Loan Agreement - Peninsula Ports Authority of Virginia and Dominion Terminal Associates
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
LOAN AGREEMENT
between
PENINSULA PORTS AUTHORITY OF VIRGINIA
and
DOMINION TERMINAL ASSOCIATES
September 1, 2003
-------------------------------------
$43,160,000
Coal Terminal Revenue Refunding Bonds
(Dominion Terminal Associates Project - Brink's Issue)
Series 2003
--------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS................................................................................1
ARTICLE II REPRESENTATIONS............................................................................1
Section 2.1 Representations of Issuer.........................................................2
Section 2.2 Representations of Company........................................................3
ARTICLE III COMPLETION OF THE PROJECT..................................................................4
Section 3.1 Project Complete..................................................................4
Section 3.2 Project Use.......................................................................4
Section 3.3 Operation of Project..............................................................4
ARTICLE IV ISSUANCE OF BONDS..........................................................................4
Section 4.1 Issuance of Bonds.................................................................4
ARTICLE V REPAYMENT OF LOAN..........................................................................4
Section 5.1 Repayment of Loan and Payment of Purchase Price of Bonds..........................5
Section 5.2 Additional Payments...............................................................5
Section 5.3 Prepayments.......................................................................6
Section 5.4 Assignment of Throughput Payments.................................................6
Section 5.5 Obligations of Company Unconditional..............................................6
ARTICLE VI OTHER COMPANY AGREEMENTS...................................................................6
Section 6.1 Maintenance of Existence..........................................................6
Section 6.2 Payment of Taxes..................................................................7
Section 6.3 Arbitrage.........................................................................7
Section 6.4 Company's Obligation with Respect to Tax Exemption of
Interest Paid on the Bonds........................................................7
Section 6.5 Issuer Fees and Expenses..........................................................8
ARTICLE VII NO RECOURSE TO ISSUER; INDEMNIFICATION.....................................................8
Section 7.1 No Recourse to Issuer.............................................................8
Section 7.2 Indemnification...................................................................8
ARTICLE VIII ASSIGNMENT.................................................................................9
Section 8.1 Assignment by Company.............................................................9
Section 8.2 Assignment by Issuer..............................................................9
-i-
<PAGE>
ARTICLE IX DEFAULTS AND REMEDIES......................................................................9
Section 9.1 Remedies on Default...............................................................9
Section 9.2 Delay Not Waiver; Remedies........................................................9
Section 9.3 Attorneys' Fees and Expenses......................................................9
ARTICLE X MISCELLANEOUS.............................................................................10
Section 10.1 Notices..........................................................................10
Section 10.2 Binding Effect...................................................................10
Section 10.3 Severability.....................................................................10
Section 10.4 Amendments.......................................................................10
Section 10.5 Right of Company To Perform Issuer's Agreements..................................10
Section 10.6 Applicable Law...................................................................10
Section 10.7 Captions; References to Sections.................................................10
Section 10.8 Complete Agreement...............................................................10
Section 10.9 Termination......................................................................10
Section 10.10 Counterparts.....................................................................11
Section 10.11 Limitation of Liability..........................................................11
Section 10.12 Limited Nature of Company's Obligations; Pittston Terminal's
Liability for Obligations of the Company; Certain Decisions
Regarding the Bonds..............................................................11
EXHIBIT A Description of the Facilities...................................................A-1
-ii-
<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of September 1, 2003, is entered into between
PENINSULA PORTS AUTHORITY OF VIRGINIA, a body politic and corporate and a
political subdivision of the Commonwealth of Virginia (the "Issuer"), and
DOMINION TERMINAL ASSOCIATES, a Virginia general partnership (the "Company").
Chapter 46 of the Acts of Assembly of 1952 of the Commonwealth of Virginia,
as amended and supplemented (the "Act"), authorizes the Issuer to issue revenue
bonds for any of its purposes and to issue bonds to refund such revenue bonds.
The Issuer proposes to issue its $43,160,000 Coal Terminal Revenue
Refunding Bonds (Dominion Terminal Associates Project - Brink's Issue) Series
2003 (the "Bonds") pursuant to the Indenture (defined below) in order to refund
the Issuer's Coal Terminal Revenue Refunding Bonds (Dominion Terminal Associates
Project) Series 1992 (the "1992 Bonds"), all on the terms and conditions set
forth in this Loan Agreement.
Accordingly, the Issuer and the Company agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Loan Agreement, unless the context clearly requires
otherwise, all terms defined in Article I of the Indenture have the same
meanings in this Loan Agreement. In addition, the following terms have the
following meanings:
"Fifth Supplemental Lease" means the Fifth Amendment and Supplement to
Lease, dated as of the date of this Loan Agreement, between the Issuer and the
Company.
"Indenture" means the Indenture of Trust relating to the Bonds, dated as of
the date of this Loan Agreement, between the Issuer and Wachovia Bank, National
Association, as Trustee, as amended or supplemented from time to time in
accordance with its terms.
"Lease" means the Lease, dated as of October 15, 1982, as amended and
supplemented between the Issuer and the Company.
"Project" means the Facilities described in Exhibit A.
ARTICLE II
REPRESENTATIONS
Section 2.1 Representations of Issuer. The Issuer represents as follows:
<PAGE>
(a) The Issuer (i) is a body politic and corporate and a political
subdivision of the Commonwealth, duly organized and existing under the laws of
the Commonwealth, (ii) has full power and authority to enter into and to
consummate the transactions contemplated by this Loan Agreement, the Fifth
Supplemental Lease and the Indenture, (iii) to the best of its knowledge is not
in default under any provisions of the laws of the Commonwealth, (iv) by proper
corporate action has duly authorized the execution and delivery of this Loan
Agreement, the Bonds, the Fifth Supplemental Lease and the Indenture, and (v)
had and continues to have full legal right, power and authority to enter into
and consummate the transactions contemplated by the Lease.
(b) Under existing statutes and decisions, no taxes on income or profits
are imposed on the Issuer. The Issuer will not knowingly take or omit to take
any action reasonably within its control that would impair the exclusion of
interest on the Bonds from gross income for federal income tax purposes.
(c) The execution and delivery by the Issuer of, and the consummation by
the Issuer of the transactions contemplated by, this Loan Agreement, the Fifth
Supplemental Lease and the Indenture will not conflict with, result in a breach
of or default under or (except with respect to the lien of the Indenture) result
in the imposition of any lien on any property of the Issuer pursuant to the
terms, conditions or provisions of any statute, order, rule, regulation,
agreement or instrument to which the Issuer is a party or by which it is bound.
(d) Each of this Loan Agreement, the Fifth Supplemental Lease and the
Indenture has been duly authorized, executed and delivered by the Issuer and
constitutes the legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws of general application
relating to or affecting creditors' rights generally and subject to the
availability of equitable remedies.
(e) There is no litigation or proceeding pending, or to the knowledge of
the Issuer threatened, which would adversely affect the validity of this Loan
Agreement, the Lease, the Indenture or the Bonds or the ability of the Issuer to
comply with its obligations under them.
(f) The Issuer is not in default under any of the provisions of the laws of
the Commonwealth which would affect its existence or its powers referred to in
subsection (a) of this Section. The Revenues pledged under the Indenture have
not been pledged in connection with any other obligation of the Issuer, and the
Issuer is not in default under any other obligation which would adversely affect
the transactions contemplated by this Loan Agreement, the Indenture or the
Bonds.
(g) The Issuer, at a meeting duly held in accordance with law, has found
and determined that, based on representations of the Company, all requirements
of the Act have been complied with and that the issuance of the Bonds to refund
the 1992 Bonds is in furtherance of the purposes for which the Issuer was
created.
2
<PAGE>
(h) No member, director, commissioner, officer or official of the Issuer
having any interest (financial, employment or other) in the Company or the
transactions contemplated by this Loan Agreement has participated in the
Issuer's approval of such transactions.
(i) The Issuer will apply the proceeds from the sale of the Bonds as
specified in the Indenture and this Loan Agreement. So long as any of the Bonds
remain outstanding and except as may be authorized by the Indenture, the Issuer
will not issue or sell any bonds or obligations, other than the Bonds, the
principal of or premium, if any, or interest on which will be payable from this
Loan Agreement or the property described in the granting clauses of the
Indenture.
(j) The Project is being leased by the Issuer to the Company under the
Lease, this Loan Agreement is being executed in connection with the Issuer's
ownership of the Project, and the amounts payable by the Company under this Loan
Agreement are "revenues" within the meaning of the Act.
Section 2.2 Representations of Company. The Company represents as follows:
(a) The Company (i) is a general partnership duly organized under the laws
of the Commonwealth, (ii) has full power to own its properties and conduct its
business, (iii) has full power and authority to enter into and to consummate the
transactions contemplated by this Loan Agreement, the Assignment and the Fifth
Supplemental Lease, (iv) by proper action has duly authorized the execution and
delivery of this Loan Agreement, the Assignment and the Fifth Supplemental
Lease, and (v) had and continues to have full legal right, power and authority
to enter into and to consummate the transactions contemplated by the Lease.
(b) The execution and delivery by the Company of, and the consummation by
the Company of the transactions contemplated by, this Loan Agreement, the
Assignment or the Fifth Supplemental Lease will not conflict with, result in a
breach of or default under or result in the imposition of any lien on any
property of the Company pursuant to the terms, conditions or provisions of any
statute, order, rule, regulation, agreement or instrument to which the Company
is a party or by which it is bound.
(c) Each of this Loan Agreement, the Assignment and the Fifth Supplemental
Lease has been duly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights generally and subject to the
availability of equitable remedies.
(d) There is no litigation or proceeding pending, or to the knowledge of
the Company threatened, which could adversely affect the validity of this Loan
Agreement, the Assignment or the Lease or the ability of the Company to comply
with its obligations under them.
3
<PAGE>
(e) The information contained in all written information relating to the
Project and the Bonds provided by the Company to the Issuer and bond counsel for
the Bonds is true and correct in all material respects.
(f) The Project consists and will consist of the facilities described in
Exhibit A, and no changes will be made in the Project except as permitted by
Section 3.2.
ARTICLE III
COMPLETION OF THE PROJECT
Section 3.1 Project Complete. The acquisition and construction of the
Project has been completed as contemplated by the Lease.
Section 3.2 Project Use. The Company will not make any material change in
the intended use of the Project unless the Trustee and the Issuer receive an
Opinion of Tax Counsel to the effect that such change will not impair the
exclusion of interest on the Bonds from the gross income of the owners of the
Bonds for federal income tax purposes.
Section 3.3 Operation of Project. So long as the Company operates the
Project, it will operate it so as not to impair the exclusion of interest on the
Bonds from the gross income of the owners of the Bonds for federal income tax
purposes and so that the Project will constitute "port facilities" within the
meaning of the Act.
ARTICLE IV
ISSUANCE OF BONDS
Section 4.1 Issuance of Bonds. In order to refund the 1992 Bonds, the
Issuer will issue, sell and deliver the Bonds to their initial purchasers and
deposit the proceeds of the Bonds with the Trustee as provided in Article IV of
the Indenture. Such deposit will constitute a loan to the Company under this
Loan Agreement. In consideration for the refunding by the Issuer of the 1992
Bonds which relieves the Company of its obligation to pay an amount sufficient
to pay the 1992 Bonds, the Company agrees to make the payments required in
Section 5.1. The Issuer authorizes the Trustee to disburse the proceeds of the
Bonds in accordance with Section 4.1 of the Indenture. The Company approves the
Indenture and the issuance by the Issuer of the Bonds.
ARTICLE V
REPAYMENT OF LOAN
Section 5.1 Repayment of Loan and Payment of Purchase Price of Bonds. (a)
The Company will repay the loan made to it under Section 4.1 as follows: By
10:00 a.m. eastern time on each day on which any payment of principal of,
premium, if any, and interest on Bonds becomes due (whether at maturity, or upon
redemption or acceleration or otherwise), the Company will pay an amount which,
together with other moneys held by the Trustee under the Indenture and available
for such purpose, will enable the Trustee to make such payment in full in a
timely manner. If the Company defaults in any payment required by this Section,
the Company will pay interest (to the extent allowed by law) on such amount
until paid at the rate provided for in the Bonds.
4
<PAGE>
(b) The Company will pay to the Trustee, on each day on which a payment of
purchase price of a Bond which has been put or is to be purchased in lieu of
redemption becomes due, an amount which, together with other moneys held by the
Trustee under the Indenture and available for such purpose, will enable the
Trustee to make such payment in full in a timely manner.
(c) In furtherance of the foregoing, so long as any Bonds are outstanding
the Company will pay all amounts required to prevent any deficiency or default
in any payment of the Bonds, including any deficiency caused by an act or
failure to act by the Trustee, the Company, the Issuer, the Remarketing Agent or
any other person.
(d) All amounts payable under this Section by the Company are assigned by
the Issuer to the Trustee pursuant to the Indenture for the benefit of the
Bondholders. The Company consents to such assignment. Accordingly, the Company
will pay directly to the Trustee at its principal corporate trust office all
payments payable by the Company pursuant to this Section.
(e) The Company need not pay any amount paid to Bondholders by a draw on
any Letter of Credit. The Company will pay directly to the Bank, in accordance
with the reimbursement agreement pursuant to which such Letter of Credit was
issued, amounts owed with respect to Reimbursement Obligations.
(f) The Company will receive a credit against the amounts payable to the
Trustee under this Section for any amounts paid directly to the Trustee by
Pittston Coal Terminal Corporation pursuant to the Assignment or by the Parent
Company pursuant to the Parent Company Guaranty.
Section 5.2 Additional Payments. The Company will also pay the following
within 30 days after receipt of a written request for payment:
(a) The reasonable fees and expenses of the Issuer incurred in connection
with the execution and delivery of, and the performance of the Issuer's
obligations under, this Loan Agreement, the Indenture, the Bonds, and other
related documents to which the Issuer is a party, such fees and expenses to be
paid directly to the Issuer or as directed by it.
(b) The fees and expenses of the Trustee, any Paying Agent, the Remarketing
Agent and all other fiduciaries and agents serving under the Indenture
(including any expenses in connection with any redemption of the Bonds), and all
fees and expenses, including attorneys' fees, of the Trustee and any Paying
Agent for any extraordinary services rendered by them under the Indenture. All
such fees and expenses are to be paid directly to the Trustee, Paying Agent, the
Remarketing Agent or other fiduciary or agent for its own account as and when
such fees and expenses become due and payable.
5
<PAGE>
Section 5.3 Prepayments. The Company may at any time and from time to time
prepay to the Trustee all or any part of the amounts payable under Section 5.1.
A prepayment will not relieve the Company of its obligations under this Loan
Agreement until all the Bonds have been paid or provision for their payment made
in accordance with the Indenture. In the event of a mandatory redemption of the
Bonds, the Company will prepay all amounts necessary for such redemption.
Section 5.4 Assignment of Throughput Payments. Pursuant to the Assignment,
the Company will assign to the Issuer all of the Company's right, title and
interest in and to the payments to be made by Pittston Coal Terminal Corporation
with respect to the Bonds under Section 3.2(a)(ix) of the Throughput Agreement.
Section 5.5 Obligations of Company Unconditional. The obligations of the
Company to make the payments required by Sections 5.1 and 5.3 and to perform its
other agreements contained in this Loan Agreement are absolute and
unconditional. Until the principal of and interest on the Bonds have been fully
paid or provision for their payment made in accordance with the Indenture, the
Company (i) will not suspend or discontinue any payments provided for in Section
5.1, (ii) will perform all its other agreements in this Loan Agreement, and
(iii) will not terminate this Loan Agreement for any cause including any acts or
circumstances that may constitute failure of consideration, destruction of or
damage to the Project, commercial frustration of purpose, any change in the laws
of the United States or of the Commonwealth or any political subdivision of
either or any failure of the Issuer to perform any of its agreements, whether
express or implied, or any duty, liability or obligation arising from or
connected with this Loan Agreement.
ARTICLE VI
OTHER COMPANY AGREEMENTS
Section 6.1 Maintenance of Existence. The Company will maintain its
existence as a general partnership under the laws of the Commonwealth and will
not merge or consolidate with, or sell or otherwise transfer to another legal
entity all or substantially all of its assets as an entirety and/or dissolve
unless (i) there is a surviving, resulting or transferee legal entity organized
and existing under the laws of the United States, any state or the District of
Columbia, which is solvent and (if not the Company) assumes in writing all the
obligations of the Company under this Loan Agreement and (ii) the Company or the
surviving or transferee entity is not immediately after such merger,
consolidation or transfer in default in any material respect under this Loan
Agreement; provided, however, this will not be construed as prohibiting changes
in the ownership interests of the Partners in the Company.
Section 6.2 Payment of Taxes. The Company will pay all taxes and other
governmental charges and assessments, if any, that are levied, assessed or
imposed upon any interest of the Issuer or the Trustee in this Loan Agreement or
any payment received by or due to the Issuer or the Trustee (other than their
fees) pursuant to this Loan Agreement.
6
<PAGE>
Section 6.3 Arbitrage. The Company covenants with the Issuer and for and on
behalf of the purchasers and owners of the Bonds from time to time outstanding
that, so long as any of the Bonds remain outstanding, moneys on deposit in any
fund in connection with the Bonds, whether or not such moneys were derived from
the proceeds of the sale of the Bonds or from any other sources, will not be
used in a manner which will cause the Bonds to be "arbitrage bonds" within the
meaning of Section 148 of the Code, and any lawful regulations promulgated
thereunder, as they exist on this date, or may from time to time hereafter be
amended, supplemented or revised.
Section 6.4 Company's Obligation with Respect to Tax Exemption of Interest
Paid on the Bonds. Notwithstanding any other provision of this Loan Agreement,
the Company covenants and agrees that it will not knowingly take or authorize or
permit, to the extent such action is within its control, any action to be taken
with respect to the Project, or the proceeds of the Bonds (including investment
earnings), insurance, condemnation, or any other proceeds derived directly or
indirectly in connection with the Project, which will result in the loss of the
exclusion of interest on the Bonds from gross income for federal income tax
purposes under Section 103 of the Code (except for any Bond during any period
while it is held by a person referred to in Section 147(a) of the Code); and the
Company also will not knowingly omit to take any action in its power which, if
omitted, would cause the above result. The inclusion of interest on any Bond in
the computation of the alternative minimum tax imposed by Section 55 of the Code
or the branch profits tax on foreign corporations imposed by Section 884 of the
Code does not constitute a loss of the exclusion of interest on the Bonds from
gross income for federal income tax purposes under Section 103 of the Code
within the meaning of this Section. This provision will control in case of
conflict or ambiguity with any other provision of this Loan Agreement.
The Company covenants and agrees to notify the Trustee, the Issuer and, if
a Letter of Credit is in effect, the Bank of the occurrence of any event of
which the Company has notice which would require the Company to prepay the
amounts due under this Loan Agreement because of a redemption resulting from a
determination of taxability.
The Company, at its sole expense, will take all steps necessary to cause
the requirements of Section 148(f) of the Code to be satisfied with respect to
the Bonds, including, but not limited to, all reporting and rebate requirements,
and will, upon request, provide the Trustee with evidence of such compliance.
Section 6.5 Issuer Fees and Expenses. The Company shall pay to or on behalf
of the Issuer, its reasonable costs and expenses incurred or to be paid by the
Issuer directly related to the issuance and delivery of the Bonds, the refunding
of the 1992 Bonds and the performance of its duties and responsibilities
pursuant to this Loan Agreement, the Indenture or other documents or instruments
by which it is bound in connection therewith, including the fees of its counsel
and other advisors and the reasonable administrative fees of the Issuer, which
Issuer fees consist of an application fee of $1,000, a special meeting fee of
$700, a one-time closing fee of $200 and a one-time administrative fee of
$37,830.
7
<PAGE>
ARTICLE VII
NO RECOURSE TO ISSUER; INDEMNIFICATION
Section 7.1 No Recourse to Issuer. The Bonds will at all times constitute
special, limited obligations of the Issuer. The Issuer will not be obligated to
pay the Bonds except from revenues provided by the Company. The issuance of the
Bonds will not directly or indirectly or contingently obligate the Issuer, the
Commonwealth or any of its political subdivisions to levy or pledge any form of
taxation whatever or to make any appropriation for their payment. Neither the
Issuer nor any commissioner or officer of the Issuer nor any person executing
the Bonds will be liable personally for the Bonds or be subject to any personal
liability or accountability by reason of the issuance of the Bonds.
Section 7.2 Indemnification. The Company will, at its expense, indemnify
and save harmless the Issuer and its commissioners, officers, employees and
agents against and from any and all claims, damages, demands, expenses,
liabilities and losses of every kind asserted by or on behalf of any person,
firm, corporation or governmental authority arising out of, resulting from or in
any way connected with the condition, use, possession, conduct, management,
planning, design, acquisition, construction, installation or financing of the
Project. The Company will also, at its expense, indemnify and save harmless the
Issuer against and from all costs, reasonable counsel fees, expenses and
liabilities incurred in any action or proceeding brought by reason of any such
claim or demand. If any proceeding is brought against the Issuer by reason of
any such claim or demand, the Company will, upon written notice from the Issuer,
defend such proceeding on behalf of the Issuer. Notwithstanding the foregoing,
the Company will not be obligated to indemnify the Issuer or any of its
commissioners, officers, employees or agents or hold any of them harmless
against or from or in respect of any claim, damage, demand, expense, liability
or loss arising from the intentional or willful misconduct or gross negligence
of the Issuer or any of its commissioners, officers, employees or agents or any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact describing the Issuer in any official
statement or preliminary official statement relating to the Bonds.
The Company agrees upon the terms and conditions and subject to the
limitations set forth in this Loan Agreement, including the limitation on the
liability of the Partners in Section 10.11, to indemnify the Trustee and the
Paying Agent for, and to hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on their part, arising out of
or in connection with the acceptance or administration of the trust created by
the Indenture, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of any of
their powers or duties under this Loan Agreement.
ARTICLE VIII
ASSIGNMENT
Section 8.1 Assignment by Company. The Company may assign its rights and
obligations under this Loan Agreement without the consent of either the Issuer
or the Trustee, but, except as provided in Section 6.1, no assignment will
relieve the Company from primary liability for any obligations under this Loan
Agreement.
8
<PAGE>
Section 8.2 Assignment by Issuer. The Issuer will assign its rights under
and interest in this Loan Agreement (except for the Unassigned Rights) to the
Trustee pursuant to the Indenture, it being understood and agreed that such
assignment will be an absolute assignment, but without recourse to or
representation by the Issuer. Otherwise, the Issuer will not sell, assign or
otherwise dispose of its rights under or interest in this Loan Agreement nor
create or permit to exist any lien, encumbrance or other security interest in or
on such rights or interest.
ARTICLE IX
DEFAULTS AND REMEDIES
Section 9.1 Remedies on Default. Whenever any Event of Default under the
Indenture has occurred and is continuing, the Trustee may take whatever action
may appear necessary or desirable to collect the payments then due and to become
due or to enforce performance of any agreement of the Company in this Loan
Agreement.
In addition, if an Event of Default under the Indenture has occurred and is
continuing with respect to any of the Unassigned Rights, the Issuer may take
whatever action may appear necessary or desirable to it to enforce performance
by the Company of such Unassigned Rights.
Any amounts collected pursuant to action taken under this Section (except
for amounts payable directly to or on behalf of the Issuer or the Trustee
pursuant to Sections 5.2, 7.2 and 9.3) will be applied in accordance with the
Indenture.
Nothing in this Loan Agreement will be construed to permit the Issuer, the
Trustee or any Bondholder or any receiver in any proceeding brought under the
Indenture to take possession or use of or exclude the Company from possession or
use of the Project by reason of the occurrence of an Event of Default.
Section 9.2 Delay Not Waiver; Remedies. A delay or omission by the Issuer
or the Trustee in exercising any right or remedy accruing upon an Event of
Default will not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 9.3 Attorneys' Fees and Expenses. If the Company should default
under any provision of this Loan Agreement and the Issuer should employ
attorneys or incur other expenses for the collection of the payments due under
this Loan Agreement, the Company will on demand pay to the Issuer or as directed
by it the reasonable fees of such attorneys and such other reasonable expenses
so incurred by the Issuer.
9
<PAGE>
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices. All notices or other communications under this Loan
Agreement will be sufficiently given and will be deemed given when delivered or
mailed as provided in the Indenture.
Section 10.2 Binding Effect. This Loan Agreement will inure to the benefit
of and will be binding upon the Issuer, the Company and their respective
successors and assigns, subject, however, to the limitations contained in
Section 6.1.
Section 10.3 Severability. If any provision of this Loan Agreement is
determined to be unenforceable at any time, that will not affect any other
provision of this Loan Agreement or the enforceability of that provision at any
other time.
Section 10.4 Amendments. After the issuance of the Bonds, this Loan
Agreement may not be effectively amended or terminated without the written
consent of the Trustee and, if a Letter of Credit is in effect, the Bank and in
accordance with the provisions of the Indenture.
Section 10.5 Right of Company To Perform Issuer's Agreements. The Issuer
irrevocably authorizes and empowers the Company to perform in the name and on
behalf of the Issuer any agreement made by the Issuer in this Loan Agreement or
in the Indenture which the Issuer fails to perform in a timely fashion if the
continuance of such failure could result in an Event of Default. This Section
will not require the Company to perform any agreement of the Issuer.
Section 10.6 Applicable Law. This Loan Agreement will be governed by and
construed in accordance with the laws of the Commonwealth.
Section 10.7 Captions; References to Sections. The captions in this Loan
Agreement are for convenience only and do not define or limit the scope or
intent of any provisions or Sections of this Loan Agreement. References to
Articles and Sections are to the Articles and Sections of this Loan Agreement,
unless the context otherwise requires.
Section 10.8 Complete Agreement. This Loan Agreement represents the entire
agreement between the Issuer and the Company with respect to its subject matter.
Section 10.9 Termination. When no Bonds are Outstanding under the
Indenture, the Company and the Issuer will have no further obligations under
this Loan Agreement, except for the Company's obligations under Sections 5.2,
6.3, 6.4, 7.2 and 9.3.
Section 10.10 Counterparts. This Loan Agreement may be signed in several
counterparts. Each will be an original, but all of them together constitute the
same instrument.
10
<PAGE>
Section 10.11 Limitation of Liability. Notwithstanding anything to the
contrary provided in this Loan Agreement or the Indenture, each and every term,
covenant, condition and provision of this Loan Agreement is made specifically
subject to the provisions of this Section 10.11. It is specifically understood
and agreed that the liability of the Company is limited to the Company's
interest in the obligations of Pittston Coal Terminal Corporation to make
payments with respect to the Bonds under Section 3.2(a)(ix) of the Throughput
Agreement and is payable solely from those payments and collateral, if any,
specifically pledged for such purpose.
Any liability or obligation of the Company arising out of or from this Loan
Agreement will be a liability or obligation of and enforceable against the
Company only and will not be a liability or obligation of or enforceable against
any Partner of the Company individually or in its capacity as a partner.
Section 10.12 Limited Nature of Company's Obligations; Pittston Terminal's
Liability for Obligations of the Company; Certain Decisions Regarding the Bonds.
As provided in the Throughput Agreement and the Agreement Regarding 2003 Brink's
Bonds, dated as of August 15, 2003, among the Company, the Partners and Pittston
Terminal, all of the Company's obligations with respect to the Bonds are payable
solely from payments received by the Company from Pittston Terminal pursuant to
the Throughput Agreement and Pittston Terminal shall act as the agent of the
Company for purposes of making certain Company decisions relating to the Bonds.
11
<PAGE>
PENINSULA PORTS AUTHORITY OF
VIRGINIA
By: /s/ Robert E. Yancey
-----------------------------------------
Chairman
DOMINION TERMINAL ASSOCIATES,
a General Partnership
By: /s/ Charles E. Brinley
-----------------------------------------
President
12
<PAGE>
EXHIBIT A
DESCRIPTION OF FACILITIES
-------------------------
The Dominion Terminal Associates coal facility is sized to have an annual
throughput of approximately 20 million tons per year. A total ground storage
capacity of approximately 1.5 million tons is available. The terminal pier and
loading facilities are designed to handle colliers ranging in size from 20,000
to 173,000 dwt. and barges of varying sizes.
The land on which the facility is located is on the east bank of the James
River in Newport News, Virginia. It is bordered on the northwest by the Pier IX
coal terminal and on the southeast by the CSX Piers 14 and 15 properties which
are now limited in use, the primary business of Piers 14 and 15 appearing to be
the leasing of the piers.
The deep water channel, approximately 50 feet deep, borders the site. Road
access to the facility is from Harbor Road, which borders the south side of the
terminal site.
1. Railroad Service. The coal terminal facility is served by CSX
Transportation, Inc. CSX brings loaded cars to the empty tracks. DTA moves the
loaded cars from the empty tracks into position for dumping and then moves the
cars back to the empty tracks.
2. Material Handling System. The material handling system is designed so
that coal may be unloaded from the railroad hopper cars and transported by
conveyor directly to the shiploader for depositing in the holds of vessels.
However, most of the coal received is transported to one or two
stacker/reclaimers for deposit on the ground storage piles.
An enclosed tandem rotary car dumper is used to unload the hopper cars
two at a time. The coal deposited in the hoppers beneath the dumper passes
through a grizzly which prevents large foreign material from entering and
damaging the belt conveying system. Just prior to dumping, the rail cars pass
through a thaw shed which assists in unloading during freezing weather.
Vibrating feeders transfer the coal from the receiving hoppers to the
conveyor belts and place it on conveyor belts for elevation up above grade to a
1,000-ton surge silo. The surge silo is used to increase unloading efficiency by
allowing the coal to accumulate while the stacker/reclaimer is moving from one
stockpile to another. A three-stage "as received" sampling system is provided at
the 1,000-ton storage silo.
While the unloading system is in operation, coal received may be
diverted directly to waiting colliers or barges or transferred to either of two
stacker/reclaimers for stacking in stockpiles. The design rate for the receiving
material handling system is 5,200 tons/hr.
A-1
<PAGE>
The reclaim system provides for reclaiming coal with either or both
stacker/reclaimers and a reclaimer, then conveying it to two-4,000 ton surge
silos located near the pier. Reclaim from these surge silos goes directly to the
pier-mounted shiploader for loading into the holds of coal carriers. When
blending two different types of coal is required, the proper percentage of each
is withdrawn from each silo. An "As Shipped" sampling system is located at the
tail end of the conveyor leading to the shiploader.
Belt scales are provided for both the unloading system and the
shiploading system to provide the necessary information for managing the coal
stockpiles, blending and as a check against the draft surveyor's measurement for
the coal being loaded in vessels. The design rate for the reclaim handling
system is 6,800 tons/hr. The shiploader and dock conveyor is rated at 6,500
tons/hr. The higher capacity takes into account shiploader shutdowns for hatch
changes.
3. Marine Facilities. The marine facilities include a dredge deep-water
basin and shiploader pier.
The dredging provides access and berthing areas at the pier which
extends towards shore from the Corps of Engineers' pierhead line. An area on the
south side of the pier has been dredged to a depth of 50 feet to match the
existing channel. The north side of the pier can be dredged to a depth of 50
feet if so necessitated by an increase in business.
The shiploader dock is designed as a finger pier with a berth on each
side for loading colliers up to 173,000 dwt. It is provided with a trestle
connection to shore. The pier supports the shiploading conveyor and shiploader,
plus a roadway with a turnaround area at the offshore end. Both faces of the
pier are provided with a fendering system. A turning dolphin has been
constructed at the outer end, connected by a walkway to the pier.
4. Mobile Equipment. Mobile equipment is used for maintenance and operation
of the coal terminal facility. Switch engines are used to move trains while
dozers are needed to assist the bucket wheel stackers and reclaimers in storing
and reclaiming coal outside their reach. The following types of mobile equipment
are provided for the facility:
a. Track-mounted dozers with coal blades;
b. Switch Engines;
c. Mobile cranes;
d. Flat-bed trucks;
e. Pickup trucks;
f. Automobiles;
g. Maintenance vehicles; and
h. Front-end loader.
A-2
<PAGE>
5. Control Stations. The rotary dumper and the receiving hopper vibrating
feeders have a separate control panel located in the dumper building. The
shiploader and stacker/reclaimers and reclaimer are controlled from cabs mounted
as part of their construction. The systems of conveyors leading to and from yard
storage are controlled from a central control room atop transfer tower TT2 or
from other computer sites. The shiploader and the vibrating feeders under the
two 4,000-ton shiploader surge silos are controlled by an operator in the cab of
the shiploader.
6. Auxiliary Buildings. The following auxiliary buildings are provided for
the coal terminal operation:
a. Administration building including a locker room;
b. Repair shop and warehouse;
c. A series of small buildings to house electrical equipment;
d. A series of small buildings to house pumping equipment; and
e. A maintenance building.
7. Utilities and Communications. Industrial and potable water is available
at the coal terminal site. This water is delivered by underground pipelines to
the areas requiring its use.
A fuel storage and distribution system is provided. Fuel tanks of
sufficient capacity store diesel oil and gasoline for use by mobile equipment or
building heating systems. Electricity is provided to the facility from a main
substation located near the property boundary. A complete distribution system is
included to carry electric power to all facilities. The sewage collected from
the various auxiliary buildings is delivered to a nearby existing manhole
located near Pier 14. The sewage is then directed to the Newport News Treatment
Plant.
The facilities have a communications system, including telephones
located in critical locations and a radio system for communications between
operators at the various control stations.
8. Pollution Control Equipment. A full complement of pollution control
equipment was installed for the facility, as required by the owner-obtained
environmental permits. This includes a combination of water sprays and
baghouse-type dust collectors located at critical facility dust emission points.
A-3