessary or advisable to grant to the

 

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Administrative Agent, for the benefit of the Lenders, a first priority Lien in such Property, subject only to Permitted Liens, (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority Lien and security interest on such Property (subject only to Permitted Liens), including the filing of Mortgages and Uniform Commercial Code financing statements in such jurisdictions as may be required by the Security Documents or by Law or as may be requested by the Administrative Agent, (iii) obtain Uniform Commercial Code, lien, tax, mortgage, leasehold mortgage, and judgment searches (including searches of the applicable real estate indexes), with the results, form scope and substance of such searches to be satisfactory to the Administrative Agent, (iv) provide the Administrative Agent with evidence that the Loan Parties have taken all actions required under the Flood Laws and/or reasonably requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that is or will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral, and (v) deliver to the Administrative Agent such legal opinions relating to the matters described in clauses (i) through (iv) immediately above, as such opinions may be required by the Administrative Agent in its discretion and which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.

 

(iii)          Without limiting the generality of clause (i) of this Section 8.1.14, with respect to any new Subsidiary created or acquired after the Closing Date by the Borrower, any other Loan Party or any Subsidiary of any Loan Party, as soon as commercially practicable after such creation or acquisition, the Borrower, such other Loan Party and/or such Subsidiary, as applicable, shall:  (i) execute and deliver to the Administrative Agent such amendments to the Security Documents as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority Lien in the stock or other ownership interests in such new Subsidiary, (ii) deliver to the Administrative Agent:  (A) the certificates (if any) representing such stock or other ownership interests, together with undated powers, in blank, executed and delivered by a duly authorized officer of the Borrower, any other Loan Party or such Subsidiary, as the case may be, and (B) in the case of a Subsidiary whose stock or other ownership interests is a security that is not evidenced by a certificate, an Acknowledgment and Consent, substantially in the form of Annex I to the applicable Pledge Agreement, duly executed by any issuer of such stock or other ownership interests pledged pursuant to such Pledge Agreement, (iii) cause such new Subsidiary:  (A) to become a party to the applicable Security Documents and (B) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority Lien on the Collateral described in the applicable Pledge Agreement and applicable Security Agreement and pursuant to a duly executed Mortgage, such Lien on all Properties of such new Subsidiary, subject in each case to Permitted Liens, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the applicable Pledge Agreement and the Security Agreement, the filing of any Mortgages in appropriate filing offices and other

 

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filings required by Law or as may be requested by the Administrative Agent, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent such legal opinions, relating to the matters described above as the Administrative Agent may request, which opinions shall be in form and substance, and from counsel, satisfactory to the Administrative Agent.

 

8.2           Negative Covenants.

 

8.2.1           Indebtedness.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except:

 

(i)            Indebtedness under the Loan Documents;

 

(ii)           Existing Indebtedness as set forth on Schedule 8.2.1 (including any extensions or renewals thereof, provided there is no increase in the amount thereof or other significant change in the terms thereof unless otherwise specified on Schedule 8.2.1;

 

(iii)          Operating leases;

 

(iv)          Indebtedness secured by Purchase Money Security Interests and capital leases not exceeding $20,000,000 in the aggregate;

 

(v)           Indebtedness of a Loan Party to another Loan Party or of a Loan Party to MLP, which is subordinated in accordance with the provisions of Section 8.1.12 [Subordination of Intercompany Loans];

 

(vi)          performance Guarantees entered into in the ordinary course of business with respect to the performance of any obligation of any Subsidiary of Borrower;

 

(vii)         Any Commodity Hedge, Lender-Provided Interest Rate Hedge, or other Interest Rate Hedge; and

 

(viii)        other unsecured Indebtedness of the Loan Parties in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding.

 

Notwithstanding anything contained herein to the contrary, the MLP shall not incur any Indebtedness other than in connection with the Loan Documents or pursuant to Guaranties permitted by Section 8.2.3 [Guaranties] herein.

 

8.2.2           Liens.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Lien on any of its property or assets, tangible or intangible, now owned or hereafter acquired, or agree or become liable to do so,  except Permitted Liens.

 

8.2.3           Guaranties.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time, directly or indirectly, become or be liable in respect of any Guaranty, or assume, guarantee, become surety for, endorse or otherwise agree, become or

 

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remain directly or contingently liable upon or with respect to any obligation or liability of any other Person, except for Guaranties of Indebtedness of the Loan Parties permitted hereunder.

 

8.2.4           Loans and Investments.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time make or suffer to remain outstanding any loan or advance to, or purchase, acquire or own any stock, bonds, notes or securities of, or any partnership interest (whether general or limited) or limited liability company interest in, or any other investment or interest in,  or make any capital contribution to, any other Person, or agree, become or remain liable to do any of the foregoing, except:

 

(i)            trade credit extended on usual and customary terms in the ordinary course of business;

 

(ii)           advances to employees to meet expenses incurred by such employees in the ordinary course of business;

 

(iii)          Permitted Investments;

 

(iv)          loans, advances and investments in other Loan Parties except loans, advances and investments in the MLP or any Excluded Subsidiary;

 

(v)           investments (including any investments in the Excluded Subsidiaries) not otherwise permitted by this Section 8.2.4 in an aggregate amount not to exceed $25,000,000 at anytime outstanding, provided that investments in the MLP are specifically excluded; and

 

(vi)          investments (other than by the MLP) in Hydrocarbons, Hydrocarbon Interests and Hydrocarbon Auxiliary Assets and Activities in an aggregate amount not to exceed $50,000,000, excluding those existing investments set forth on Schedule 8.2.4(vi).

 

8.2.5           Dividends and Related Distributions.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of capital stock, partnership interests or limited liability company interests or on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, except:

 

(i)            dividends or other distributions payable to another Loan Party (other than the MLP);

 

(ii)           upon ten (10) Business Days prior notice to the Administrative Agent, Borrower may transfer equity interests in any Excluded Subsidiary (other than any Subsidiaries of Rhino Energy WV LLC, including without limitation Rhino Eastern LLC and Rockhouse Land LLC, with regard to which the restrictions in this paragraph shall not apply and whose equity interests may be transferred without regard to the procedures and restrictions below), provided, however, (a) that no uncured Event of Default shall be in existence at the time of such transfer, (b) that at the time of such transfer, the Loan Parties can demonstrate pro forma compliance with the covenants after taking into account such transfer by delivering to the Administrative Agent a Compliance Certificate, and (c) that the Borrower shall deliver any

 

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documentation related to such transfer, which such documentation shall be reasonably satisfactory, in form and substance, to the Administrative Agent; and upon such transfer, such Excluded Subsidiary shall cease to be a Loan Party and shall be released as a Guarantor, and the pledge of the equity interest therein and the security interest in after-acquired property of such Excluded Subsidiary shall be released;

 

(iii)          dividends or other distributions payable by the Borrower to the MLP in such amounts as required to pay the general and administrative costs and expenses of the MLP incurred in connection with the operation of its business including, without limitation, amounts payable to the General Partner pursuant to the terms of the Partnership Agreement that do not constitute distributions on the general partner interest or limited partner interests in the MLP held by the General Partner;

 

(iv)          dividends or other distributions payable by the Borrower to the MLP in such amounts as is required by the MLP to pay dividends or distributions or redeem equity interests, in each case pursuant to incentive compensation and similar benefit plans provided to the management and employees of the MLP and its Subsidiaries of up to $7,500,000 per annum; and

 

(v)           so long as no Event of Default or Potential Default exists and is continuing or would result therefrom, the MLP and the Borrower may declare, make or incur a liability to make distributions to fund MLP Quarterly Distributions; provided that (A) such MLP Quarterly Distributions are made in accordance with the provisions of the Partnership Agreement and (B) the aggregate amount of MLP Quarterly Distributions with respect to any fiscal quarter shall not exceed MLP Available Cash for such fiscal quarter.

 

8.2.6           Liquidations, Mergers, Consolidations, Acquisitions.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that:

 

(1)           any Loan Party other than the Borrower may consolidate or merge into another Loan Party (not including the Excluded Subsidiaries) which is wholly-owned by one or more of the other Loan Parties,

 

(2)           with the Administrative Agent’s written consent, any Subsidiary which is not a Material Subsidiary may dissolve, liquidate or wind-up its affairs pursuant to Section 8.1.1 [Preservation of Existence, Etc.], and

 

(3)           any  Loan Party may acquire, whether by purchase or by merger, (A) all of the ownership interests of another Person or (B) substantially all of the assets of another Person or of a business or division of another Person (each an “Permitted Acquisition”), provided that each of the following requirements is met:

 

(i)            the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and, if the Loan Parties shall use any portion of the Loans to fund such Permitted Acquisition, the Loan Parties also shall have delivered to the

 

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Administrative Agent written evidence of the approval of the board of directors (or equivalent body) of such Person for such Permitted Acquisition;

 

(ii)           if the Loan Parties are acquiring substantially all of the assets of another Person or of a business or division of another Person, then the assets of such Person or the assets of such division shall be substantially the same as, or shall support or be complementary to, the lines of business conducted by the Loan Parties and shall comply with Section 8.2.10 [Continuation of or Change in Business];

 

(iii)          if the Loan Parties are acquiring all of the ownership interests of another Person, then the assets of such Person shall be substantially the same as, or shall support or be complementary to, the lines of business conducted by the Loan Parties and shall comply with Section 8.2.10 [Continuation of or Change in Business];

 

(iv)          no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;

 

(v)           (A) the pro-forma Leverage Ratio is less than 3.0 to 1.0 after giving effect to such Permitted Acquisition and assuming that an additional $20,000,000 has been borrowed as Loans immediately after such Permitted Acquisition (the assumption that $20,000,000 of additional Loans  is outstanding is purely hypothetical for purposes of demonstrating a potential Leverage Ratio post-acquisition and has no other purpose under this Agreement), and (B) the Borrower shall have Availability of at least $20,000,000 after giving effect to such Permitted Acquisition and any Loan associated therewith; and

 

(vi)          the Loan Parties shall deliver to the Administrative Agent at least five (5) Business Days before such Permitted Acquisition copies of any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Permitted Acquisition and shall deliver to the Administrative Agent such other information about such Person or its assets as any Loan Party may reasonably require.

 

Notwithstanding anything contained herein to the contrary, the MLP shall not be permitted to be a party to any liquidation, merger, and consolidation.

 

8.2.7           Dispositions of Assets or Subsidiaries.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest, partnership interests or limited liability company interests of a Subsidiary of such Loan Party), except:

 

(i)            transactions involving the sale of inventory in the ordinary course of business;

 

(ii)           any sale, conveyance, assignment, lease, abandonment or other transfer or disposal of assets in the ordinary course of business which are no longer necessary or required in the conduct of such Loan Party’s or such Subsidiary’s business;

 

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(iii)          any sale, conveyance, assignment, lease, abandonment or other transfer or disposal of assets by any wholly owned Subsidiary of such Loan Party to another Loan Party;

 

(iv)          any sale, conveyance, assignment, lease, abandonment or other transfer or disposal of assets in the ordinary course of business in an aggregate amount not to exceed $5,000,000 per fiscal year, which assets are replaced by substitute assets of a similar nature and type within one hundred-eighty (180) days of such sale, transfer, or lease of assets; or

 

(v)           any sale, conveyance, assignment, lease, abandonment or other transfer or disposal of assets of the Excluded Subsidiaries.

 

8.2.8           Affiliate Transactions.  None of the Borrower nor any of the Guarantors shall or shall permit any of its Subsidiaries to, enter into or carry out any transaction with any Affiliate who is not a Loan Party or an Excluded Subsidiary (including purchasing property or services from or selling property or services to any Affiliate or other Person), unless such transaction is not otherwise prohibited by this Agreement, is entered into upon fair and reasonable arm’s-length terms and conditions which are fully disclosed to the Administrative Agent and is in accordance with all applicable Law, except:

 

(i)            reimbursement of the General Partner and its Affiliates for general and administrative costs and expenses of the MLP or General Partner or its Affiliates incurred in connection with the operation of the MLP’s business,

 

(ii)           any dividend, distribution, or redemption permitted by Section 8.2.5 [Dividends and Related Distributions]; and

 

(iii)          discrete transactions having an aggregate value for all such transactions of less than $100,000 per year.

 

8.2.9           Subsidiaries, Partnerships and Joint Ventures.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, own or create directly or indirectly any Subsidiaries other than:  (i) any Subsidiary which has joined this Agreement as a Guarantor on the Closing Date; and (ii) any Subsidiary formed after the Closing Date which joins this Agreement as a Guarantor pursuant to Section 11.10 [Joinder of Guarantors], provided that the Required Lenders shall have consented to such formation and joinder and such Subsidiary (other than Excluded Subsidiaries) and the Loan Parties, as applicable, shall grant and cause to be perfected first priority Liens to the Administrative Agent for the benefit of the Lenders in the assets held by, and stock of or other ownership interests in, such Subsidiary, (other than Excluded Subsidiaries).  Each of the Loan Parties shall not become or agree to:  (1) become a general or limited partner in any general or limited partnership, except that the Loan Parties may be general or limited partners in other Loan Parties, (2) become a member or manager of, or hold a limited liability company interest in, a limited liability company (other than Excluded Subsidiaries), except that the Loan Parties may be members or managers of, or hold limited liability company interests in, other Loan Parties, or (3) become a joint venturer or hold a Joint Venture interest in any Joint Venture (other than Excluded Subsidiaries), except that the Loan Parties may become a joint venturer or hold a Joint Venture in an oil and gas Joint Venture and drilling program.

 

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8.2.10         Continuation of or Change in Business.  Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, engage in any business other than the business substantially as conducted and operated or as proposed to be conducted and operated by such Loan Party or Subsidiary on the Closing Date or any business substantially related thereto, and such Loan Party or Subsidiary shall not permit any material change in such business; provided, however, that the Loan Parties and/or any of their Subsidiaries may engage in any business related to Hydrocarbons, Hydrocarbon Interests or Hydrocarbon Auxiliary Assets and Activities that are supplemental and ancillary to the business substantially as conducted and operated or as proposed to be conducted and operated by such Loan Party or Subsidiary on the Closing Date.  Notwithstanding anything contained in this Section or elsewhere in the Agreement, the MLP may not engage in any active business operations and may not have any equity interests or other loans or investments except for its equity ownership of the Borrower.

 

8.2.11         Plans and Benefit Arrangements.

 

Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to:

 

(i)            fail to satisfy the minimum funding requirements of ERISA and the Internal Revenue Code with respect to any Plan;

 

(ii)           request a minimum funding waiver from the Internal Revenue Service with respect to any Plan;

 

(iii)          engage in a Prohibited Transaction with any Plan, Benefit Arrangement or Multiemployer Plan which, alone or in conjunction with any other circumstances or set of circumstances resulting in liability under ERISA, would constitute a Material Adverse Change;

 

(iv)          permit the aggregate actuarial present value of all benefit liabilities (whether or not vested) under each Plan, determined on a plan termination basis, as disclosed in the most recent actuarial report completed with respect to such Plan, to exceed, as of any actuarial valuation date, the fair market value of the assets of such Plan;

 

(v)           fail to make when due any contribution to any Multiemployer Plan that the Borrower or any member of the ERISA Group may be required to make under any agreement relating to such Multiemployer Plan, or any Law pertaining thereto;

 

(vi)          withdraw (completely or partially) from any Multiemployer Plan or withdraw (or be deemed under Section 4062(e) of ERISA to withdraw) from any Multiple Employer Plan, where any such withdrawal is likely to result in a material liability of the Borrower or any member of the ERISA Group;

 

(vii)         terminate, or institute proceedings to terminate, any Plan, where such termination is likely to result in a material liability to the Borrower or any member of the ERISA Group;

 

(viii)        make any amendment to any Plan with respect to which security is required under Section 307 of ERISA; or

 

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(ix)           fail to give any and all notices and make all disclosures and governmental filings required under ERISA or the Internal Revenue Code, where such failure is likely to result in a Material Adverse Change.

 

8.2.12         Fiscal Year.  The Borrower shall not, and shall not permit any Subsidiary of the Borrower to, change its fiscal year from the twelve-month period beginning January 1st and ending December 31st.

 

8.2.13         Issuance of Stock, Partnership Interests or Member Interests.  Each of the Loan Parties (other than the MLP) shall not, and shall not permit any of its Subsidiaries to issue any additional shares of such Loan Party’s capital stock (if it is a corporation), partnership interests of such Loan Party (if it is a partnership) or limited liability company interests of such Loan Party (if it is a limited liability company); or any options, warrants or other rights in respect thereof.

 

8.2.14         Changes in Organizational Documents.  None of the Loan Parties shall, nor shall permit, any of its Subsidiaries to, amend in any respect its certificate of incorporation (including any provisions or resolutions relating to capital stock), by-laws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents, provided, however, that the Loan Parties may enter into (a)  amendments that would not have a material and adverse effect on the interests of the Lenders and that would not affect the validity, perfection or priority of the Lenders’ security interests in the Pledged Collateral; and (b) amendments to document minor administrative changes in the governance of any such Loan Party so long as notice of all such amendments are provided to the Administrative Agent at the time of any such amendment.

 

8.2.15         Intentionally Omitted.

 

8.2.16         Operating Leases.  The Loan Parties shall not,  and shall not permit any of their Subsidiaries to, enter into, or be obligated in respect of, any operating lease other than in the ordinary course of business on terms and conditions typical for similarly situated businesses.

 

8.2.17         Maximum Leverage Ratio.  The Loan Parties shall not at any time permit the Leverage Ratio, calculated at the end of each fiscal quarter, to exceed 3.00 to 1.00.

 

8.2.18         Minimum Interest Coverage Ratio.  The Loan Parties shall not permit the Interest Coverage Ratio, calculated as of the end of each fiscal quarter, to be less than 4.00 to 1.00.8.2.19            No Limitation on Subsidiary Dividends and Distributions.  The Borrower shall not permit its Subsidiaries to enter into or otherwise be bound by any agreement, or any provision of any certificate of incorporation, by-laws, partnership agreement, operating agreement or other organizational formation or governing document, not to pay dividends or make distributions to the Borrower, except as imposed as a matter of Law by an Official Body.

 

8.2.20         Negative Pledges.  No Loan Party shall directly or indirectly enter into or assume or become bound by, or permit any Subsidiary to enter into or assume or become bound by, any agreement (other than this Agreement and the other Loan Documents), or any provision of any certificate of incorporation, bylaws, partnership agreement, operating agreement or other organizational formation or governing document prohibiting the creation or assumption of any

 

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Lien or encumbrance upon any such Loan Party’s or Subsidiary’s properties, whether now owned or hereafter created or acquired, or otherwise prohibiting or restricting any transaction contemplated hereby; provided that the foregoing shall not apply to:  (i) restrictions and conditions imposed by any Law or by any Loan Document, (ii) restrictions or conditions imposed by any agreement relating to secured Indebtedness or other obligations permitted by this Agreement but only to the extent such restriction or condition is limited to the specific assets subject to a Permitted Lien, or (iii) customary provisions in leases or other agreements restricting assignment thereof or creation of a lien thereon

 

8.3           Reporting Requirements.  The Loan Parties, jointly and severally, covenant and agree that until Payment in Full, the Loan Parties will furnish or cause to be furnished to the Administrative Agent and each of the Lenders:

 

8.3.1           Quarterly Financial Statements.  As soon as available and in any event within forty-five (45) calendar days after the end of each of the first three fiscal quarters in each fiscal year, (i) financial statements of  the MLP and its consolidated Subsidiaries, consisting of a consolidated and consolidating balance sheet as of the end of such fiscal quarter and related consolidated and consolidating statements of income, retained earnings, and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower or, if the Borrower so elects, of the General Partner as having been prepared in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year or (ii) the 10-Q of the MLP with respect to such fiscal quarter.

 

8.3.2           Annual Financial Statements.  As soon as available and in any event within ninety (90) days after the end of each fiscal year of the MLP, (i) financial statements of the MLP and its consolidated Subsidiaries consisting of a consolidated and consolidating balance sheet as of the end of such fiscal year, and related consolidated and consolidating statements of income, retained earnings, and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing satisfactory to the Administrative Agent or (ii) the 10-K of the MLP with respect to such fiscal year.  The certificate or report of accountants shall be free of qualifications (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents.

 

8.3.3           Certificate of the Borrower.  Concurrently with the financial statements, 10-Ks or 10-Qs of the MLP furnished to the Administrative Agent and to the Lenders pursuant to Sections 8.3.1 [Quarterly Financial Statements] and 8.3.2 [Annual Financial Statements], a certificate (each a “Compliance Certificate”) of the Borrower signed by the Chief Executive Officer, President or Chief Financial Officer of the Borrower, in the form of Exhibit 8.3.3, to the effect that, except as described pursuant to Section 8.3.4 [Notice of Default], (i) the representations and warranties of the Borrower contained in Section 6 and in the other Loan

 

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Documents are true on and as of the date of such certificate with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which expressly relate solely to an earlier date or time) and the Loan Parties have performed and complied with all covenants and conditions hereof, (ii) no Event of Default or Potential Default exists and is continuing on the date of such certificate and (iii) containing calculations in sufficient detail to demonstrate compliance as of the date of such financial statements, 10-Ks or 10-Qs with all financial covenants contained in Section 8.2 [Negative Covenants].

 

8.3.4           Notice of Default.  Promptly after any officer of any Loan Party has learned of the occurrence of an Event of Default or Potential Default, a certificate signed by the Chief Executive Officer, President or Chief Financial Officer of such Loan Party setting forth the details of such Event of Default or Potential Default and the action which such Loan Party proposes to take with respect thereto.

 

8.3.5           Notice of Litigation.  Promptly after the commencement thereof, notice of all actions, suits, proceedings or investigations before or by any Official Body or any other Person against any Loan Party or Subsidiary of any Loan Party which relate to the Collateral, involve a claim or series of claims in excess of $10,000,000 or which if adversely determined would constitute a Material Adverse Change.

 

8.3.6           Certain Events.  Written notice to the Administrative Agent at least five (5) calendar days prior thereto, with respect to any proposed sale or transfer of assets pursuant to Section 8.2.7(v).

 

8.3.7           Budgets, Forecasts, Other Reports and Information.  Promptly upon their becoming available to the Borrower:

 

(i)            deliver the annual budget and any forecasts or projections of the Borrower, to be supplied not later than fifteen (15) days prior to commencement of the fiscal year to which any of the foregoing may be applicable,

 

(ii)           any reports, notices or proxy statements generally distributed by the Borrower to its members on a date no later than the date supplied to such members,

 

(iii)          any regular or periodic reports, including Forms 10-K, 10-Q and 8-K, registration statements and prospectuses, filed by the Borrower with the Securities and Exchange Commission,

 

(iv)          a copy of any order in any proceeding to which the Borrower or any of its Subsidiaries is a party issued by any Official Body, and

 

(v)           such other reports and information as any of the Lenders may from time to time reasonably request.  The Borrower shall also notify the Lenders promptly of:  (i) the enactment or adoption of any Law which may result in a Material Adverse Change and (ii) any Material Adverse Change.

 

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8.3.8           Notices Regarding Plans and Benefit Arrangements.

 

8.3.8.1           Certain Events.  Promptly upon becoming aware of the occurrence thereof, notice (including the nature of the event and, when known, any action taken or threatened by the Internal Revenue Service or the PBGC with respect thereto) of:

 

(i)            any Reportable Event with respect to the Borrower or any other member of the ERISA Group (regardless of whether the obligation to report said Reportable Event to the PBGC has been waived),

 

(ii)           any Prohibited Transaction which could subject the Borrower or any other member of the ERISA Group to a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Internal Revenue Code in connection with any Plan, any Benefit Arrangement or any trust created thereunder,

 

(iii)          any assertion of material withdrawal liability with respect to any Multiemployer Plan,

 

(iv)          any partial or complete withdrawal from a Multiemployer Plan by the Borrower or any other member of the ERISA Group under Title IV of ERISA (or assertion thereof), where such withdrawal is likely to result in material withdrawal liability,

 

(v)           any cessation of operations (by the Borrower or any other member of the ERISA Group) at a facility in the circumstances described in Section 4062(e) of ERISA,

 

(vi)          withdrawal by the Borrower or any other member of the ERISA Group from a Multiple Employer Plan,

 

(vii)         a failure by the Borrower or any other member of the ERISA Group to make a payment to a Plan required to avoid imposition of a Lien under Section 302(f) of ERISA,

 

(viii)        the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA, or

 

(ix)           any change in the actuarial assumptions or funding methods used for any Plan, where the effect of such change is to materially increase or materially reduce the unfunded benefit liability or obligation to make periodic contributions.

 

8.3.8.2           Notices of Involuntary Termination and Annual Reports.  Promptly after receipt thereof, copies of:  (a) all notices received by the Borrower or any other member of the ERISA Group of the PBGC’s intent to terminate any Plan administered or maintained by the Borrower or any member of the ERISA Group, or to have a trustee appointed to administer any such Plan; and (b) at the request of the Administrative Agent or any Lender, each annual report (IRS Form 5500 series) and all accompanying schedules, the most recent actuarial reports, the most recent financial information concerning the financial status of each Plan administered or maintained by the Borrower or any other member of the ERISA Group, and schedules showing the amounts contributed to each such Plan by or on behalf of the Borrower or any other member of the ERISA Group in which any of their personnel participate or from which such personnel may derive a benefit, and each Schedule B (Actuarial Information) to the annual

 

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report filed by the Borrower or any other member of the ERISA Group with the Internal Revenue Service with respect to each such Plan.

 

8.3.8.3           Notice of Voluntary Termination.  Promptly upon the filing thereof, copies of any Form 5310, or any successor or equivalent form to Form 5310, filed with the PBGC in connection with the termination of any Plan.

 

9.             DEFAULT

 

9.1           Events of Default.  An Event of Default shall mean the occurrence or existence of any one or more of the following events or conditions (whatever the reason therefor and whether voluntary, involuntary or effected by operation of Law):

 

9.1.1           Payments Under Loan Documents.  The Borrower shall fail to pay any principal of any Loan (including scheduled installments or the payment due at maturity), Reimbursement Obligation or Letter of Credit or Obligation or any interest on any Loan, Reimbursement Obligation or Letter of Credit Obligation or any other amount owing hereunder or under the other Loan Documents on the date on which such principal, interest or other amount becomes due in accordance with the terms hereof or thereof;

 

9.1.2           Breach of Warranty.  Any representation or warranty made at any time by any of the Loan Parties herein or by any of the Loan Parties in any other Loan Document, or in any certificate, other instrument or statement furnished pursuant to the provisions hereof or thereof, shall prove to have been false or misleading in any material respect as of the time it was made or furnished;

 

9.1.3           Breach of Negative Covenants or Visitation Rights.  Any of the Loan Parties shall default in the observance or performance of any covenant contained in Section 8.1.6 [Visitation Rights], Section 8.1.12 [Subordination of Intercompany Loans] or Section 8.2 [Negative Covenants];

 

9.1.4           Breach of Other Covenants.  Any of the Loan Parties shall default in the observance or performance of any other covenant, condition or provision hereof or of any other Loan Document and such default shall continue unremedied for a period of ten (10) Business Days after any executive officer of any Loan Party becomes aware of the occurrence thereof (such grace period to be applicable only in the event such default can be remedied by corrective action of the Loan Parties as determined by the Administrative Agent in its sole discretion);

 

9.1.5           Defaults in Other Agreements or Indebtedness.  A default or event of default shall occur at any time under the terms of (i) any Material Contract or (ii) any other agreement involving borrowed money or the extension of credit or any other Indebtedness under which any Loan Party or Subsidiary of any Loan Party may be obligated as a borrower or guarantor in excess of $5,000,000 in the aggregate, and such breach, default or event of default consists of the failure to pay (beyond any period of grace permitted with respect thereto, whether waived or not) any Indebtedness when due (whether at stated maturity, by acceleration or otherwise) or if such breach or default permits or causes the acceleration of any Indebtedness (whether or not such right shall have been waived) or the termination of any commitment to lend;

 

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9.1.6           Final Judgments or Orders.  Any final judgments or orders for the payment of money in excess of $7,500,000 in the aggregate shall be entered against any one Loan Party or any combination of Loan Parties by a court having jurisdiction in the premises, which judgment is not discharged, vacated, bonded or stayed pending appeal within a period of thirty (30) days from the date of entry;

 

9.1.7           Loan Document Unenforceable.  Any of the Loan Documents shall cease to be legal, valid and binding agreements enforceable against the party executing the same or such party’s successors and assigns (as permitted under the Loan Documents) in accordance with the respective terms thereof or shall in any way be terminated (except in accordance with its terms) or become or be declared ineffective or inoperative or shall in any way be challenged or contested or cease to give or provide the respective Liens, rights, titles, interests, remedies, powers or privileges intended to be created thereby;

 

9.1.8           Uninsured Losses; Proceedings Against Assets.  There shall occur any material uninsured damage to or loss, theft or destruction of any of property of the Loan Parties in excess of $7,500,000 or any of the Loan Parties’ or any of their Subsidiaries’ assets are attached, seized, levied upon or subjected to a writ or distress warrant; or such come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and the same is not cured within thirty (30) days thereafter;

 

9.1.9           Notice of Lien or Assessment.  A notice of Lien or assessment in excess of $7,500,000 which is not a Permitted Lien is filed of record with respect to all or any part of any of the Loan Parties’ or any of their Subsidiaries’ assets by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipal or other governmental agency, including the PBGC, or any taxes or debts owing at any time or times hereafter to any one of these becomes payable and the same is not paid within thirty (30) days after the same becomes payable;

 

9.1.10         Insolvency. Any Loan Party or any Material Subsidiary of a Loan Party ceases to be solvent or admits in writing its inability to pay its debts as they mature;

 

9.1.11         Events Relating to Plans and Benefit Arrangements.  Any of the following occurs:  (i) any Reportable Event, which the Administrative Agent determines in good faith constitutes grounds for the termination of any Plan by the PBGC or the appointment of a trustee to administer or liquidate any Plan, shall have occurred and be continuing; (ii) proceedings shall have been instituted or other action taken to terminate any Plan, or a termination notice shall have been filed with respect to any Plan; (iii) a trustee shall be appointed to administer or liquidate any Plan; (iv) the PBGC shall give notice of its intent to institute proceedings to terminate any Plan or Plans or to appoint a trustee to administer or liquidate any Plan; and, in the case of the occurrence of (i), (ii), (iii) or (iv) above, the Administrative Agent determines in good faith that the amount of the Borrower’s liability is likely to exceed 10% of its Consolidated Tangible Net Worth; (v) the Borrower or any member of the ERISA Group shall fail to make any contributions when due to a Plan or a Multiemployer Plan; (vi) the Borrower or any other member of the ERISA Group shall make any amendment to a Plan with respect to which security is required under Section 307 of ERISA; (vii) the Borrower or any other member of the ERISA Group shall withdraw completely or partially from a Multiemployer Plan; (viii) the

 

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Borrower or any other member of the ERISA Group shall withdraw (or shall be deemed under Section 4062(e) of ERISA to withdraw) from a Multiple Employer Plan; or (ix) any applicable Law is adopted, changed or interpreted by any Official Body with respect to or otherwise affecting one or more Plans, Multiemployer Plans or Benefit Arrangements and, with respect to any of the events specified in (v), (vi), (vii), (viii) or (ix), the Administrative Agent determines in good faith that any such occurrence would be reasonably likely to materially and adversely affect the total enterprise represented by the Borrower and the other members of the ERISA Group;

 

9.1.12         Cessation of Business.  Any Loan Party or Subsidiary of a Loan Party ceases to conduct its business as contemplated, except as expressly permitted under Section 8.2.6 [Liquidations, Mergers, Etc.] or 8.2.7 [Dispositions of Assets or Subsidiaries], or any Loan Party or Subsidiary of a Loan Party is enjoined, restrained or in any way prevented by court order from conducting all or any material part of its business and such injunction, restraint or other preventive order is not dismissed within thirty (30) days after the entry thereof;

 

9.1.13         Change of Control.  A Change of Control shall occur;

 

9.1.14         Involuntary Proceedings.  A proceeding shall have been instituted in a court having jurisdiction in the premises seeking a decree or order for relief in respect of any Loan Party or Subsidiary of a Loan Party in an involuntary case under any applicable bankruptcy, insolvency, reorganization or other similar Law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or Subsidiary of a Loan Party for any substantial part of its property, or for the winding-up or liquidation of its affairs, and such proceeding shall remain undismissed or unstayed and in effect for a period of thirty (30) consecutive days or such court shall enter a decree or order granting any of the relief sought in such proceeding;

 

9.1.15         Voluntary Proceedings.  Any Loan Party or Subsidiary of a Loan Party shall commence a voluntary case under any applicable bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or other similar official) of itself or for any substantial part of its property 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 action in furtherance of any of the foregoing; or

 

9.1.16         Loss of Bonding Capability.  (i) The Loan Parties, taken as a whole, shall fail to maintain sufficient mine bonding capacity to be able to conduct their operations substantially as contemplated by the mining plans used in preparing the Financial Projections, or (ii) the Loan Parties shall default, in any material manner, in the compliance with or the performance of its surety bonding agreements and obligations (including any default in the payment of outstanding reimbursement claims owing in connection with any of the bonds outstanding) and such default would materially adversely affect the Loan Parties’, taken as a whole, ability to conduct their operations substantially as contemplated by the mining plans used in preparing the Financial Projections.

 

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9.2                                 Consequences of Event of Default.

 

9.2.1                                  Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings.  If an Event of Default specified under Sections 9.1.1 through 9.1.13 or 9.1.16 shall occur and be continuing, the Lenders and the Administrative Agent shall be under no further obligation to make Loans and the Issuing Lender shall be under no obligation to issue Letters of Credit and the Administrative Agent may, and upon the request of the Required Lenders, shall (i) by written notice to the Borrower, declare the unpaid principal amount of the Notes then outstanding and all interest accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to the Lenders hereunder and thereunder to be forthwith due and payable, and the same shall thereupon become and be immediately due and payable to the Administrative Agent for the benefit of each Lender without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, and (ii) require the Borrower to, and the Borrower shall thereupon, deposit in a non-interest-bearing account with the Administrative Agent, as cash collateral for its Obligations under the Loan Documents, an amount equal to the maximum amount currently or at any time thereafter available to be drawn on all outstanding Letters of Credit, and the Borrower hereby pledges to the Administrative Agent and the Lenders, and grants to the Administrative Agent and the Lenders a security interest in, all such cash as security for such Obligations.  Upon the curing of all existing Events of Default to the satisfaction of the Required Lenders, the Administrative Agent shall return such cash collateral to the Borrower; and

 

9.2.2                                  Bankruptcy, Insolvency or Reorganization Proceedings.  If an Event of Default specified under Section 9.1.14 [Involuntary Proceedings] or 9.1.15 [Voluntary Proceedings] shall occur, the Lenders and the Administrative Agent shall be under no further obligation to make Loans hereunder and the Issuing Lender shall be under no obligation to issue Letters of Credit and the unpaid principal amount of the Loans then outstanding and all interest accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to the Lenders hereunder and thereunder shall be immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and

 

9.2.3                                  Set-off.  If an Event of Default shall occur and be continuing, any Lender to whom any Obligation is owed by any Loan Party hereunder or under any other Loan Document or any participant of such Lender which has agreed in writing to be bound by the provisions of Section 5.3 [Sharing of Payments by Lenders] and any branch, Subsidiary or Affiliate of such Lender or participant anywhere in the world shall have the right, in addition to all other rights and remedies available to it, without notice to such Loan Party, to set-off against and apply to the then unpaid balance of all the Loans and all other Obligations of the Borrower and the other Loan Parties hereunder or under any other Loan Document any debt owing to, and any other funds held in any manner for the account of, the Borrower or such other Loan Party by such Lender or participant or by such branch, Subsidiary or Affiliate, including all funds in all deposit accounts (whether time or demand, general or special, provisionally credited or finally credited, or otherwise) now or hereafter maintained by the Borrower or such other Loan Party for its own account (but not including funds held in custodian or trust accounts) with such Lender or participant or such branch, Subsidiary or Affiliate.  Such right shall exist whether or not any Lender or the Administrative Agent shall have made any demand under this Agreement or any other Loan Document, whether or not such debt owing to or funds held for the account of the

 

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Borrower or such other Loan Party is or are matured or unmatured and regardless of the existence or adequacy of any collateral, Guaranty or any other security, right or remedy available to any Lender or the Administrative Agent; and

 

9.2.4                                  Suits, Actions, Proceedings.  If an Event of Default shall occur and be continuing, and whether or not the Administrative Agent shall have accelerated the maturity of Loans pursuant to any of the foregoing provisions of this Section 9.2, the Administrative Agent or any Lender, if owed any amount with respect to the Loans, may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement or the other Loan Documents, including as permitted by applicable Law the obtaining of the ex  parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Administrative Agent or such Lender; and

 

9.2.5                                  Application of Proceeds; Collateral Sharing.

 

9.2.5.1                                  Application of Proceeds.  From and after the date on which the Administrative Agent has taken any action pursuant to this Section 9.2 and until all Obligations of the Loan Parties have been paid in full, any and all proceeds received by the Administrative Agent from any sale or other disposition of the Collateral, or any part thereof, or the exercise of any other remedy by the Administrative Agent, shall be applied as follows:

 

(i)                                     first, to reimburse the Administrative Agent and the Lenders for out-of-pocket costs, expenses and disbursements, including reasonable attorneys’ and paralegals’ fees and legal expenses, incurred by the Administrative Agent or the Lenders in connection with realizing on the Collateral or collection of any Obligations of any of the Loan Parties under any of the Loan Documents, including advances made by the Lenders or any one of them or the Administrative Agent for the reasonable maintenance, preservation, protection or enforcement of, or realization upon, the Collateral, including advances for taxes, insurance, repairs and the like and reasonable expenses incurred to sell or otherwise realize on, or prepare for sale or other realization on, any of the Collateral;

 

(ii)                                  second, to the repayment of all Obligations then due and unpaid of the Loan Parties to the Lenders incurred under this Agreement or any of the other Loan Documents or a Lender-Provided Interest Rate Hedge or a Lender-Provided Commodity Hedge, whether of principal, interest, fees, expenses or otherwise, on a pro rata basis; and

 

(iii)                               the balance, if any, as required by Law.

 

9.2.5.2                                  Collateral Sharing.  All Liens granted under a Loan Document (the “Collateral Documents”) shall secure ratably and on a pari passu basis:  (i) the Obligations in favor of the Administrative Agent and the Lenders hereunder and (ii) the Obligations incurred by any of the Loan Parties in favor of any Lender or any affiliate thereof which provides a Lender-Provided Interest Rate Hedge (the “IRH Provider”), a Lender-Provided Commodity Hedge (the “CH Provider”) or an Other Lender Provided Financial Service Product (the “Financial Service Product Provider”).  The Administrative Agent under the Collateral Documents shall be deemed

 

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to serve as the collateral agent (the “Collateral Agent”) for the IRH Provider, the CH Provider, the Financial Service Product Provider and the Lenders hereunder, provided that the Collateral Agent shall comply with the instructions and directions of the Administrative Agent (or the Lenders under this Agreement to the extent that this Agreement or any other Loan Documents empowers the Lenders to direct the Administrative Agent), as to all matters relating to the Collateral, including the maintenance and disposition thereof.  No IRH Provider, CH Provider or Financial Service Product Provider (except in its capacity as a Lender hereunder) shall be entitled or have the power to direct or instruct the Collateral Agent on any such matters or to control or direct in any manner the maintenance or disposition of the Collateral.

 

9.2.6                                  Other Rights and Remedies.  In addition to all of the rights and remedies contained in this Agreement or in any of the other Loan Documents, the Administrative Agent shall have all of the rights and remedies of a secured party under the Uniform Commercial Code or other applicable Law, all of which rights and remedies shall be cumulative and non-exclusive, to the extent permitted by Law.  The Administrative Agent may, and upon the request of the Required Lenders shall, exercise all post-default rights granted to the Administrative Agent and the Lenders under the Loan Documents or applicable Law.

 

9.3                                 Notice of Sale.  Any notice required to be given by the Administrative Agent of a sale, lease, or other disposition of the Collateral or any other intended action by the Administrative Agent, if given ten (10) days prior to such proposed action, shall constitute commercially reasonable and fair notice thereof to the Borrower.

 

10.                                 THE ADMINISTRATIVE AGENT

 

10.1                           Appointment and Authority.  Each of the Lenders and the Issuing Lender hereby irrevocably appoints PNC to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Section 10 are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lender, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.

 

10.2                           Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

 

10.3                           Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, the Administrative Agent:

 

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(a)                                  shall not be subject to any fiduciary or other implied duties, regardless of whether a Potential Default or Event of Default has occurred and is continuing;

 

(b)                                 shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law; and

 

(c)                                  shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

 

The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.1 [Modifications, Amendments or Waivers] and 9.2 [Consequences of Event of Default]) or (ii) in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not to have knowledge of any Potential Default or Event of Default unless and until notice describing such Potential Default or Event of Default is given to the Administrative Agent by the Borrower, a Lender or the Issuing Lender.

 

The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Potential Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Section 7 [Conditions of Lending and Issuance of Letters of Credit] or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

10.4                           Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance

 

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of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

10.5                           Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Section 10 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

 

10.6                           Resignation of Administrative Agent.  The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Lender and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with approval from the Borrower (so long as no Event of Default has occurred and is continuing), to appoint a successor, such approval not to be unreasonably withheld or delayed.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Lender under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the Issuing Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section 10.6.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 10 and Section 11.3 [Expenses; Indemnity;

 

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Damage Waiver] shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

 

If PNC resigns as Administrative Agent under this Section 10.6, PNC shall also resign as an Issuing Lender.  Upon the appointment of a successor Administrative Agent hereunder, such successor shall (i) succeed to all of the rights, powers, privileges and duties of PNC as the retiring Issuing Lender and Administrative Agent and PNC shall be discharged from all of its respective duties and obligations as Issuing Lender and Administrative Agent under the Loan Documents, and (ii) issue letters of credit in substitution for the Letters of Credit issued by PNC, if any, outstanding at the time of such succession or make other arrangement satisfactory to PNC to effectively assume the obligations of PNC with respect to such Letters of Credit.

 

10.7                           Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties 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 Lender and the Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

10.8                           No Other Duties, etc.  Anything herein to the contrary notwithstanding, none of the Co-Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the Issuing Lender hereunder.

 

10.9                           Administrative Agent’s Fee.  The Borrower shall pay to the Administrative Agent a nonrefundable fee (the “Administrative Agent’s Fee”) under the terms of a letter (the “Administrative Agent’s Letter”) between the Borrower and Administrative Agent, as amended from time to time.

 

10.10                     Authorization to Release Collateral and Guarantors.  The Lenders and Issuing Lenders authorize the Administrative Agent to release (i) any Collateral consisting of assets or equity interests sold or otherwise disposed of in a sale or other disposition or transfer permitted under Section 8.2.7 [Disposition of Assets or Subsidiaries] or 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], and (ii) any Guarantor from its obligations under the Guaranty Agreement if the ownership interests in such Guarantor are sold or otherwise disposed of or transferred to persons other than Loan Parties or Subsidiaries of the Loan Parties in a transaction permitted under Section 8.2.7 [Disposition of Assets or Subsidiaries] or 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions].

 

10.11                     No Reliance on Administrative Agent’s Customer Identification Program.  Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants

 

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or assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (i) any identity verification procedures, (ii) any recordkeeping, (iii) comparisons with government lists, (iv) customer notices or (v) other procedures required under the CIP Regulations or such other Laws.

 

11.                                 MISCELLANEOUS

 

11.1                           Modifications, Amendments or Waivers.  With the written consent of the Required Lenders, the Administrative Agent, acting on behalf of all the Lenders, and the Borrower, on behalf of the Loan Parties, may from time to time enter into written agreements amending or changing any provision of this Agreement or any other Loan Document or the rights of the Lenders or the Loan Parties hereunder or thereunder, or may grant written waivers or consents hereunder or thereunder.  Any such agreement, waiver or consent made with such written consent shall be effective to bind all the Lenders and the Loan Parties; provided, that, without the written consent of all of the Lenders, no such agreement, waiver or consent may be made which will:

 

11.1.1                            Increase of Commitment.  Increase the amount of the Revolving Credit Commitment of any Lender hereunder, except as pursuant to Section 2.10 [Increase in Commitments], without the consent of such Lender;

 

11.1.2                            Extension of Payment; Reduction of Principal Interest or Fees; Modification of Terms of Payment.  Whether or not any Loans are outstanding, extend the Expiration Date or the time for payment of principal or interest of any Loan, the Commitment Fee or any other fee payable to any Lender (other than the Administrative Agent’s Fee and any fees paid to the Issuing Lender), or reduce the principal amount of or the rate of interest borne by any Loan or reduce the Commitment Fee or any other fee payable to any Lender (other than the Administrative Agent’s Fee and any fees paid to the Issuing Lender), or otherwise affect the terms of payment of the principal of or interest of any Loan, the Commitment Fee or any other fee payable to any Lender, without the consent of each Lender directly affected thereby;

 

11.1.3                            Release of Collateral or Guarantor.  Except as permitted by Section 8.1.1 [Preservation of Existence, Etc.], Section 8.2.6 [Liquidations, Mergers, Consolidation, Acquisitions] or Section 8.2.7 [Disposition of Assets or Subsidiaries], release any Collateral consisting of capital stock or other ownership interests of any Loan Party or any of its Subsidiaries or substantially all of the assets of any Loan Party, any Guarantor from its Obligations under the Guaranty Agreement or any other security for any of the Loan Parties’ Obligations without the consent of all Lenders (other than Defaulting Lenders); provided that the foregoing consent shall not be required in connection with any dividend and distribution otherwise permitted by this Agreement pursuant to Section 8.2.5(i), which such consent is given

 

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solely by the Administrative Agent pursuant to Section 11.11 [Certain Actions by Administrative Agent]; or

 

11.1.4                            Miscellaneous.  Amend Section 5.2 [Pro Rata Treatment of Lenders], 10.3 [Exculpatory Provisions] or 5.3 [Sharing of Payments by Lenders] or this Section 11.1, alter any provision regarding the pro rata treatment of the Lenders or requiring all Lenders to authorize the taking of any action or reduce any percentage specified in the definition of Required Lenders, in each case without the consent of all of the Lenders (other than Defaulting Lenders);

 

provided that no agreement, waiver or consent which would modify the interests, rights or obligations of the Administrative Agent or the Issuing Lender may be made without the written consent of such Administrative Agent or Issuing Lender, as applicable, and provided, further that, if in connection with any proposed waiver, amendment or modification referred to in Sections 11.1.1 through 11.1.4 above, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained (each a “Non-Consenting Lender”), then the Borrower shall have the right to replace any such Non-Consenting Lender with one or more replacement Lenders pursuant to Section 5.6.2 [Replacement of a Lender].

 

11.2                           No Implied Waivers; Cumulative Remedies.  No course of dealing and no delay or failure of the Administrative Agent or any Lender in exercising any right, power, remedy or privilege under this Agreement or any other Loan Document shall affect any other or future exercise thereof or operate as a waiver thereof, nor shall any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power, remedy or privilege or preclude any further exercise thereof or of any other right, power, remedy or privilege.  The rights and remedies of the Administrative Agent and the Lenders under this Agreement and any other Loan Documents are cumulative and not exclusive of any rights or remedies which they would otherwise have.  Any waiver, permit, consent or approval of any kind or character on the part of any Lender of any breach or default under this Agreement or any such waiver of any provision or condition of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing.

 

11.3                           Expenses; Indemnity; Damage Waiver.

 

11.3.1                            Costs and Expenses.  The Borrower shall pay (i) all out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), and shall pay all fees and time charges and disbursements for attorneys who may be employees of the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket expenses incurred by the Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the Issuing Lender (including the fees, charges and disbursements of any counsel for the Administrative

 

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Agent, any Lender or the Issuing Lender), and shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent, any Lender or the Issuing Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit, and (iv) all reasonable out-of-pocket expenses of the Administrative Agent’s regular employees and agents engaged periodically to perform audits of the Loan Parties’ books, records and business properties.

 

11.3.2                            Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the Issuing Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance or nonperformance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) breach of representations, warranties or covenants of the Borrower under the Loan Documents, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, including any such items or losses relating to or arising under Environmental Laws or pertaining to environmental matters, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.

 

11.3.3                            Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under Sections 11.3.1 [Costs and Expenses] or 11.3.2 [Indemnification by the Borrower] to be paid by it to the Administrative Agent (or any sub-agent thereof), the Issuing Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Issuing Lender or such Related Party, as the case may be, such Lender’s Ratable Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid

 

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amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the Issuing Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or Issuing Lender in connection with such capacity.

 

11.3.4                            Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in Section 11.3.2 [Indemnification by Borrower] shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

 

11.3.5                            Payments.  All amounts due under this Section shall be payable not later than ten (10) days after demand therefor.

 

11.4                           Holidays.  Whenever payment of a Loan to be made or taken hereunder shall be due on a day which is not a Business Day such payment shall be due on the next Business Day (except as provided in Section 4.2 [Interest Periods] with respect to Interest Periods under the LIBOR Rate Option) and such extension of time shall be included in computing interest and fees, except that the Loans shall be due on the Business Day preceding the Expiration Date if the Expiration Date is not a Business Day.  Whenever any payment or action to be made or taken hereunder (other than payment of the Loans) shall be stated to be due on a day which is not a Business Day, such payment or action shall be made or taken on the next following Business Day, and such extension of time shall not be included in computing interest or fees, if any, in connection with such payment or action.

 

11.5                           Notices; Effectiveness; Electronic Communication.

 

11.5.1                            Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 11.5.2 [Electronic Communications]), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier (i) if to a Lender, to it at its address set forth in its administrative questionnaire, or (ii) if to any other Person, to it at its address set forth on Schedule 1.1(B).

 

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices delivered through electronic communications to the

 

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extent provided in Section 11.5.2 [Electronic Communications], shall be effective as provided in such Section.

 

11.5.2                            Electronic Communications.  Notices and other communications to the Lenders and the Issuing Lender hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or the Issuing Lender if such Lender or the Issuing Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

11.5.3                            Change of Address, Etc.  Any party hereto may change its address, e-mail address or telecopier number for notices and other communications hereunder by notice to the other parties hereto.

 

11.6                           Severability.  The provisions of this Agreement are intended to be severable.  If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.

 

11.7                           Duration; Survival.  All representations and warranties of the Loan Parties contained herein or made in connection herewith shall survive the execution and delivery of this Agreement, the completion of the transactions hereunder and Payment In Full.  All covenants and agreements of the Borrower contained herein relating to the payment of principal, interest, premiums, additional compensation or expenses and indemnification, including those set forth in the Notes, Section 5 [Payments] and Section 11.3 [Expenses; Indemnity; Damage Waiver], shall survive Payment In Full.  All other covenants and agreements of the Loan Parties shall continue in full force and effect from and after the date hereof and until Payment In Full.

 

11.8                           Successors and Assigns.

 

11.8.1                            Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan

 

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Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.8.2 [Assignments by Lenders], (ii) by way of participation in accordance with the provisions of Section 11.8.4 [Participations], or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.8.6 [Certain Pledges; Successors and Assigns Generally] (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.8.4 [Participations] and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

11.8.2                            Assignments by Lenders.  Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

 

(i)                                     Minimum Amounts.

 

(A)                              in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

 

(B)                                in any case not described in clause (i)(A) of this Section 11.8.2, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption Agreement with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption Agreement, as of the Trade Date) shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Commitment of the assigning Lender, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).

 

(ii)                                  Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned.

 

(iii)                               Required Consents.  No consent shall be required for any assignment except for the consent of the Administrative Agent (which shall not be unreasonably withheld or delayed) and:

 

(A)                              the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is

 

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continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; and

 

(B)                                the consent of the Issuing Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding).

 

(iv)                              Assignment and Assumption Agreement.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption Agreement, together with a processing and recordation fee of $3,500.00 and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an administrative questionnaire provided by the Administrative Agent.

 

(v)                                 No Assignment to Borrower.  No such assignment shall be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

 

(vi)                              No Assignment to Natural Persons.  No such assignment shall be made to a natural person.

 

Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.8.3 [Register], from and after the effective date specified in each Assignment and Assumption Agreement, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 4.4 [LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available], 5.8 [Increased Costs], and 11.3 [Expenses, Indemnity; Damage Waiver]  with respect to facts and circumstances occurring prior to the effective date of such assignment.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.8.2 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.8.4 [Participations].

 

11.8.3                            Register.  The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain a record of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time.  Such register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is in such register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  Such register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

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11.8.4                            Participations.  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders, Issuing Lender shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.

 

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver with respect to Sections 11.1.1 [Increase of Commitment, Etc.], 11.1.2 [Extension of Payment, Etc.], or 11.1.3 [Release of Collateral or Guarantor]).  Subject to Section 11.8.5 [Limitations upon Participant Rights Successors and Assigns Generally], the Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.4 [LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available] and 5.8 [Increased Costs]  to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.8.2 [Assignments by Lenders].  To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 9.2.3 [Setoff]  as though it were a Lender; provided such Participant agrees to be subject to Section 5.3 [Sharing of Payments by Lenders]  as though it were a Lender.

 

11.8.5                            Limitations upon Participant Rights Successors and Assigns Generally.  A Participant shall not be entitled to receive any greater payment under Sections 5.8 [Increased Costs], 5.9 [Taxes] or 11.3 [Expenses; Indemnity; Damage Waiver]  than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.9 [Taxes]  unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 5.9.5 [Status of Lenders]  as though it were a Lender.

 

11.8.6                            Certain Pledges; Successors and Assigns Generally.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

11.9                           Confidentiality.

 

11.9.1                            General.  Each of the Administrative Agent, the Lenders and the Issuing Lender agrees to maintain the confidentiality of the Information, except that Information may be

 

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disclosed (i) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iii) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (vii) with the consent of the Borrower or (viii) to the extent such Information (Y) becomes publicly available other than as a result of a breach of this Section or (Z) becomes available to the Administrative Agent, any Lender, the Issuing Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or the other Loan Parties.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

11.9.2                            Sharing Information With Affiliates of the Lenders.  Each Loan Party acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided to the Borrower or one or more of its Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such Lender and each of the Loan Parties hereby authorizes each Lender to share any information delivered to such Lender by such Loan Party and its Subsidiaries pursuant to this Agreement to any such Subsidiary or Affiliate subject to the provisions of Section 11.9.1 [General].

 

11.10                     Joinder of Guarantors.  Any Subsidiary of the Borrower which is required to join this Agreement as a Guarantor pursuant to Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] shall execute and deliver to the Administrative Agent:  (i) a Guarantor Joinder in substantially the form attached hereto as Exhibit 1.1(G)(1) pursuant to which it shall join as a Guarantor each of the documents to which the Guarantors are parties; (ii) documents in the forms described in Section 7.1 [First Loans] modified as appropriate to relate to such Subsidiary; and (iii) documents necessary to grant and perfect Prior Security Interests to the Administrative Agent for the benefit of the Lenders in all Collateral held by such Subsidiary.  The Loan Parties shall deliver such Guarantor Joinder and related documents to the Administrative Agent within thirty (30) calendar days after the date of the filing of such Subsidiary’s articles of incorporation if the Subsidiary is a corporation, the date of the filing of its certificate of limited partnership if it is a limited partnership or the date of its organization if it is an entity other than a limited partnership or corporation.  Notwithstanding the foregoing or anything else contained in this Agreement, the Excluded Subsidiaries shall not (a) be required to join in this Agreement or any other Loan Document as a Guarantor, (b) be required to grant any Liens to the Administrative Agent for the benefit of the Lenders in the assets held by the Excluded Subsidiaries, or (c) be

 

99











 

required to have pledged any ownership interests held by it or any Loan Party in the Excluded Subsidiaries.  Notwithstanding anything contained in this Section 11.10 or Section 8.2.9 of this Agreement, with respect to any Subsidiary created or acquired by the Borrower subsequent to the Closing Date, the Loan Parties shall deliver such Guarantor Joinder and related documents to the Administrative Agent within thirty (30) calendar days after the date of such acquisition or creation.

 

11.11                     Calculations.  In the absence of gross negligence or willful misconduct, the Administrative Agent shall not be liable for any error in computing the amount payable to any Lender whether in respect of the Loans, fees or any other amounts due to the Lenders under this Agreement.  In the event an error in computing any amount payable to any Lender is made, the Administrative Agent, the Borrower and each affected Lender shall, forthwith upon discovery of such error, make such adjustments as shall be required to correct such error, and any compensation therefor will be calculated at the Federal Funds Effective Rate.

 

11.12                     Counterparts; Integration; Effectiveness.

 

11.12.1                      Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof including any prior confidentiality agreements and commitments.  Except as provided in Section 7 [Conditions Of Lending And Issuance Of Letters Of Credit], this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy or e-mail shall be effective as delivery of a manually executed counterpart of this Agreement.

 

11.13                     CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.

 

11.13.1                      Governing Law.  This Agreement shall be deemed to be a contract under the Laws of the Commonwealth of Pennsylvania without regard to its conflict of laws principles.  Each standby Letter of Credit issued under this Agreement shall be subject either to the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce (the “ICC”) at the time of issuance (“UCP”) or the rules of the International Standby Practices (ICC Publication Number 590) (“ISP98”), as determined by the Issuing Lender, and each trade Letter of Credit shall be subject to UCP, and in each case to the extent not inconsistent therewith, the Laws of the Commonwealth of Pennsylvania without regard to is conflict of laws principles.

 

11.13.2                      SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR

 

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ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH PENNSYLVANIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

11.13.3                      WAIVER OF VENUE.  THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN THIS SECTION 11.13.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND AGREES NOT ASSERT ANY SUCH DEFENSE.

 

11.13.4                      SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.5 [NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION].  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

11.13.5                      WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO

 

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(A) CERTIFIES THAT NO REPRESENTATIVE, ADMINISTRATIVE AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

11.14                     USA Patriot Act Notice.  Each Lender that is subject to the USA Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Loan Parties that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of Loan Parties and other information that will allow such Lender or Administrative Agent, as applicable, to identify the Loan Parties in accordance with the USA Patriot Act.

 

[SIGNATURE PAGES FOLLOW]

 

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[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, have executed this Agreement as of the day and year first above written.

 

BORROWER:

 

	
ATTEST:
    	
RHINO   ENERGY LLC, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:   
    	
/s/   Richard A. Boone
    	
(SEAL)
    
	
Name:
    	
 
    	
 
    	
Name:   Richard A Boone
    
	
Title
    	
 
    	
 
    	
Title:   Senior Vice President and Chief Financial Officer
    


 











 

 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

GUARANTORS:

 

	
 
    	
BUCK   COAL, INC.
    
	
 
    	
CAM   AIRCRAFT LLC
    
	
 
    	
CAM-BB LLC
    
	
 
    	
CAM COAL TRADING LLC
    
	
 
    	
CAM-COLORADO LLC
    
	
 
    	
CAM-KENTUCKY   REAL ESTATE LLC
    
	
 
    	
CAM   MINING LLC
    
	
 
    	
CAM-OHIO   REAL ESTATE LLC
    
	
 
    	
CASTLE   VALLEY MINING LLC
    
	
 
    	
CLINTON   STONE LLC
    
	
 
    	
DEANE   MINING LLC
    
	
 
    	
HOPEDALE   MINING LLC
    
	
 
    	
LEESVILLE   LAND, LLC
    
	
 
    	
MCCLANE   CANYON MINING LLC
    
	
 
    	
RAM   PROCESSING, INC.
    
	
 
    	
RESERVE   HOLDINGS LLC
    
	
 
    	
RHINO   COALFIELD SERVICES LLC
    
	
 
    	
RHINO   EXPLORATION LLC
    
	
 
    	
RHINO   NORTHERN HOLDINGS LLC
    
	
 
    	
RHINO   OILFIELD SERVICES LLC
    
	
 
    	
RHINO   SERVICES LLC
    
	
 
    	
RHINO   TECHNOLOGIES LLC
    
	
 
    	
RHINO   TRUCKING LLC
    
	
 
    	
SANDS   HILL MINING LLC
    
	
 
    	
SPRINGDALE   LAND, LLC
    
	
 
    	
TAYLORVILLE   MINING LLC
    
	
 
    	
THE   ELK HORN COAL COMPANY, LLC
    
	
 
    	
THE   ELK HORN CORPORATION
    
	
 
    	
TRIAD   ROOF SUPPORT SYSTEMS LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Richard A. Boone
    
	
 
    	
Name:   
    	
Richard   A Boone
    
	
 
    	
Title:   
    	
Senior   Vice President and Chief Financial Officer of each Guarantor listed above on   behalf of each such Guarantor
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
RHINO   RESOURCE PARTNERS LP
    
	
 
    	
 
    
	
 
    	
By:   
    	
Rhino   GP LLC, its general partner
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Richard A. Boone
    
	
 
    	
Name:   
    	
Richard   A Boone
    
	
 
    	
Title:   
    	
Vice   President and Chief Financial Officer
    


 












 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
PNC   BANK, NATIONAL ASSOCIATION, individually and as   Administrative Agent
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Richard C. Munsick
    
	
 
    	
Name:   
    	
Richard   C. Munsick
    
	
 
    	
Title:   
    	
Senior   Vice President
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
UNION  BANK, N.A.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Bryan Read
    
	
 
    	
Name:   
    	
Bryan   Read
    
	
 
    	
Title:   
    	
Vice   President
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
RAYMOND   JAMES BANK, FSB
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Garrett T. McKinnon
    
	
 
    	
Name:   
    	
Garrett   T. McKinnon
    
	
 
    	
Title:   
    	
Senior   Vice President
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
THE   HUNTINGTON NATIONAL BANK
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   W. Christopher Kohler
    
	
 
    	
Name:   
    	
W.   Christopher Kohler
    
	
 
    	
Title:   
    	
Senior   Vice President
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
WELLS   FARGO BANK, NATIONAL ASSOCIATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Johnathan R. Richardson
    
	
 
    	
Name:   
    	
Jonathan   R. Richardson
    
	
 
    	
Title:   
    	
Vice   President
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
FIFTH   THIRD BANK
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Mary-Alicha Wheldon
    
	
 
    	
Name:   
    	
Mary-Alicha   Weldon
    
	
 
    	
Title:   
    	
Vice   President
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
ROYAL   BANK OF CANADA
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Don McKinnerney
    
	
 
    	
Name:   
    	
Don   McKinnerney
    
	
 
    	
Title:
    	
 
    


 











 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
BRANCH   BANKING AND TRUST COMPANY
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Troy R. Weaver
    
	
 
    	
Name:   
    	
Troy   R. Weaver
    
	
 
    	
Title:   
    	
Senior   Vice President
    


 












 

[SIGNATURE PAGE - AMENDED AND RESTATED CREDIT AGREEMENT]

 

 

	
 
    	
FIRST   COMMONWEALTH BANK
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Stephen J. Orban
    
	
 
    	
Name:   
    	
Stephen   J. Orban
    
	
 
    	
Title:   
    	
Senior   Vice President
    


 











 

SCHEDULE 1.1(A)

PRICING GRID —

VARIABLE PRICING AND FEES BASED ON LEVERAGE RATIO

 

	
Level
    	
 
    	
Leverage Ratio
    	
 
    	
Commitment
   Fee
    	
 
    	
Letter of
   Credit Fee
    	
 
    	
Revolving Credit
   Base Rate Spread
    	
 
    	
Revolving Credit
   LIBOR Rate
   Spread
    	
 
    
	
I
    	
 
    	
Less   than 1.50 to 1.00
    	
 
    	
0.375
    	
%
    	
2.50
    	
%
    	
1.50
    	
%
    	
2.50
    	
%
    
	
II
    	
 
    	
Greater   than or equal to 1.50 to 1.00 but less than 2.00 to 1.00
    	
 
    	
0.375
    	
%
    	
2.75
    	
%
    	
1.75
    	
%
    	
2.75
    	
%
    
	
III
    	
 
    	
Greater   than or equal to 2.00 to 1.00 but less than 2.50 to 1.00
    	
 
    	
0.50
    	
%
    	
3.00
    	
%
    	
2.00
    	
%
    	
3.00
    	
%
    
	
IV
    	
 
    	
Greater   than or equal to 2.50 to 1.00
    	
 
    	
0.50
    	
%
    	
3.25
    	
%
    	
2.25
    	
%
    	
3.25
    	
%
    


 

For purposes of determining the Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of Credit Fee Rate:

 

(a)                                  The Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of Credit Fee Rate shall be set on the Closing Date to the fees and spreads associated with “Level III” pricing and shall remain at such level until the delivery of the Compliance Certificate for the fiscal quarter ending September 30, 2011.

 

(b)                                 The Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of Credit Fee Rate shall be recomputed as of the end of each fiscal quarter ending after the Closing Date based on the Leverage Ratio as of such quarter end.  Any increase or decrease in the Applicable Margin, the Applicable Commitment Fee Rate or the Applicable Letter of Credit Fee Rate computed as of a quarter end shall be effective on the date on which the Compliance Certificate evidencing such computation is due to be delivered under Section 8.3.3 [Certificate of Borrower].  If a Compliance Certificate is not delivered when due in accordance with such Section 8.3.3, then the rates in Level IV shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.

 











 

(c)                                  If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the Issuing Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  This paragraph shall not limit the rights of the Administrative Agent, any Lender or the Issuing Lender, as the case may be, under Section 2.9 [Letter of Credit Subfacility] or 4.3 [Interest After Default] or 9 [Default].  The Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.

 

2











 

SCHEDULE 1.1(B)

 

Commitments of Lenders and Addresses for Notices

 

	
Lender
    	
 
    	
Amount of
   Commitment for
   Revolving Credit
   Loans
    	
 
    	
Ratable Share
    	
 
    
	
Name:
    	
 
    	
PNC   Bank, National Association
    	
 
    	
$
    	
45,000,000
    	
 
    	
15.000000000
    	
%
    
	
Address:
    	
 
    	
One   PNC Plaza
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
249 Fifth Avenue
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Pittsburgh, Pennsylvania 15222
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Richard   C. Munsick, Senior Vice President
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(412)   762-4299
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(412)   762-2571
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
richard.munsick@pnc.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
Union   Bank, N.A.
    	
 
    	
$
    	
45,000,000
    	
 
    	
15.000000000
    	
%
    
	
Address:
    	
 
    	
445   South Figueroa Street - 15th Floor
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Los   Angeles, California 90071
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Bryan   Read, Vice President
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(213)   236-4128
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(213)   236-4096
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
bryan.read@uboc.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
Raymond   James Bank, FSB
    	
 
    	
$
    	
35,000,000
    	
 
    	
11.666666667
    	
%
    
	
Address:
    	
 
    	
710   Carillon Parkway
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
St.   Petersburg, Florida 33716
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Garrett   T. McKinnon, Senior Vice President
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(727)   567-4324
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(866)   205-1396
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
garrett.mckinnon@raymondjames.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
The   Huntington National Bank
    	
 
    	
$
    	
35,000,000
    	
 
    	
11.666666667
    	
%
    
	
Address:
    	
 
    	
310   Grant Street, Suite 400
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Pittsburgh,   PA 15219
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
W.   Christopher Kohler, Senior Vice President
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(412)   227-6496
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(412)   227-6108
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
Chris.Kohler@huntington.com
    	
 
    	
 
    	
 
    	
 
    	
 
    


 











 

	
Lender
    	
 
    	
Amount of
   Commitment for
   Revolving Credit
   Loans
    	
 
    	
Ratable Share
    	
 
    
	
Name:
    	
 
    	
Wells   Fargo Bank, National Association
    	
 
    	
$
    	
35,000,000
    	
 
    	
11.666666667
    	
%
    
	
Address:
    	
 
    	
201   S. Jefferson Street, 2nd Floor
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Roanoke,   Virginia 24011
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Jonathan   R. Richardson,
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Vice   President
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(540)   563-7691
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(540)   563-6320
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
jonathan.richardson@wachovia.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
Fifth   Third Bank
    	
 
    	
$
    	
35,000,000
    	
 
    	
11.666666667
    	
%
    
	
Address:
    	
 
    	
250   West Main Street - Suite 300
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Lexington,   Kentucky 40507
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Mary-Alicha   Weldon, Vice President
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(859)   455-5404
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(859)   455-5414
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
mary-alicha.weldon@53.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
Royal   Bank of Canada
    	
 
    	
$
    	
35,000,000
    	
 
    	
11.666666667
    	
%
    
	
Address:
    	
 
    	
3900   Williams Tower
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
2800 Post Oak Boulevard
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Houston, Texas 77056
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Don   McKinnerney
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(713)   403-5607
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(713)   403-5624
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
don.mckinnerney@rbccm.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
Branch   Banking and Trust Company
    	
 
    	
$
    	
20,000,000
    	
 
    	
6.666666667
    	
%
    
	
Address:
    	
 
    	
202   West 2nd Street, 16th Floor
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Winston-Salem,   NC 27101
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Troy   Weaver
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(336)   733-2735
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(336)   733-2740
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
TRWeaver@bbandt.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
First   Commonwealth Bank
    	
 
    	
$
    	
15,000,000
    	
 
    	
5.000000000
    	
%
    
	
Address:
    	
 
    	
Frick   Building - Suite 1600
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
437 Grant Street
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Pittsburgh, Pennsylvania 15219
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Attention:
    	
 
    	
Stephen   J. Orban, Senior Vice President
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
(412)   690-2212
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telecopy:
    	
 
    	
(412)   690-2206
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Email:
    	
 
    	
sorban@fcbanking.com
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
TOTAL
    	
 
    	
$
    	
300,000,000
    	
 
    	
100
    	
%
    


 

2











 

SCHEDULE 1.1(B)

 

COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES

 

Part 2 - Addresses for Notices to Borrower and Guarantors:

 

AGENT

 

	
Name:
    	
PNC   Bank, National Association
    
	
Address:
    	
One   PNC Plaza
    
	
 
    	
249   Fifth Avenue
    
	
 
    	
Pittsburgh,   Pennsylvania 15222
    
	
Attention:
    	
Richard   C. Munsick
    
	
Telephone:
    	
(412)   762-4299
    
	
Telecopy:
    	
(412)   762-2571
    
	
Email:
    	
richard.munsick@pnc.com
    
	
 
    	
 
    
	
ALL LOAN PARTIES:
    
	
 
    
	
Name:
    	
c/o Rhino Energy LLC
    
	
Address:
    	
424   Lewis Hargett Circle, Suite 250
    
	
 
    	
Lexington,   KY 40503
    
	
Attention:
    	
Richard   A. Boone, CFO
    
	
Telephone:
    	
(859)   389-6500
    
	
Telecopy:
    	
(859)   389-6588
    
	
Email:
    	
rboone@rhinolp.com
    
	
 
    	
 
    
	
with   a copy to:
    	
 
    
	
 
    	
 
    
	
Address:
    	
424   Lewis Hargett Circle, Suite 250
    
	
 
    	
Lexington,   KY 40503
    
	
Attention:
    	
Joseph   R. Miller, General Counsel
    
	
Telephone:
    	
(859)   389-6500
    
	
Telecopy:
    	
(859)   389-6588
    
	
Email:
    	
jmiller@rhinolp.com
    


 

3