Exhibit 4.5
$100,000,000 TERM LOAN FACILITY
CREDIT AGREEMENT
by and among
ARCH WESTERN RESOURCES, LLC
and
THE LENDERS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION,
as Agent
Dated as of September 19, 2003
================================================================================
PNC CAPITAL MARKETS, INC.,
as Lead Arranger and Bookrunner
1. CERTAIN DEFINITIONS......................................................................................1
1.1 Certain Definitions.............................................................................1
1.2 Construction...................................................................................27
1.2.1 Number; Inclusion.....................................................................27
1.2.2 Determination.........................................................................27
1.2.3 Agent's Discretion and Consent........................................................27
1.2.4 Documents Taken as a Whole............................................................27
1.2.5 Headings..............................................................................27
1.2.6 Implied References to This Agreement..................................................27
1.2.7 Persons.............................................................................. 27
1.2.8 Modifications to Documents............................................................28
1.2.9 From, To and Through..................................................................28
1.2.10 Shall; Will...........................................................................28
1.3 Accounting Principles..........................................................................28
2. TERM LOAN FACILITY......................................................................................28
2.1 Commitments....................................................................................28
2.1.1 Borrowing Date Commitments............................................................28
2.1.2 Commitment Fee........................................................................29
2.2 Nature of Lenders' Obligations with Respect to Term Loans......................................29
2.3 Noteless Agreement; Evidence of Indebtedness...................................................29
2.4 Use of Proceeds................................................................................30
2.5 Borrowing Date Procedure and Request to Select Interest Rate Options...........................30
2.6 Required Payments..............................................................................30
3. INTEREST RATES..........................................................................................31
3.1 Interest Rate Options..........................................................................31
3.1.1 Interest Rate Options.................................................................31
3.1.2 Rate Quotations.......................................................................32
3.2 Interest Periods...............................................................................32
3.2.1 Ending Date and Business Day..........................................................32
3.2.2 Amount of Borrowing Tranche...........................................................32
3.2.3 Termination Before Expiration Date....................................................32
3.2.4 Renewals..............................................................................32
3.3 Interest After Default.........................................................................32
3.3.1 Interest Rate.........................................................................33
3.3.2 Other Obligations.....................................................................33
3.3.3 Acknowledgment........................................................................33
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.................33
3.4.1 Unascertainable.......................................................................33
3.4.2 Illegality; Increased Costs; Deposits Not Available...................................33
3.4.3 Agent's and Lender's Rights...........................................................34
3.5 Selection of Interest Rate Options.............................................................34
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4. PAYMENTS................................................................................................35
4.1 Payments.......................................................................................35
4.2 Pro Rata Treatment of Lenders..................................................................35
4.3 Interest Payment Dates.........................................................................35
4.4 Voluntary Prepayments..........................................................................36
4.4.1 Right to Prepay.......................................................................36
4.4.2 Replacement of a Lender...............................................................37
4.4.3 Change of Lending Office..............................................................37
4.5 Mandatory Prepayments..........................................................................38
4.5.1 Sale of Assets........................................................................38
4.5.2 Issuance of Certain Debt; Issuance of Equity or Hybrid Securities.....................38
4.5.3 Application Among Interest Rate Options...............................................38
4.6 Additional Compensation in Certain Circumstances...............................................38
4.6.1 Increased Costs or Reduced Return Resulting From Taxes, Reserves, Capital
Adequacy Requirements, Expenses, Etc..................................................38
4.6.2 Indemnity.............................................................................39
4.7 Taxes..........................................................................................40
4.7.1 No Deductions.........................................................................40
4.7.2 Stamp Taxes...........................................................................40
4.7.3 Indemnification for Taxes Paid by Lenders.............................................40
4.7.4 Certificate...........................................................................41
4.7.5 Survival..............................................................................41
4.7.6 Refund and Contest....................................................................41
5. REPRESENTATIONS AND WARRANTIES..........................................................................41
5.1 Representations and Warranties.................................................................41
5.1.1 Organization and Qualification........................................................41
5.1.2 LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares........................42
5.1.3 Power and Authority...................................................................42
5.1.4 Validity and Binding Effect...........................................................43
5.1.5 No Conflict...........................................................................43
5.1.6 Litigation............................................................................44
5.1.7 Financial Statements..................................................................44
5.1.8 Use of Proceeds; Margin Stock.........................................................44
5.1.9 Full Disclosure.......................................................................45
5.1.10 Taxes.................................................................................45
5.1.11 Consents and Approvals................................................................45
5.1.12 No Event of Default; Compliance With Instruments and Material Contracts...............46
5.1.13 Insurance.............................................................................46
5.1.14 Compliance With Laws..................................................................46
5.1.15 Investment Companies; Regulated Entities..............................................47
5.1.16 Plans and Benefit Arrangements........................................................47
5.1.17 Employment Matters....................................................................48
5.1.18 Environmental Matters.................................................................48
5.1.19 Senior Debt Status....................................................................48
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5.1.20 Title to Properties...................................................................49
5.1.21 Security Interests....................................................................49
5.1.22 Coastal Agreement.....................................................................49
5.1.23 Solvency..............................................................................49
5.1.24 Anti-Terrorism Laws...................................................................49
5.1.25 Patents, Trademarks, Copyrights, Licenses, Etc........................................50
6. CONDITIONS OF LENDING...................................................................................51
6.1 Conditions to Closing..........................................................................51
6.1.1 Officer's Certificate.................................................................51
6.1.2 Secretary's Certificate...............................................................51
6.1.3 Delivery of Loan Documents............................................................52
6.1.4 Opinion of Counsel....................................................................52
6.1.5 Legal Details.........................................................................52
6.1.6 Payment of Fees.......................................................................52
6.1.7 Consents..............................................................................52
6.1.8 Officer's Certificate Regarding No Material Adverse Change............................52
6.1.9 No Violation of Laws..................................................................53
6.1.10 No Actions or Proceedings.............................................................53
6.1.11 Insurance.............................................................................53
6.1.12 Satisfactory Environmental Review.....................................................53
6.1.13 UCC, Lien and Judgment Searches.......................................................53
6.1.14 Filing Receipts.......................................................................53
6.2 Conditions to Borrowing........................................................................53
6.2.1 Officer's Certificate.................................................................54
6.2.2 Secretary's Certificate...............................................................54
6.2.3 Delivery of Loan Documents............................................................54
6.2.4 Opinion of Counsel....................................................................55
6.2.5 Legal Details.........................................................................55
6.2.6 Payment of Fees.......................................................................55
6.2.7 Consents..............................................................................55
6.2.8 Officer's Certificate Regarding No Material Adverse Change............................55
6.2.9 No Violation of Laws..................................................................56
6.2.10 No Actions or Proceedings.............................................................56
6.2.11 Insurance.............................................................................56
6.2.12 UCC, Lien and Judgment Searches.......................................................56
6.2.13 Filing Receipts.......................................................................56
6.2.14 Consummation of Vulcan Acquisition and North ▇▇▇▇▇▇▇▇ Contribution....................57
6.2.15 Borrowings on Borrowing Date..........................................................58
6.2.16 Confirmation of Loan Documents........................................................58
6.2.17 Amended and Restated Schedules........................................................58
6.2.18 North ▇▇▇▇▇▇▇▇ EBITDDA................................................................58
7. COVENANTS...............................................................................................59
7.1 Affirmative Covenants..........................................................................59
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7.1.1 Preservation of Existence, Etc........................................................59
7.1.2 Payment of Liabilities, Including Taxes, Etc..........................................59
7.1.3 Maintenance of Insurance..............................................................59
7.1.4 Maintenance of Properties.............................................................60
7.1.5 Visitation Rights.....................................................................60
7.1.6 Keeping of Records and Books of Account...............................................60
7.1.7 Plans and Benefit Arrangements........................................................60
7.1.8 Compliance With Laws..................................................................61
7.1.9 Use of Proceeds.......................................................................61
7.1.10 Operation of Mines....................................................................61
7.1.11 Maintenance of Material Contracts.....................................................61
7.1.12 Further Assurances....................................................................62
7.1.13 Tax Shelter Regulations...............................................................62
7.1.14 Anti-Terrorism Laws...................................................................62
7.2 Negative Covenants.............................................................................62
7.2.1 Indebtedness..........................................................................62
7.2.2 Liens. .............................................................................63
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions...................................63
7.2.4 Dispositions of Assets or Subsidiaries................................................64
7.2.5 Affiliate Transactions................................................................65
7.2.6 Subsidiaries, Partnerships and Joint Ventures.........................................65
7.2.7 Continuation of or Change in Business.................................................66
7.2.8 Plans and Benefit Arrangements........................................................66
7.2.9 No Restriction on Dividends...........................................................66
7.2.10 Maximum Leverage Ratio................................................................66
7.2.11 Minimum Fixed Charge Coverage Ratio...................................................67
7.2.12 Minimum Net Worth.....................................................................67
7.2.13 Loans and Investments.................................................................67
7.2.14 Amendments to Acquisition Documents, Vulcan Acquisition Documents or North
▇▇▇▇▇▇▇▇ Contribution Documents.......................................................68
7.2.15 Off-Balance Sheet Financing and Capital Leases........................................68
7.3 Reporting Requirements.........................................................................69
7.3.1 Quarterly Financial Statements........................................................69
7.3.2 Annual Financial Statements...........................................................69
7.3.3 Certificate of the Borrower...........................................................70
7.3.4 Notice of Default.....................................................................70
7.3.5 Notice of Litigation..................................................................70
7.3.6 Notice of Change in Debt Rating.......................................................70
7.3.7 Notices Regarding Plans and Benefit Arrangements......................................71
7.3.8 Other Information.....................................................................72
7.3.9 Tax Shelter Provisions................................................................72
8. DEFAULT.................................................................................................73
8.1 Events of Default..............................................................................73
8.1.1 Payments Under Loan Documents.........................................................73
8.1.2 Breach of Warranty....................................................................73
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8.1.3 Breach of Negative Covenants or Visitation Rights.....................................73
8.1.4 Breach of Other Covenants.............................................................73
8.1.5 Defaults in Other Agreements or Indebtedness..........................................74
8.1.6 Judgments or Orders...................................................................74
8.1.7 Loan Document Unenforceable...........................................................74
8.1.8 Proceedings Against Assets............................................................74
8.1.9 Notice of Lien or Assessment..........................................................75
8.1.10 Insolvency............................................................................75
8.1.11 Events Relating to Plans and Benefit Arrangements.....................................75
8.1.12 Cessation of Business.................................................................75
8.1.13 Change of Control.....................................................................76
8.1.14 Involuntary Proceedings...............................................................76
8.1.15 Voluntary Proceedings.................................................................76
8.2 Consequences of Event of Default...............................................................76
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization
Proceedings...........................................................................76
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings..................................77
8.2.3 Set-off...............................................................................77
8.2.4 Suits, Actions, Proceedings...........................................................78
8.2.5 Application of Proceeds...............................................................78
8.2.6 Other Rights and Remedies.............................................................78
8.2.7 Notice of Sale........................................................................79
9. THE AGENT...............................................................................................79
9.1 Appointment....................................................................................79
9.2 Delegation of Duties...........................................................................79
9.3 Nature of Duties; Independent Credit Investigation.............................................79
9.4 Actions in Discretion of Agent; Instructions From the Lenders..................................80
9.5 Reimbursement and Indemnification of Agent by the Borrower.....................................80
9.6 Exculpatory Provisions; Limitation of Liability................................................81
9.7 Reimbursement and Indemnification of Agent by the Lenders......................................82
9.8 Reliance by Agent..............................................................................82
9.9 Notice of Default..............................................................................82
9.10 Notices........................................................................................82
9.11 Lenders in Their Individual Capacities.........................................................83
9.12 Holders of Term Notes..........................................................................83
9.13 Equalization of Lenders........................................................................83
9.14 Successor Agent................................................................................84
9.15 Agent's Fee....................................................................................84
9.16 Availability of Funds..........................................................................84
9.17 Calculations...................................................................................85
9.18 Certain Releases of Guarantors and Collateral..................................................85
9.19 Beneficiaries..................................................................................85
9.20 No Reliance on Agent's Customer Identification Program.........................................85
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10. MISCELLANEOUS...........................................................................................86
10.1 Modifications, Amendments or Waivers...........................................................86
10.1.1 Increase of Commitments; Extension of Expiration Date.................................86
10.1.2 Extension of Payment; Reduction of Principal, Interest or Fees;
Modification of Terms of Payment......................................................86
10.1.3 Release of Collateral or Guarantor....................................................86
10.1.4 Miscellaneous.........................................................................86
10.2 No Implied Waivers; Cumulative Remedies; Writing Required......................................87
10.3 Reimbursement and Indemnification of Lenders by the Borrower; Taxes.
Limitations....................................................................................87
10.4 Holidays.......................................................................................88
10.5 Funding by Branch, Subsidiary or Affiliate.....................................................89
10.5.1 Notional Funding......................................................................89
10.5.2 Actual Funding........................................................................89
10.6 Notices........................................................................................89
10.7 Severability...................................................................................90
10.8 Governing Law..................................................................................90
10.9 Prior Understanding............................................................................90
10.10 Duration; Survival.............................................................................90
10.11 Successors and Assigns.........................................................................91
10.11.1 Binding Effect; Assignments by Borrower...............................................91
10.11.2 Assignments and Participations by Lenders; Designations...............................91
10.11.3 Non-U.S. Assignees and Participants...................................................93
10.11.4 Assignments by Lenders to Federal Reserve Banks.......................................93
10.12 Confidentiality................................................................................94
10.12.1 General...............................................................................94
10.12.2 Sharing Information With Affiliates of the Lenders....................................95
10.13 Counterparts...................................................................................95
10.14 Agent's or Lender's Consent....................................................................95
10.15 Exceptions.....................................................................................95
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.........................................................95
10.17 Certifications From Lenders and Participants...................................................96
10.17.1 Tax Withholding.......................................................................96
10.17.2 USA Patriot Act.......................................................................97
10.18 Requirements for Significant Subsidiaries......................................................97
10.19 Register.......................................................................................97
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(B) - COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
SCHEDULE 1.1(N) - NORTH ▇▇▇▇▇▇▇▇ ASSETS TO BE CONTRIBUTED;
NORTH ▇▇▇▇▇▇▇▇ ASSUMED LIABILITIES
SCHEDULE 5.1.2 - CERTAIN INFORMATION REGARDING CAPITALIZATION OF
BORROWER AND ITS SUBSIDIARIES
SCHEDULE 5.1.7 - CERTAIN DISCLOSURES REGARDING FINANCIAL STATEMENTS
SCHEDULE 5.1.11 - CONSENTS AND APPROVALS
SCHEDULE 5.1.18 - CERTAIN DISCLOSURES REGARDING ENVIRONMENTAL MATTERS
SCHEDULE 5.1.25 - PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
SCHEDULE 7.2.6 - CERTAIN MATTERS REGARDING SUBSIDIARIES, PARTNERSHIPS
AND JOINT VENTURES
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(C) - COLLATERAL TRUST AGREEMENT
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER AND ASSUMPTION
EXHIBIT 1.1(G)(2) - CONTINUING GUARANTY AND SURETYSHIP AGREEMENT
EXHIBIT 1.1(N) - NOTE PLEDGE AGREEMENT
EXHIBIT 1.1(T) - TERM NOTE
EXHIBIT 2.5 - RATE REQUEST
EXHIBIT 6.1.4 - OPINION OF COUNSEL (CLOSING DATE)
EXHIBIT 6.2.4 - OPINION OF COUNSEL (BORROWING DATE)
EXHIBIT 7.3.3 - QUARTERLY COMPLIANCE CERTIFICATE
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of September 19, 2003 and is made by
and among ARCH WESTERN RESOURCES, LLC, a Delaware limited liability company (the
"Borrower"), the LENDERS (as hereinafter defined) and PNC BANK, NATIONAL
ASSOCIATION, in its capacity as administrative agent for the Lenders under this
Agreement.
WITNESSETH:
WHEREAS, the Borrower has requested the Lenders to provide a
$100,000,000 term loan facility to be used for the Borrower's general corporate
purposes, including to make loans or advances to Arch Coal, Inc.; and
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 the foregoing
and the mutual covenants and agreements hereinafter set forth and intending to
be legally bound hereby, covenant and agree as follows:
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:
Acquisition Documents shall mean collectively the Purchase
Agreement, the Contribution Agreement, the Tax Sharing Agreement, and the LLC
Agreements, as limited by their schedules and exhibits, as the same may be
amended, restated, modified or supplemented from time to time after the Closing
Date as permitted by Section 7.2.14 [Amendments to Acquisition Documents, etc.].
Acquisition Transactions shall mean the transactions
contemplated by the Purchase Agreement and the Contribution Agreement, as such
documents may be amended, modified or supplemented after the Closing Date as
permitted by Section 7.2.14 [Amendments to Acquisition Documents, etc.].
Affiliate as to any Person shall mean any other Person (i)
which directly or indirectly controls, is controlled by, or is under common
control with such Person, (ii) which beneficially owns or holds 5% or more of
any class of the voting or other equity interests of such Person, or (iii) 5% or
more of any class of voting interests or other equity interests of which is
beneficially owned or held, directly or indirectly, by such Person. 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
1
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.
Agent shall mean PNC Bank, National Association, in its
capacity as administrative agent for the Lenders under this Agreement and its
successor in such capacity.
Agent's Fee shall have the meaning assigned to that term in
Section 9.15 [Agent's Fee].
Agreement shall mean this Credit Agreement (including all
schedules and exhibits), as the same may hereafter be modified, amended,
restated, supplemented, refinanced or replaced from time to time in accordance
herewith.
Anti-Terrorism Laws shall mean any Laws relating to terrorism
or money laundering, including Executive Order No. 13224, and the USA Patriot
Act.
Appropriate Percentage shall mean, with respect to each
Special Subsidiary, the percentage of the equity of such Person owned by the
Borrower or any Subsidiary of the Borrower.
Approved Fund shall mean with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in commercial loans
and is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
Arch Coal Group shall mean the Parent and its Subsidiaries,
other than any Subsidiary of the Parent which is part of the Arch Western Group.
Arch of Wyoming LLC shall mean Arch of Wyoming, LLC, a limited
liability company organized and existing under the laws of the State of
Delaware.
Arch of Wyoming LLC Agreement shall mean that certain Limited
Liability Agreement, dated as of April 15, 1998, of Arch of Wyoming LLC.
Arch Western Credit Facility (1998) shall mean that certain
Credit Agreement by and among the Borrower, PNC Bank, as administrative agent,
and JPMorgan Chase Bank (successor in such capacity to ▇▇▇▇▇▇ Guaranty Trust
Company of New York), as syndication agent, providing for a $675,000,000 term
loan facility to the Borrower, dated as of June 1, 1998, as amended and restated
through and including the Restatement Effective Date.
Arch Western Group shall mean, as of any date of
determination, the Borrower and the Subsidiaries of the Borrower.
Arch Western LLC Agreement shall mean that certain Limited
Liability Company Agreement by and between AWAC and Delta Housing, dated as of
June 1, 1998, with AWAC and Delta Housing as members and creating the Borrower.
ARCO shall mean Atlantic Richfield Company, a corporation
organized and existing under the laws of the State of Delaware.
2
ARCO Member shall have the meaning assigned to such term in
the Arch Western LLC Agreement.
Assignment and Assumption Agreement shall mean an Assignment
and Assumption Agreement by and among a Purchasing Lender, a Transferor Lender
and the Agent, as agent and on behalf of the remaining Lenders, substantially in
the form of Exhibit 1.1(A).
Authorized Officer shall mean those individuals, designated by
written notice to the 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 Agent.
AWAC shall mean Arch Western Acquisition Corporation, a
corporation organized and existing under the laws of the State of Delaware.
AWR Derivatives Obligations Adjustment shall mean, for any
period of determination, the actual aggregate amount of all charges (including
in such aggregate amount the amount of all charges treated under GAAP as
one-time expense items and all charges treated under GAAP as amortized
expenses), as determined for the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, to consolidated net income of the Borrower and
its Subsidiaries during such period, which charges are attributable to certain
Derivatives Obligations (which Derivative Obligations previously provided
interest rate protection for the Arch Western Credit Facility (1998)) and which
will no longer qualify for hedge accounting treatment in accordance with GAAP
under FASB 133 upon the refinancing of the loans under the Arch Western Credit
Facility (1998) with the proceeds of the issuance of the AWR Senior Notes.
AWR Financing Fee Adjustment shall mean the lesser of (y)
$5,000,000, and (z) the actual amount of fees and expenses (the "Designated
Fees"), as determined for the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, deducted from consolidated net income of the
Borrower and its Subsidiaries during the fiscal quarter of the Borrower when the
AWR Senior Notes are issued by the Borrower or a Subsidiary of the Borrower,
which Designated Fees were incurred as part of the customary transaction closing
costs in connection with the closing of the Arch Western Credit Facility (1998)
and which were required to be capitalized in accordance with GAAP and, as of the
date of issuance of the AWR Senior Notes, which Designated Fees are required in
accordance with GAAP to be deducted as an expense and are no longer permitted to
be capitalized under GAAP.
AWR Senior Notes shall mean the 6 3/4% senior notes of the
Borrower or a Subsidiary of the Borrower due 2013 which are issued pursuant to
the AWR Senior Notes Indenture and that meet all of the requirements of and
constitute Permitted Additional AWR Indebtedness.
AWR Senior Notes Indenture shall mean the indenture, governing
the AWR Senior Notes, as in effect on the date of this Agreement and without
regard to any restatement, amendment, modification or supplement thereof after
the Closing Date.
Base Net Worth shall mean the sum of (i) $371,884,000, plus
(ii) 50% of consolidated net income of the Borrower and its Subsidiaries (with
consolidated net income
3
determined, without duplication: (1) before the after-tax effect of changes in
accounting principles, and (2) without regard to the effect, without
duplication, of the AWR Derivatives Obligations Adjustment or the effect of the
AWR Financing Fee Adjustment) for each fiscal quarter in which net income was
earned commencing with the fiscal quarter ending September 30, 2003, plus (iii)
100% of the net increase in Consolidated Tangible Net Worth resulting from the
issuance of any equity securities by the Borrower from the Closing Date through
the date of determination, plus (iv) 80% of the net increase in Consolidated
Tangible Net Worth resulting from any contribution thereto (including without
limitation from the North ▇▇▇▇▇▇▇▇ Contribution) from the Borrowing Date through
the date of determination.
In no event shall Base Net Worth be reduced on account of a
consolidated net loss for any fiscal period.
Base Rate shall mean the greater of (i) the interest rate per
annum announced from time to time by the Agent at its Principal Office as its
then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the Agent, or (ii) the Federal Funds Open Rate plus 1/2%
per annum.
Base Rate Option shall mean the option of the Borrower to have
Term Loans bear interest at the rate and under the terms and conditions set
forth in Section 3.1.1(i) [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 such term in
Section 5.1.24.2.
Borrower shall mean Arch Western Resources, LLC, a limited
liability company organized and existing under the laws of the State of
Delaware.
Borrower LLC Interests shall have the meaning set forth in
Section 5.1.2 [LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares].
Borrowing Date shall mean the Business Day, occurring on or
before January 31, 2004, on which the Term Loans shall be made, which date shall
be the date that all of the conditions specified in Section 6.2 have been
satisfied or waived.
Borrowing Tranche shall mean specified portions of outstanding
Term Loans as follows: (i) any Term Loans to which a Euro-Rate Option applies
which become subject to the same Interest Rate Option under the same Rate
Request by the Borrower and which have the same Interest Period shall constitute
one Borrowing Tranche; and (ii) all Term Loans to which a Base Rate applies
shall constitute one Borrowing Tranche;.
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Business Day shall mean:
(i) in the case of the Closing Date and the Borrowing Date,
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 and New York, New York; and if the applicable Business Day relates
to a Term Loan to which the Euro-Rate Option applies, such day must also be a
day on which dealings are carried on in the London interbank market, and
(ii) in the case of any day (other than the Closing Date or
the Borrowing Date), 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, New York, New York, and London, England, and if the
applicable Business Day relates to a Term Loan to which the Euro-Rate Option
applies, such day must also be a day on which dealings are carried on in the
London interbank market.
Canyon Fuel shall mean Canyon Fuel Company, LLC, a limited
liability company organized and existing under the laws of the State of
Delaware.
Canyon Fuel LLC Agreement shall mean that certain Limited
Liability Company agreement by and between the Borrower (or a Subsidiary of the
Borrower) and Itochu Coal International, Inc., a Delaware corporation, dated as
of January 1, 1997, as amended, with the Borrower and Itochu Coal International,
Inc. as members of the Canyon Fuel Company, LLC, a Delaware limited liability
company.
CIP Regulations shall have the meaning set forth in Section
9.20.
Closing Date shall mean September 19 2003.
Coastal Agreement shall mean that certain Purchase and Sale
Agreement among The Coastal Corporation, a Delaware corporation, Coastal Coal,
Inc., a Delaware corporation, ARCO and Itochu Corporation, a Japanese
corporation, dated as of October 23, 1996.
Collateral shall mean collectively the property of the
Borrower in which security interests are or have been granted or purported to be
granted to the Agent for the benefit of the Lenders under the Collateral
Documents.
Collateral Documents shall mean collectively, the Collateral
Trust Agreement, and the Note Pledge Agreement, and Collateral Document shall
mean any of the Collateral Documents.
Collateral Trust Agreement shall mean the agreement among the
Borrower, the Agent on behalf of the Lenders, and The Bank of New York, as
trustee on behalf of the Holders (as defined in the AWR Senior Notes Indenture)
and as collateral trustee, substantially in the form of Exhibit 1.1(C) hereto,
as the same may hereafter be modified, amended, restated, supplemented,
refinanced or replaced from time to time.
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 of Commitment" and thereafter on the most recent Schedule 1.1(B)
to the most recent Assignment and
5
Assumption Agreement or issued by the Agent in connection with Section 2.1.2,
and Commitments shall mean the aggregate of the Commitments of all of the
Lenders.
Consolidated Tangible Net Worth shall mean as of any date of
determination, total equity (determined before the after-tax effect of changes
in accounting principles) less intangible assets of the Borrower and its
Subsidiaries as of such date, all as determined and consolidated in accordance
with GAAP.
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.
Contribution Agreement shall mean that certain Contribution
Agreement among the Borrower, AWAC, ARCO, Delta Housing and the Parent.
Debt shall mean for any Person as of any date of
determination, the sum, without duplication, of the following for such Person,
as of such date, determined in accordance with GAAP: (i) all indebtedness for
borrowed money (including all subordinated indebtedness), (ii) all amounts
raised under or liabilities in respect of any note purchase or acceptance credit
facility, (iii) all indebtedness in respect of any other transaction (including
production payments (excluding royalties), installment purchase agreements,
forward sale or purchase agreements, 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, (iv)
reimbursement obligations (contingent or otherwise) under any letter of credit,
and (v) the amount of all indebtedness (whether matured or unmatured, liquidated
or unliquidated, direct or indirect, absolute or contingent, or joint or
several) in respect of all Guarantees by such Person (the "Guaranteeing Person")
of Debt of other Persons (each such other Person being a "Primary Obligor" and
the obligations of a Primary Obligor which are subject to a Guarantee by a
Guaranteeing Person being "Primary Obligations") (it being understood that if
the Primary Obligations of the Primary Obligor do not constitute Debt, then the
guarantee by the Guaranteeing Person of the Primary Obligations of the Primary
Obligor shall not constitute Debt).
Debt Rating shall mean the rating of any of the Parent's
indebtedness by either of Standard & Poor's or ▇▇▇▇▇'▇.
Delta Housing shall mean Delta Housing Inc., a corporation
organized and existing under the laws of the State of Delaware.
Delta Housing Guaranty shall mean that certain Master Guaranty
of Collection dated as of June 1, 1998, executed by Delta Housing in favor of
the judgment creditors referred to therein.
Derivatives Obligations shall mean for any Person obligations
of such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity
6
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 (including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean
lawful money of the United States of America.
EBITDDA for any period of determination shall mean with
respect to any Person: (a) income from operations (with income from operations
determined, without duplication: (1) before the effect of changes in accounting
principles, and (2) without regard to the effect, without duplication, of
nonrecurring charges, extraordinary items, the AWR Financing Fee Adjustment and
the AWR Derivatives Obligations Adjustment), plus (b) to the extent deducted in
the determination of such income from operations the sum of interest expense,
income taxes, depreciation, depletion and amortization, with all amounts for
purposes of clause (a) and clause (b) for such period determined in accordance
with GAAP.
Eligible Note Receivable shall mean that certain unsecured
demand note payable by the Parent to the Borrower, dated June 25, 2003 and that
certain unsecured demand note payable by the Parent to the Borrower dated as of
September 18, 2003, as either such note may hereafter be modified, amended,
restated, supplemented, refinanced, replaced, extended or renewed from time to
time, subject to the prior written consent of the Agent in the event of: (i) any
modification, amendment, restatement, supplement, refinancing, replacement,
extension, or renewal of such unsecured demand note which reduces the rate of
interest payable by the Parent thereunder, which provides for any collateral
security therefore, which provides for any guarantee thereof or which modifies,
amends, restates, supplements or eliminates any right of set-off thereunder, or
(ii) any other modification, amendment, restatement, supplement, refinancing,
replacement, extension, or renewal of such unsecured demand note on terms
materially adverse to the Borrower or the Lenders.
Environmental Claim shall mean any administrative, regulatory
or judicial action, suit, claim, notice of noncompliance or violation, notice of
liability or potential liability, proceeding, consent order or consent agreement
relating in any way to any of the Environmental Laws, Environmental Permit,
Regulated Substances or Contamination or arising from alleged injury or threat
of injury to the environment.
Environmental Complaint shall mean any written notice or
complaint by any Person or Official Body setting forth allegations relating to
or 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 of the 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 of the Environmental Laws.
Environmental Laws shall mean, collectively, any federal,
state, local or foreign statute, Law (including, but not limited to
Comprehensive Environmental Response,
7
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq., the Federal Safe Drinking
Water Act, 42 U.S.C. Section 300f-300j, the Federal Air Pollution Control Act,
42 U.S.C. Section 7401 et seq., the Oil Pollution Act, 33 U.S.C. Section 2701 et
seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section
136 to 136y, the Occupational Safety and Health Act, 29 U.S.C. Section 651 et
seq. the Mine Safety and Health Act, 30 U.S.C. Section 801 et seq., the Surface
Mining Control and Reclamation Act 30 U.S.C. Section 1201 et seq., each as
amended, or any equivalent state or local statute, and any amendments thereto),
code, consent decree, settlement agreement, directive, judicial or agency
interpretation, policy or guidance regulating: (i) pollution or pollution
control; (ii) protection of human health from exposure to Regulated Substances;
(iii) protection of natural resources or the environment; (iv) employee safety
in the workplace and the protection of employees from exposure to Regulated
Substances in the workplace (but excluding workers compensation and wage and
hour laws); (vi) the presence, use, management, generation, manufacture,
processing, extraction, treatment, recycling, refining, reclamation, labeling,
transport, storage, sale, collection, distribution, disposal or Release or
threat of Release of Regulated Substances; (v) the presence of Contamination;
(vi) the protection of endangered or threatened species; and (vii) the
protection of Environmentally Sensitive Areas.
Environmental Permit shall mean any permit, approval, license,
consent, bond or other authorization required under any of the Environmental
Laws.
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.
Euro-Rate shall mean, with respect to the Term Loans
comprising any Borrowing Tranche to which the Euro-Rate Option applies for any
Interest Period, the interest rate per annum determined by the Agent by dividing
(the resulting quotient rounded upward to the nearest 1/100 of 1% per annum) (i)
the rate of interest determined by the Agent (which determination shall be
conclusive absent manifest error) to be the average of the London interbank
offered rates of interest per annum for U.S. Dollars set forth on Dow ▇▇▇▇▇
Market Service display page 3750 or such other display page on the Dow ▇▇▇▇▇
Market Service System
8
as may replace such page to evidence the average of rates quoted by banks
designated by the British Bankers' Association (or appropriate successor or, if
the British Bankers' Association or its successor ceases to provide such quotes,
a comparable replacement determined by the Agent) at 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period for an
amount comparable to such Borrowing Tranche and having a borrowing date and a
maturity comparable to such Interest Period by (ii) a number equal to 1.00 minus
the Euro-Rate Reserve Percentage. The Euro-Rate may also be expressed by the
following formula:
Dow ▇▇▇▇▇ Market Service page 3750 quoted by British
Euro-Rate = Bankers' Association or appropriate successor
---------------------------------------------
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding
on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Agent shall give prompt notice to the Borrower and the
Lenders of the Euro-Rate as determined or adjusted in accordance herewith, which
determination shall be conclusive absent manifest error.
Euro-Rate Option shall mean the option of the Borrower to have
the Term Loans bear interest at the rate and on the terms and conditions set
forth in Section 3.1.1(ii) [Euro-Rate Option].
Euro-Rate Reserve Percentage shall mean the maximum percentage
(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the Agent which is in effect during any relevant period, 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") of a member bank in such System.
Event of Default shall mean any of the events described in
Section 8.1 [Events of Default] and referred to therein as an "Event of
Default."
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.
Expiration Date shall mean April 18, 2007.
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.
9
Federal Funds Open Rate shall mean the rate per annum
determined by the Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the "open" rate
for federal funds transactions as of the opening of business for federal funds
transactions among members of the Federal Reserve System arranged by federal
funds brokers on such day, as quoted by ▇▇▇▇▇▇ Guybutler, any successor entity
thereto, or any other broker selected by the Agent, as set forth on the
applicable Telerate display page; 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, or if no such rate shall be quoted by
a federal funds broker at such time, such other rate as determined by the Agent
in accordance with its usual procedures.
Fee Letter shall have the meaning assigned to that term in
Section 9.15 [Agent's Fee].
Financial Projections shall have the meaning assigned to that
term in Section 5.1.7(iii) [Financial Projections].
Fixed Charge Coverage Ratio shall mean the ratio of (a) the
sum of EBITDDA of the Borrower and its Subsidiaries, plus, without duplication,
the Appropriate Percentage of each Special Subsidiary's EBITDDA, each on a
consolidated basis in accordance with GAAP, plus operating lease expense of the
Borrower and its Subsidiaries, plus, without duplication, the Appropriate
Percentage of each Special Subsidiary's operating lease expense, each on a
consolidated basis in accordance with GAAP, to (b) the sum of interest expense
(other than, to the extent and only to the extent included in interest expense,
the sum, without duplication, of: (i) Permitted Loan Origination Expense, (ii)
the amount of the AWR Financing Fee Adjustment, and (iii) the amount of the AWR
Derivatives Obligations Adjustment) of the Borrower and its Subsidiaries, plus,
without duplication, the Appropriate Percentage of interest expense of each
Special Subsidiary, each on a consolidated basis in accordance with GAAP, plus
operating lease expense of the Borrower and its Subsidiaries, plus, without
duplication, the Appropriate Percentage of operating lease expense of each
Special Subsidiary, each on a consolidated basis in accordance with GAAP, with
the amounts under the numerator and denominator of such ratio all calculated as
of the last day of each fiscal quarter for the four fiscal quarters of the
Borrower then ended.
For purposes of calculating the Fixed Charge Coverage Ratio for the
First Adjusted Quarter (as hereinafter defined) through and including the Fourth
Adjusted Quarter (as hereinafter defined), clause (a) above shall be increased
by the sum of (x) a percentage of the North ▇▇▇▇▇▇▇▇ EBITDDA Adjustment
corresponding to the applicable financial period indicated below:
10
------------------------------------------------------------------
PERCENTAGE OF NORTH ▇▇▇▇▇▇▇▇ EBITDDA
ADJUSTMENT PERIOD
------------------------------------------------------------------
100% First Adjusted Quarter
------------------------------------------------------------------
75% Second Adjusted Quarter
------------------------------------------------------------------
50% Third Adjusted Quarter
------------------------------------------------------------------
25% Fourth Adjusted Quarter
------------------------------------------------------------------
plus (y) North ▇▇▇▇▇▇▇▇ Integration Expenses incurred by the Borrower and its
Subsidiaries during the applicable period of determination with respect to which
the numerator of the Fixed Charge Coverage Ratio pursuant to clause (a) above is
determined to the extent that (i) such expenses are deducted in the
determination of EBITDDA for such period, and (ii) such expenses are not
included as expenses that constitute a portion of the North ▇▇▇▇▇▇▇▇ Synergistic
Savings for purposes of determining the North ▇▇▇▇▇▇▇▇ EBITDDA Adjustment under
clause (x) above of this definition of Fixed Charge Coverage Ratio.
As used in this definition of Fixed Charge Coverage Ratio: First
Adjusted Quarter shall mean the fiscal quarter of the Borrower during which the
North ▇▇▇▇▇▇▇▇ Contribution is consummated, Second Adjusted Quarter shall mean
the fiscal quarter of the Borrower immediately following the First Adjusted
Quarter, Third Adjusted Quarter shall mean the fiscal quarter of the Borrower
immediately following the Second Adjusted Quarter and Fourth Adjusted Quarter
shall mean the fiscal quarter of the Borrower immediately following the Third
Adjusted Quarter.
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.
Guarantors shall mean at any time collectively each of the
Significant Subsidiaries of the Borrower, other than Canyon Fuel.
Guarantor Joinder shall mean a joinder by a Person as a
Guarantor under the Guarantor Joinder and Assumption Agreement 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 such
liability arising by virtue of partnership agreements, 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.
11
Guaranty Agreement shall mean the Continuing Guaranty and
Suretyship Agreement in substantially the form of Exhibit 1.1(G)(2) executed and
delivered by each of the Guarantors to the Agent for the benefit of the Lenders,
as the same may hereafter be modified, amended, restated, supplemented,
refinanced or replaced from time to time in accordance herewith or therewith.
Historical Statements shall have the meaning assigned to that
term in Section 5.1.7(i) [Borrower Historical Statements].
Hybrid Security shall mean any of the following: (i)
beneficial interests issued by a trust or other entity which constitutes a
Subsidiary of any Loan Party, substantially all of the assets of which trust or
other entity are unsecured Indebtedness of any Loan Party or any Subsidiary of
any Loan Party or proceeds thereof, and all payments of which Indebtedness are
required to be, and are, distributed to the holders of beneficial interests in
such trust promptly after receipt by such trust, or (ii) any shares of capital
stock or other equity interest that, other than solely at the option of the
issuer thereof, by their terms (or by the terms of any security into which they
are convertible or exchangeable) are, or upon the happening of an event or the
passage of time would be, required to be redeemed or repurchased, in whole or in
part, or have, or upon the happening of an event or the passage of time would
have, a redemption or similar payment.
Hypothetical Income Tax Amount shall have the meaning assigned
to that term in the Arch Western LLC Agreement.
Inactive Subsidiaries shall mean, at any time, collectively,
the Subsidiaries of the Borrower which: (i) do not actively conduct any business
or operations, and (ii) have total assets, in the case of any such Subsidiary,
with a book value, as of any date of determination, not in excess of $250,000.
Income Tax Regulations shall mean those regulations
promulgated pursuant to the Internal Revenue Code.
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, (iv) any other transaction (including
production payments (excluding royalties), installment purchase agreements,
forward sale or purchase agreements, 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), or (v) any Guaranty of
any such Indebtedness. It is understood that Derivatives Obligations shall not
be deemed to be Indebtedness.
12
Independent Financial Advisor shall mean an investment banking
firm of national standing or any third party appraiser of national standing,
provided that such firm or appraiser is not an Affiliate of the Borrower or any
Subsidiary of the Borrower.
Interest Period shall have the meaning set forth in Section
3.2.
Interest Rate Option shall mean any Euro-Rate Option or Base
Rate Option.
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.
Investments shall mean collectively all of the following with
respect to any Person: (i) investments or contributions by any of the Loan
Parties or their Subsidiaries directly or indirectly in or to the capital of or
other payments to (except in connection with transactions for the sale of goods
or services for fair value in the ordinary course of business) such Person, (ii)
loans by any of the Loan Parties or their Subsidiaries to such Person, (iii)
guaranties by any Loan Party or any Subsidiary of any Loan Party directly or
indirectly of the obligations of such Person, or (iv) other obligations,
contingent or otherwise, of any Loan Party or any Subsidiary of any Loan Party
to or for the benefit of such Person. If the nature of an Investment is tangible
property, then the amount of such Investment shall be determined by valuing such
property at fair value in accordance with the past practice of the Loan Parties
and such fair values shall be satisfactory to the Agent, in its sole discretion.
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, judgment, lien or award of or settlement agreement
with any Official Body.
Lenders shall mean collectively the financial institutions and
other parties 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.
Leverage Ratio shall mean the ratio of the amounts under the
following clauses (a) and (b): (a) sum of Debt of the Borrower and its
Subsidiaries, plus, without duplication, the Appropriate Percentage of Debt of
each Special Subsidiary, each on a consolidated basis in accordance with GAAP
(as the numerator), to (b) the sum of EBITDDA of the Borrower and its
Subsidiaries, plus, without duplication, the Appropriate Percentage of each
Special Subsidiary's EBITDDA, each on a consolidated basis in accordance with
GAAP (as the denominator). For purposes of calculating the Leverage Ratio, Debt
shall be determined as of the end of each fiscal quarter of the Borrower and
EBITDDA shall be determined as of the end of each fiscal quarter of the Borrower
for the four fiscal quarters then ended.
13
For purposes of calculating the Leverage Ratio for the First Adjusted
Quarter (as hereinafter defined) through and including the Fourth Adjusted
Quarter (as hereinafter defined), clause (b) above shall be increased by the sum
of (x) a percentage of the North ▇▇▇▇▇▇▇▇ EBITDDA Adjustment corresponding to
the applicable financial period indicated below:
------------------------------------------------------------------
PERCENTAGE OF NORTH ▇▇▇▇▇▇▇▇ EBITDDA
ADJUSTMENT PERIOD
------------------------------------------------------------------
100% First Adjusted Quarter
------------------------------------------------------------------
75% Second Adjusted Quarter
------------------------------------------------------------------
50% Third Adjusted Quarter
------------------------------------------------------------------
25% Fourth Adjusted Quarter
------------------------------------------------------------------
plus (y) North ▇▇▇▇▇▇▇▇ Integration Expenses incurred by the Borrower and its
Subsidiaries during the applicable period of determination with respect to which
the denominator of the Leverage Ratio pursuant to clause (b) above is determined
to the extent that (i) such expenses are deducted in the determination of
EBITDDA for such period, and (ii) such expenses are not included as expenses
that constitute a portion of the North ▇▇▇▇▇▇▇▇ Synergistic Savings for purposes
of determining the North ▇▇▇▇▇▇▇▇ EBITDDA Adjustment under clause (x) above of
this definition of Leverage Ratio.
As used in this definition of Leverage Ratio: First Adjusted Quarter
shall mean the fiscal quarter of the Borrower during which the North ▇▇▇▇▇▇▇▇
Contribution is consummated, Second Adjusted Quarter shall mean the fiscal
quarter of the Borrower immediately following the First Adjusted Quarter, Third
Adjusted Quarter shall mean the fiscal quarter of the Borrower immediately
following the Second Adjusted Quarter and Fourth Adjusted Quarter shall mean the
fiscal quarter of the Borrower immediately following the Third Adjusted Quarter.
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 Agreements shall mean collectively the Arch Western LLC
Agreement, the Canyon Fuel LLC Agreement, the Mountain Coal LLC Agreement, the
Arch of Wyoming LLC Agreement, and the Thunder Basin LLC Agreement.
LLC Interests shall have the meaning given to such term in
Section 5.1.2 [LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares].
14
Loan Documents shall mean this Agreement, the Collateral Trust
Agreement, the Guaranty Agreement, the Note Pledge Agreement, the Term Notes 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 hereafter be modified, amended, restated, supplemented, refinanced or
replaced 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.
Loans shall mean collectively all Term Loans and Loan shall
mean separately any Term Loan.
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
materially adverse to the business, financial condition or results of operations
of the Borrower and its Subsidiaries taken as a whole, or (c) impairs materially
or could reasonably be expected to impair materially the ability of any 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 collectively all contracts,
agreements or other instruments described in Regulation S-K, Item 601(b)(10)
promulgated pursuant to the Securities Exchange Act of 1934, as amended, which
the Parent or any Subsidiary of the Parent is required to file as an exhibit to
any annual, quarterly or other report required to be filed by the Parent or any
Subsidiary of the Parent under the Securities Exchange Act of 1934, as amended.
Month, with respect to an Interest Period under the Euro-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
Interest Period for any Term Loan subject to a Euro-Rate Option begins on a day
of a 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.
Moody's shall mean ▇▇▇▇▇'▇ Investors Service, Inc., and its
successors.
Mountain Coal LLC Agreement shall mean that certain Limited
Liability Company Agreement, dated as of March 6, 1998, as amended, of Mountain
Coal Company, L.L.C., a limited liability company organized and existing under
the laws of the State of Delaware.
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.
15
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
Net Cash Proceeds shall mean, with respect to any transaction,
an amount equal to the cash proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such transaction (including, when received,
any cash proceeds received as income or other cash proceeds of any non-cash
proceeds of such transaction), less (x) any expenses or charges (including
commissions, fees and taxes paid or payable) reasonably incurred by such Person
in respect of such transaction, (y) in the event that the transaction is a sale
or disposition, any amounts considered appropriate by the chief financial
officer of the Borrower to provide reserves in accordance with GAAP for payment
of indemnities or liabilities that may be incurred in connection with such sale
or disposition, and (z) in the case of any asset sale permitted by Section
7.2.4(iv) the amount of any debt secured by a Lien on the related asset and
discharged as part of such asset sale. For purposes of this definition, if taxes
or other expenses payable in connection with the sale or other disposition of
any asset are not known as of the date of such sale or other disposition, then
such fees, commissions, expenses or taxes shall be estimated in good faith by
the chief financial officer of the Borrower and such estimated amounts shall be
deducted. At such time as any reserved amount described in clause (y) above is
no longer required to be held in reserve, the balance thereof, after payment of
the related liabilities or indemnities, shall be used as follows: (a) if such
transaction is a sale of assets permitted by Section 7.2.4(iii) to make the
purchase of substitute assets required by Section 7.2.4(iii), and (b) if such
transaction is a sale, transfer or lease of assets permitted by Section
7.2.4(iv) to make a mandatory prepayment of the Term Loans in accordance with
Section 4.5.1.
North ▇▇▇▇▇▇▇▇ Contribution shall mean, collectively, the
following:
(i) the contribution to the applicable Subsidiaries of Arch
Western by the applicable members of the Arch Coal Group of those assets
acquired as part of the Vulcan Acquisition which are used in connection with the
operation of that certain mine commonly referred to by Triton as the North
▇▇▇▇▇▇▇▇ mine and that is located in ▇▇▇▇▇▇▇▇ County, Wyoming, the contributed
assets of which are more fully set forth on Schedule 1.1(N); and
(ii) the unconditional and irrevocable assumption, in
connection with the contribution of assets described in the immediately
preceding clause (i), by the applicable Subsidiaries of Arch Western of those
liabilities and obligations identified on Schedule 1.1(N) as the "North ▇▇▇▇▇▇▇▇
Assumed Liabilities."
North ▇▇▇▇▇▇▇▇ Contribution Documents shall mean all
agreements and related documentation with respect to the North ▇▇▇▇▇▇▇▇
Contribution, including, without limitation any leases, subleases or other
agreements between any member of the Arch Coal Group and any member of the Arch
Western Group.
North ▇▇▇▇▇▇▇▇ EBITDDA shall mean for any period of
determination, with respect to the business operation contributed in the North
▇▇▇▇▇▇▇▇ Contribution, the sum of (a) income from such operations (with income
from operations determined, without duplication:
16
(1) before the effect of changes in accounting principles, and (2) without
regard to the effect, without duplication, of nonrecurring charges and,
extraordinary items), plus (b) to the extent deducted in the determination of
such income from operations the sum of interest expense, income taxes,
depreciation, depletion and amortization, with all amounts for purposes of
clause (a) and clause (b) for such period determined in accordance with GAAP.
North ▇▇▇▇▇▇▇▇ EBITDDA Adjustment shall mean the sum of North
▇▇▇▇▇▇▇▇ Pro Forma EBITDDA plus North ▇▇▇▇▇▇▇▇ Synergistic Savings.
North ▇▇▇▇▇▇▇▇ EBITDDA Period shall mean a period, consisting
of twelve consecutive months ending prior to the consummation of the North
▇▇▇▇▇▇▇▇ Contribution, as such period is reasonably acceptable to the Agent.
North ▇▇▇▇▇▇▇▇ Integration Expenses shall mean expenses (as
determined in accordance with GAAP and expressly excluding any amount therefrom
that is capitalized in accordance with GAAP) of up to $15,000,000 in the
aggregate incurred by the Borrower and its Subsidiaries prior to the one hundred
eighty-first (181) day following the date of consummation of the North ▇▇▇▇▇▇▇▇
Contribution, for permanent improvements to the mining operations acquired as
part of the North ▇▇▇▇▇▇▇▇ Contribution for the purposes of the following:
exploration drilling sample analysis, de-watering system installation, lease bid
acquisition obligations, permit renewal/annual report, NOx Program obligations,
flood control/reclamation catch-up, maintenance items for operations and plant,
and employee severance and retention payments. The amount of North ▇▇▇▇▇▇▇▇
Integration Expenses shall be set forth by the Borrower on its quarterly
compliance certificates delivered pursuant to Section 7.3.3 [Certificate of the
Borrower] and reasonably satisfactory to the Agent.
North ▇▇▇▇▇▇▇▇ Mineral Rights shall mean those rights
associated with the operation of that certain mine commonly referred to by
Triton as the North ▇▇▇▇▇▇▇▇ mine and that is located in ▇▇▇▇▇▇▇▇ County,
Wyoming and as set forth in: (a) Federal Coal Lease W-71692, originally dated
December 1, 1966, segregated from WYW-0321779, readjusted effective December 1,
1996, modified effective January 1, 2003, from the United States of America to
Triton; (b) Federal Coal Lease WYW-127221 dated January 1, 1998, from the United
States of America to Triton Coal Company, LLC; and (c) Coal Lease Agreement,
executed in counterparts, from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ et ux, dated December 20, 1979,
and from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. et ux, and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ dated
December 27, 1979 to Peabody Coal Company.
North ▇▇▇▇▇▇▇▇ Pro Forma EBITDDA shall mean the dollar amount
of North ▇▇▇▇▇▇▇▇ EBITDDA which shall satisfy all of the following conditions:
(i) such amount shall be based upon North ▇▇▇▇▇▇▇▇ EBITDDA for
the North ▇▇▇▇▇▇▇▇ EBITDDA Period, and
(iii) the Chief Executive Officer, President or Chief
Financial Officer of the Borrower shall have certified to the Agent for the
benefit of the Banks the amount of the North ▇▇▇▇▇▇▇▇ EBITDDA for the North
▇▇▇▇▇▇▇▇ EBITDDA Period, with such certificate to be in form, substance and
detail reasonably satisfactory to the Agent and with North ▇▇▇▇▇▇▇▇
17
EBITDDA for the North ▇▇▇▇▇▇▇▇ EBITDDA Period to be based upon financial
statements and other supporting accounting and financial information reasonably
satisfactory to the Agent.
North ▇▇▇▇▇▇▇▇ Synergistic Savings shall mean $10,000,000, in
the aggregate, which is the amount of expenses estimated by the Borrower (to the
reasonable satisfaction of the Agent) to be saved on a fiscal year basis from
combining the operations that are part of the North ▇▇▇▇▇▇▇▇ Contribution with
the existing operations of the Borrower and its Subsidiaries.
Note Pledge Agreement shall mean the Note Pledge Agreement
substantially in the form of Exhibit 1.1(N) executed and delivered by the
Borrower to the Agent for the benefit of the Lenders, as the same may hereafter
be modified, amended, restated, supplemented, refinanced or replaced from time
to time in accordance herewith or therewith.
Notices shall have the meaning assigned to that term in
Section 10.6 [Notices].
Obligation shall mean any obligation, Indebtedness, or
liability of any of the Loan Parties to any 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, any Term Notes, the Fee Letter, or any other
Loan Document.
Official Body shall mean any national, federal, state, local
or other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic,
including, without limitation, the National Association of Insurance
Commissioners or similar body.
Parent shall mean Arch Coal, Inc., a corporation organized and
existing under the laws of the State of Delaware.
Partnership Interests shall have the meaning given to such
term in Section 5.1.2 [LLC Interests of Borrower; Subsidiaries; and Subsidiary
Shares].
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Acquisition shall have the meaning assigned to such
term in Section 7.2.3 [Liquidations, Mergers, Consolidations, Acquisitions].
Permitted Additional AWR Indebtedness shall mean Indebtedness
issued by the Borrower or a Subsidiary of the Borrower which Indebtedness meets
all of the following requirements:
(i) the aggregate principal amount of such Indebtedness at any
time outstanding shall not exceed $700,000,000;
18
(ii) no portion of the principal of such Indebtedness shall be
due prior to seven years after the date of issuance thereof,
other than any mandatory redemptions required (y) under the
AWR Senior Notes Indenture in the event that proceeds from the
sale, transfer, lease or other disposition of assets of a
member of the Arch Western Group are not timely used, as
required in accordance with the AWR Senior Notes Indenture, to
acquire replacement assets, or (z) under any other indenture
or agreement containing mandatory redemption provisions which
are no more restrictive than the mandatory redemption
provisions under the AWR Senior Notes Indenture upon a sale,
transfer, lease or other disposition of assets in the event
that proceeds from such sale, transfer, lease or other
disposition of assets of a member of the Arch Western Group
are not timely used to acquire replacement assets;
(iii) the rate of interest applicable to such Indebtedness
shall not exceed 8 1/2%;
(iv) after giving effect to the issuance of such Indebtedness
(the amount of which shall be included as Indebtedness in
computing the Leverage Ratio) the Loan Parties shall be in
pro-forma compliance with the covenants set forth in Section
7.2 [Negative Covenants] of this Agreement and no Event of
Default or Potential Default shall exist or be continuing;
(v) the events of default and covenants applicable to such
Indebtedness shall not be more restrictive, in any material
respect, than the events of default and covenants governing
those matters or similar matters which are the subject of
Section 7.2 [Negative Covenants] of this Agreement;
(vi) such Indebtedness shall be secured by no more than the
pledge of the Eligible Note Receivable;
(vii) any Guaranty of such Indebtedness shall be provided only
by a member of the Arch Western Group;
(viii) such Indebtedness shall not restrict loans or advances
by any member of the Arch Western Group to any member of the
Arch Coal Group, other than restrictions which are no more
restrictive than as set forth in the AWR Senior Notes
Indenture;
(ix) such Indebtedness shall not restrict dividends or
distributions payable by any member of the Arch Western Group
to any member of the Arch Coal Group other than restrictions
that are no more restrictive than as set forth in the AWR
Senior Notes Indenture;
(x) all Obligations of the Loan Parties under this Agreement
and the other Loan Documents shall not conflict with or
violate the terms of such Indebtedness, and any Loans made or
hereafter made to the Borrower will be permitted to be
incurred under such Indebtedness;
19
(xi) such Indebtedness will not conflict with or violate the
terms of this Agreement or any other Loan Document; and
(xii) prior to the issuance of such Indebtedness the Agent
shall have received copies of drafts in final form or
execution copies of all material documents with respect to
such Indebtedness and such documents shall be reasonably
acceptable to the Agent based upon the requirements of this
definition of Permitted Additional AWR Indebtedness.
The Loan Parties shall promptly after issuance of
Permitted Additional AWR Indebtedness deliver to the Agent and the Lenders a
copy of the material documents with respect to the issuance of such
Indebtedness.
Permitted Investments shall mean
(i) direct obligations of the U.S. or any agency or
instrumentality thereof or obligations backed by the full faith and credit of
the U.S. maturing in twelve (12) months or less from the date of acquisition;
(ii) commercial paper maturing in 180 days or less rated in
the highest categories by Standard & Poor's or Moody's on the date of
acquisition; and
(iii) demand deposits, time deposits or certificates of
deposit maturing within one year in a commercial bank whose obligations are
rated A-1, A or the equivalent or better by Standard & Poor's on the date of
determination.
Permitted Joint Venture shall mean any Person (i) with respect
to which the ownership of equity interests thereof by the Borrower or any
Subsidiary of the Borrower is accounted for in accordance with the "equity
method" in accordance with GAAP; (ii) engaged in a line of business permitted by
Section 7.2.7 [Continuation of or Change in Business]; and (iii) with respect to
which the equity interests thereof were acquired by the Borrower or Subsidiary
of the Borrower in an arms-length transaction; provided that any such Person
shall be treated for purposes of this Agreement as a Subsidiary and not a
Permitted Joint Venture if (A) the Borrower has management control over the
operations of such Person and (B) the Borrower owns directly or indirectly a
majority of the economic equity interest in such Person.
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 reclamation liabilities, worker's compensation, or
to participate in any fund in connection with worker'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
20
and payable and Liens of landlords securing obligations to pay lease payments
that are not yet due and payable or in default;
(iv) Good-faith pledges of cash or marketable securities or
deposits of cash or marketable securities made in the ordinary course of
business to secure performance of bids (including bonus 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 (it being understood that any appeal
or similar bond (other than such a bond required pursuant to applicable Law to
secure in the ordinary course payment of worker's compensation, reclamation
liabilities or royalty bonds) in an amount exceeding $50,000,000 shall not be 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) As collateral security for the AWR Senior Notes or as
collateral security for other Permitted Additional AWR Indebtedness, collateral
consisting of no more than the pledge by the Borrower of the Eligible Note
Receivable on a priority equal to or less than the priority of the Lien granted
by the Borrower on the Eligible Note Receivable in favor of the Agent and the
Lenders, provided that the holder of any equal in priority Lien is a party to
the Collateral Trust Agreement (or successor or replacement agreement which is
substantially on the same terms as the Collateral Trust Agreement and which
agreement is in form and substance satisfactory to the Agent);
(vii) Liens on assets of the Arch Western Group securing
Indebtedness (other than Indebtedness secured by Liens described in clause (xi)
below) of not more than $25,000,000 at any time, provided, however, that (a) in
the case of Liens in respect of Purchase Money Security Interests, such Liens
attach to the assets that are purchased or acquired concurrently with or within
90 days after the purchase or acquisition thereof, and (b) in the case of Liens
not otherwise permitted by the immediately preceding clause (a), such Liens do
not in the aggregate materially detract from the value of the assets subject to
such Liens nor do such Liens materially impair the use of such assets subject to
such Liens in the operation of the business of the Arch Western Group;
(viii) 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 judgment is discharged
within thirty (30) days of entry, and they do not adversely affect the value of
the Collateral or the first priority perfected Lien and security interest of the
Agent for the benefit of the Lenders in the Collateral or, in the aggregate,
materially impair the ability of any Loan Party to perform its Obligations
hereunder or under the other Loan Documents:
21
(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 other than the
Collateral, 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 judgments or orders
described in Section 8.1.6 [Judgments or Orders];
(ix) Liens granted in the Collateral under the Collateral
Documents for the benefit of the Agent and the Lenders;
(x) Any Lien or restriction resulting from ownership, by an
entity other than an Affiliate of the Borrower, of a minority interest in Canyon
Fuel; and
(xi) Liens on property leased by any Loan Party or Subsidiary
of a Loan Party under capital leases (as the nature of such lease is determined
in accordance with GAAP) permitted under Section 7.2.15 [Off-Balance Sheet
Financing and Capital Leases] hereof securing obligations of such Loan Party or
Subsidiary to the lessor under such leases.
Permitted Loan Origination Expense shall mean the aggregate
amount of the following fees and expenses required to be capitalized in
accordance with GAAP: (i) all fees and expenses incurred by the Borrower, in
connection with the closing of the transactions under the Arch Western Credit
Facility (1998), (ii) all fees and expenses incurred by the Borrower in
connection with the amendment and restatement on the Restatement Effective Date
of the Arch Western Credit Facility (1998), and (iii) all fees and expenses
incurred by the Borrower in connection with the issuance of the AWR Senior
Notes, and (iv) all fees and expenses incurred by the Borrower in connection
with the closing of this Agreement.
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.
22
PNC Bank shall mean PNC Bank, National Association, its
successors and assigns.
Potential Default shall mean any event or condition which with
notice, passage of time or a determination by the Agent or the Required Lenders,
or any combination of the foregoing, would constitute an Event of Default.
Principal Office shall mean the main banking office of the
Agent in Pittsburgh, Pennsylvania.
Prior Security Interest shall mean a valid and enforceable
perfected first-priority security interest under the Uniform Commercial Code or
other applicable Law in the Collateral.
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.
Purchase Agreement shall mean that certain Purchase and Sale
Agreement among ARCO, ARCO Uinta Coal Company, a Delaware corporation, the
Parent and AWAC, dated as of March 22, 1998, together with all schedules and
exhibits thereto.
Purchasing Lender shall mean a Lender which becomes a party to
this Agreement by executing an Assignment and Assumption Agreement.
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 bears to the Commitments of all Lenders.
Rate Request shall mean a request to select, convert to or
renew a Base Rate Option or Euro-Rate Option with respect to the Term Loans in
accordance with Section 2.5 [Request to Select Interest Rate Options].
Register shall have the meaning set forth in Section 10.19
[Register] hereof.
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
23
"regulated substance" or any other material, substance or waste, regardless of
its form or nature, which is regulated by the Environmental Laws due to its
radioactive, ignitable, corrosive, reactive, explosive, toxic, carcinogenic or
infectious properties or nature, or which otherwise is regulated by any
applicable Environmental Laws including, without limitation, coal and other
minerals, coal refuse, run-of-mine coal, acid mine drainage, petroleum and
petroleum products (including crude oil and any fractions thereof), natural gas,
coalbed methane gas, synthetic gas and any mixtures thereof, asbestos, urea
formaldehyde, polychlorinated biphenyls, mercury and radioactive substances.
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.
Release shall mean anything defined as a "release" under
CERCLA or RCRA.
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 Lenders shall mean
(i) if there are no Term Loans outstanding, Lenders whose
Commitments aggregate more than 50% of the Commitments of all of the Lenders, or
(ii) if there are Term Loans outstanding, Lenders whose
outstanding Term Loans aggregate more than 50% of the total principal amount of
all of the Term Loans then outstanding.
Restatement Effective Date shall mean April 18, 2002.
SEC shall mean the Securities and Exchange Commission or any
governmental agencies substituted therefor.
Significant Subsidiary shall mean individually any Subsidiary
of Borrower other than the Inactive Subsidiaries, and Significant Subsidiaries
shall mean collectively all Subsidiaries of Borrower other than the Inactive
Subsidiaries.
Solvent shall mean, with respect to any Person on a particular
date, that on such date (i) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (ii) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (iv) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (v) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged. In computing the
24
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed as the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
Special Subsidiary shall mean Canyon Fuel and each other
Person to be treated as a Subsidiary in accordance with the proviso to the
definition of Permitted Joint Venture.
Standard & Poor's shall mean Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
Subsidiary of any Person at any time shall mean (i) any
corporation or trust of which more than 50% (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 more than 50% 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 more than 50% 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. As of
the Closing Date, the Borrower owns 65% of the member interests of Canyon Fuel.
It is expressly agreed that each Special Subsidiary shall be deemed to be a
Subsidiary of the Borrower for purposes of this Agreement. Nonetheless, the
Appropriate Percentage of the assets, income, expenses, liabilities and other
items with respect to each Special Subsidiary shall be included, without
duplication, for purposes of calculating the Leverage Ratio, the Fixed Charge
Coverage Ratio, inclusion in Section 7.2.15 [Off-Balance Sheet Financing and
Capital Leases], for purposes of calculating EBITDDA and for purposes of Section
7.2.12 [Minimum Net Worth, as described more fully in the definitions of
"Leverage Ratio" and "Fixed Charge Coverage Ratio".
Subsidiary Shares shall have the meaning assigned to that term
in Section 5.1.2 [LLC Interests of Borrower; Subsidiaries; and Subsidiary
Shares].
Tax Sharing Agreement shall mean that certain Tax Sharing
Agreement dated as June 1, 1998 by and among the Borrower, AWAC, the Parent and
Delta Housing.
Term Loan shall have the meaning given to such term in Section
2.1 [Commitments]; Term Loans shall mean collectively all of the Term Loans.
Term Notes shall mean collectively all of the Term Notes of
the Borrower in the form of Exhibit 1.1(T) evidencing the Term Loans, as the
same may hereafter be modified, amended, restated, supplemented, refinanced,
replaced, extended or renewed from time to time in accordance herewith or
therewith in whole or in part, and Term Note shall mean separately any of the
Term Notes.
25
Thunder Basin LLC Agreement shall mean that certain Limited
Liability Company Agreement, dated as of July 10, 1997, as amended, of Thunder
Basin Coal Company, L.L.C., a limited liability company organized and existing
under the laws of the State of Delaware.
Transferor Lender shall mean the selling Lender pursuant to an
Assignment and Assumption Agreement.
Triton shall mean Triton Coal Company, LLC, a Delaware limited
liability company.
UBS Debt shall mean any Indebtedness outstanding on or before
the Closing Date arising out of (i) that certain Amended and Restated Loan
Agreement dated December 1, 1998 and amended and restated on May 15, 2000 among
Triton Coal Company, LLC, Vulcan Intermediary, L.L.C., UBS Warburg LLC, as
arranger, and UBS AG, Stamford Branch, as lender and administrative agent for
the lender, in the principal amount of $215,000,000, and (ii) that certain
Amended and Restated Senior Subordinated Credit Agreement dated May 15, 2000 and
amended and restated on December 29, 2000 among Triton Coal Company, LLC, Vulcan
Intermediary, L.L.C., as Guarantor, UBS Warburg LLC, as arranger, and UBS AG,
Stamford Branch, as lender and administrative agent for the lender.
Uniform Commercial Code shall have the meaning assigned to
that term in Section 5.1.21 [Security Interests].
U.S. shall mean the United States of America.
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.
Vulcan Acquisition shall mean the transactions contemplated by
the Vulcan Merger Agreement, as such document may be amended, modified or
supplemented after the Closing Date as permitted by Section 7.2.14.
Vulcan Acquisition Documents shall mean collectively the
Vulcan Merger Agreement and all other material agreements in connection
therewith, as the same may be amended, modified or supplemented after the
Closing Date as permitted by Section 7.2.14.
Vulcan Merger Agreement shall mean that certain that certain
Merger and Purchase Agreement among Borrower, Triton Acquisition LLC, a Delaware
limited liability company, New Vulcan Coal Holdings, L.L.C., a Delaware limited
liability company and Vulcan Coal Holdings, L.L.C., a Delaware limited liability
company, dated as of May 29, 2003, together with all schedules and exhibits
thereto, as the same may be amended, modified or supplemented after the Closing
Date as permitted by Section 7.2.14.
Withholding Certificate shall have the meaning assigned to
that term in Section 10.17.1.
26
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:
1.2.1 Number; Inclusion.
references to the plural include the singular, the plural, the
part and the whole; "or" has the inclusive meaning represented by the phrase
"and/or"; and "including" has the meaning represented by the phrase "including
without limitation";
1.2.2 Determination.
references to "determination" of or by the Agent or the
Lenders shall be deemed to include good-faith estimates by the Agent or the
Lenders (in the case of quantitative determinations) and good-faith beliefs by
the Agent or the Lenders (in the case of qualitative determinations) and such
determination shall be conclusive absent manifest error;
1.2.3 Agent's Discretion and Consent.
whenever the Agent or the Lenders are granted the right herein
to act in its or their sole discretion or to grant or withhold consent such
right shall be exercised in good faith;
1.2.4 Documents Taken as a Whole.
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 and not to any particular
provision of this Agreement or such other Loan Document;
1.2.5 Headings.
the section and other headings contained in this Agreement or
such other Loan Document and the Table of Contents (if any), preceding this
Agreement or such other Loan Document are for reference purposes only and shall
not control or affect the construction of this Agreement or such other Loan
Document or the interpretation thereof in any respect;
1.2.6 Implied References to This Agreement.
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the case may be,
unless otherwise specified;
1.2.7 Persons.
reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
this Agreement or such other Loan Document, as the case may be, and reference to
a Person in a particular capacity excludes such Person in any other capacity;
27
1.2.8 Modifications to Documents.
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 in accordance with
the applicable provisions thereof and hereof;
1.2.9 From, To and Through.
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"; and
1.2.10 Shall; Will.
references to "shall" and "will" are intended to have the same
meaning.
1.3 Accounting Principles.
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 7.2 [Negative Covenants] (and all defined terms used in the
definition of any accounting term used in Section 7.2), as applied to the
Borrower and its Subsidiaries shall have the meaning given to such terms (and
defined terms) under GAAP as in effect on the Closing Date applied on a basis
consistent with those used in preparing the Historical Statements referred to in
Section 5.1.7(i) [Borrower Historical Statements]. In the event of any change
after the Closing Date in GAAP, and if such change would result in the inability
to determine compliance with the financial covenants set forth in Section 7.2
based upon the Borrower's regularly prepared financial statements by reason of
the preceding sentence, then the parties hereto agree to endeavor, in good
faith, to agree upon an amendment to this Agreement that would adjust such
financial covenants in a manner that would not affect the substance thereof, but
would allow compliance therewith to be determined in accordance with the
Borrower's financial statements at that time.
2. TERM LOAN FACILITY
2.1 Commitments.
2.1.1 Borrowing Date Commitments.
Subject to the terms and conditions hereof, and relying upon
the representations and warranties herein set forth, each Lender severally
agrees to make a term loan (the "Term Loan") to the Borrower on the Borrowing
Date in such principal amount as the Borrower shall request up to, but not
exceeding, such Lender's Commitment.
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2.1.2 Commitment Fee.
Accruing from the Closing Date through and including the
Borrowing Date, the Borrower agrees to pay to the Agent for the account of each
Lender, as consideration for such Lender's Commitment hereunder, a nonrefundable
commitment fee (the "Commitment Fee") equal to the twenty-five (25) basis points
(computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) computed on the amount of such Lender's Commitment. All
Commitment Fees shall be payable in arrears on the first Business Day of each
July, October, January and April after the date hereof and on the Expiration
Date or upon acceleration of the Loans.
2.2 Nature of Lenders' Obligations with Respect to Term Loans.
The obligations of each Lender to make a Term Loan to the Borrower
shall be in the proportion that such Lender's Commitment bears to the
Commitments of all Lenders, provided, however, that each Lender's Term Loan to
the Borrower shall never exceed its Commitment. The failure of any Lender to
make a Term Loan shall not relieve any other Lender of its obligations to make a
Term Loan nor shall it impose any additional liability on any other Lender
hereunder. The Lenders shall have no obligation to make Term Loans hereunder
after the Borrowing Date, other than as any Lender may elect as provided in
Section 2.1.2. The Commitments are not revolving credit commitments, and the
Borrower shall not have the right to borrow, repay and reborrow the Term Loans.
2.3 Noteless Agreement; Evidence of Indebtedness.
Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Obligation of the Borrower to such Lender
resulting from each Term Loan made by such Lender, including the amount of
principal and interest payable and paid to such Lender from time to time
hereunder. The Agent shall also maintain accounts in which it will record (a)
the amount of each Term Loan made hereunder, the Interest Rate Option applicable
thereto, and the Interest Period applicable thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, and (c) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender's share thereof. The entries
maintained in the accounts maintained pursuant to this Section 2.3 shall be
prima facie evidence of the existence and amounts of the Obligation therein
recorded; provided, however, that the failure of the Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Obligation in accordance with its terms.
Any Lender may request that its Term Loans be evidenced by a promissory
note substantially in the form of Exhibit 1.1(T). In such event, the Borrower
shall execute and deliver to such Lender a Term Note dated the Borrowing Date,
payable to the order of such Lender in a face amount equal to the Commitment of
such Lender, and thereafter the Term Loans evidenced by each such Term Note and
interest thereon shall at all times (including after any assignment pursuant to
Section 10.11) be represented by one or more Term Notes payable to the order of
the payee named therein or any assignee pursuant to Section 10.11, except to the
extent that any such Lender or assignee subsequently returns any such Term Note
for cancellation and requests that
29
such Term Loans once again be evidenced as described in the immediately
prior paragraph of this Section 2.3.
2.4 Use of Proceeds.
On and after the Borrowing Date, the proceeds of the Term Loans shall
be used for general corporate purposes, including to make loans or advances to
Parent and in accordance with Section 7.1.9 [Use of Proceeds].
2.5 Borrowing Date Procedure and Request to Select Interest Rate
Options.
Except as otherwise provided herein, the Borrower may (a) designate the
Borrowing Date (which date shall be a Business Day and which date shall be on or
before January 31, 2004), (b) request the Lenders to make the Term Loans on the
Borrowing Date and (c) select the initial Interest Rate Option applicable to the
Term Loans and thereafter from time to time prior to the Expiration Date request
the Lenders to renew or convert the Interest Rate Option applicable to existing
Term Loans pursuant to Section 3.2 [Interest Periods], by delivering to the
Agent, not later than 10:00 a.m., Pittsburgh time, (i) three (3) Business Days
prior to the proposed Borrowing Date with respect to the making of the Term
Loans on the Borrowing Date or the conversion to or the renewal of the Euro-Rate
Option for any Term Loans, and (ii) one (1) Business Day prior to the making of
the Term Loans on the Borrowing Date 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 Term Loan, of a duly completed request therefore
substantially in the form of Exhibit 2.5 (each a "Rate Request") or a request
therefore by telephone immediately confirmed in writing by letter, facsimile or
telex in the form of such Exhibit, it being understood that the Agent may rely
on the authority of any individual making such a telephonic request without the
necessity of receipt of such written confirmation. Each Rate Request shall be
irrevocable and shall specify (i) the proposed Borrowing Date; (ii) the
aggregate amount of the Term Loans comprising each Borrowing Tranche, which
shall be in integral multiples of $500,000 and not less than $1,000,000 for each
Borrowing Tranche to which the Euro-Rate Option applies and in integral
multiples of $100,000 and not less than the lesser of $500,000 or the maximum
amount available for Borrowing Tranches to which the Base Rate Option applies;
(iii) whether the Euro-Rate Option or Base Rate Option shall apply to the
applicable Borrowing Tranche; and (iv) in the case of a Borrowing Tranche to
which the Euro-Rate Option applies, an appropriate Interest Period for the Term
Loans comprising such Borrowing Tranche. The Agent shall, promptly after receipt
by it of a Rate Request pursuant to this Section 2.5, notify the Lenders of its
receipt of such Rate Request and provide each Lender with a copy thereof. The
Loan Parties agree that no Lender shall have any Commitments or any other
commitment or obligation to fund any portion of the Term Loans after January 31,
2004.
2.6 Required Payments.
The principal amount of the Term Loans shall be payable in quarterly
installments on the first Business Day of each October, January, April and July
after the Borrowing Date, commencing October 1, 2004, in an amount corresponding
to the indicated percentage (set forth below) of the original principal amount
of the Term Loans:
30
-------------------------------------------------------------------------------
AMOUNT OF EACH QUARTERLY PRINCIPAL
DATE PAYMENT
-------------------------------------------------------------------------------
October 1, 2004 10%
-------------------------------------------------------------------------------
January 1, 2005 through and including 5.0%
October 1, 2005
-------------------------------------------------------------------------------
January 1, 2006 through and including 7.5%
October 1, 2006
-------------------------------------------------------------------------------
January 1, 2007 through and including 10%
April 1, 2007
-------------------------------------------------------------------------------
Expiration Date Outstanding principal amount
of Term Loans
-------------------------------------------------------------------------------
The outstanding principal amount of the Term Loans, together with
accrued interest, fees and all other Obligations payable thereon shall be due
and payable on the Expiration Date.
3. INTEREST RATES
3.1 Interest Rate Options.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Term Loans as selected by it from the Base Rate Option
or Euro-Rate Option set forth below, 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 Term 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 Term Loans
comprising any Borrowing Tranche, provided that there shall not be at any one
time outstanding more than eight (8) Borrowing Tranches in the aggregate among
all of the Term Loans accruing interest at a Euro-Rate Option. If at any time
the designated rate applicable to any Term Loan exceeds such Lender's highest
lawful rate, the rate of interest on such Term Loan shall be limited to such
Lender's highest lawful rate.
3.1.1 Interest Rate Options.
The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Term Loans:
(i) 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 1.25%, 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) Euro-Rate Option: A rate per annum (computed on
the basis of a year of 360 days and actual days elapsed) equal to the Euro-Rate
plus 2.75%.
3.1.2 Rate Quotations.
The Borrower may call the Agent on or before the date on which
a Rate Request is to be delivered to receive an indication of the rates then in
effect as to Term Loans, but it is acknowledged that such projection shall not
be binding on the Agent or the Lenders nor affect the rate of interest which
thereafter is actually in effect when the election is made.
3.2 Interest Periods.
At any time when the Borrower shall select, convert to or renew a
Euro-Rate Option, the Borrower shall notify the Agent thereof at least three (3)
Business Days prior to the effective date of such Euro-Rate Option by delivering
a Rate Request. The notice shall specify an interest period (the "Interest
Period") during which the Euro-Rate Option shall apply, such Interest Period to
be one, two, three or six Months. Notwithstanding the preceding sentence, the
following provisions shall apply to any selection of, renewal of, or conversion
to a Euro-Rate Option:
3.2.1 Ending Date and Business Day.
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;
3.2.2 Amount of Borrowing Tranche.
each Borrowing Tranche of Term Loans to which the Euro-Rate
Option applies shall be in integral multiples of $500,000 and not less than
$1,000,000;
3.2.3 Termination Before Expiration Date.
the Borrower shall not select, convert to or renew an Interest
Period for any portion of the Term Loans that would end after the Expiration
Date; and
3.2.4 Renewals.
in the case of the renewal of a Euro-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.
3.3 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:
32
3.3.1 Interest Rate.
the rate of interest for each Term Loan otherwise applicable
pursuant to Section 3.1.1 [Interest Rate Options] shall be increased by 2.0% per
annum; and
3.3.2 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 Base Rate Option plus an additional 2.0% per annum from the
time such Obligation becomes due and payable until it is paid in full.
3.3.3 Acknowledgment.
The Borrower acknowledges that the increase in rates referred
to in this Section 3.3 reflects, among other things, the fact that such Term
Loans or other amounts have become a substantially greater risk given their
default status and that the Lenders are entitled to additional compensation for
such risk and all such interest shall be payable by Borrower upon demand by
Agent. Upon the occurrence of an Event of Default, no Term Loan may be converted
to or renewed under the Euro-Rate Option.
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits
Not Available.
3.4.1 Unascertainable.
If, on any date on which a Euro-Rate would otherwise be
determined with respect to Term Loans, the Agent shall have determined that:
(i) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(ii) a contingency has occurred which materially and
adversely affects the London interbank eurodollar market relating to the
Euro-Rate,
then the Agent shall have the rights specified in Section 3.4.3 [Agent's and
Lender's Rights].
3.4.2 Illegality; Increased Costs; Deposits Not Available.
If at any time any Lender shall have determined that:
(i) the making, maintenance or funding of any Term
Loan to which a Euro-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
33
(ii) such Euro-Rate Option will not adequately and
fairly reflect the cost to such Lender of the establishment or maintenance of
any such Term Loan, or
(iii) after making all reasonable efforts, deposits
of the relevant amount in Dollars for the relevant Interest Period for a Term
Loan to which a Euro-Rate Option applies are not available to such Lender with
respect to such Term Loan in the London interbank market,
then the Agent and the Lenders shall have the rights specified in Section 3.4.3
[Agent's and Lender's Rights].
3.4.3 Agent's and Lender's Rights.
In the case of any event specified in Section 3.4.1
[Unascertainable] above, the Agent shall promptly so notify the Lenders and the
Borrower thereof, and in the case of an event specified in Section 3.4.2
[Illegality; Increased Costs; Deposits Not Available] above, such Lender shall
promptly so notify the Agent and endorse a certificate to such notice as to the
specific circumstances of such notice, and the 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 Agent, or (B) such Lender, in the case of such notice
given by such Lender, to allow the Borrower to convert to or renew a Euro-Rate
Option shall be suspended until the Agent shall have later notified the
Borrower, or such Lender shall have later notified the Agent, of the Agent's or
such Lender's, as the case may be, determination that the circumstances giving
rise to such previous determination no longer exist. If at any time the Agent
makes a determination under Section 3.4.1 and the Borrower has previously
notified the Agent of its selection of, conversion to or renewal of a Euro-Rate
Option and such Interest Rate Option has not yet gone into effect, such
notification shall be deemed to provide for the selection of, conversion to or
renewal of the Base Rate Option otherwise available with respect to such Term
Loans. If any Lender notifies the Agent of a determination under Section 3.4.2,
the Borrower shall, subject to the Borrower's indemnification Obligations under
Section 4.6.2 [Indemnity] as to any Term Loan of the Lender to which a Euro-Rate
Option applies, on the date specified in such notice either convert such Term
Loan to the Base Rate Option otherwise available with respect to such Term Loan
or prepay such Term Loan in accordance with Section 4.4 [Voluntary Prepayments].
Absent due notice from the Borrower of conversion or prepayment, such Term Loan
shall automatically be converted to the Base Rate Option otherwise available
with respect to such Term Loan upon such specified date.
3.5 Selection of Interest Rate Options.
If the Borrower fails to select a new Interest Period to apply to any
Borrowing Tranche of Term Loans under the Euro-Rate Option at the expiration of
an existing Interest Period applicable to such Borrowing Tranche in accordance
with the provisions of Section 3.2 [Interest Periods], the Borrower shall be
deemed to have converted such Borrowing Tranche to the Base Rate Option
commencing upon the last day of the existing Interest Period.
34
4. PAYMENTS
4.1 Payments.
All payments and prepayments to be made in respect of principal,
interest, 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 Agent at the Principal Office for the ratable
accounts of the Lenders with respect to the Term Loans, in U.S. Dollars and in
immediately available funds, and the 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 Agent and
such payments are not distributed to the Lenders on the same day received by the
Agent, the Agent shall pay the Lenders the Federal Funds Effective Rate with
respect to the amount of such payments for each day held by the Agent and not
distributed to the Lenders. The 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
Term Loans and other amounts owing under this Agreement and shall be deemed an
"account stated."
4.2 Pro Rata Treatment of Lenders.
The Term Loans shall be allocated to each Lender according to its
Ratable Share, as such Ratable Share relates specifically to the Commitments of
all Lenders having Commitments. Each selection of, conversion to or renewal of
any Interest Rate Option applicable to Term Loans and each payment or prepayment
by the Borrower with respect to principal or interest on the Term Loans or other
fees related thereto (except for the Agent's Fee) or amounts due from the
Borrower hereunder to the Lenders with respect to the Term Loans, shall (except
as provided in Section 3.4.3 [Agent's and Lender's Rights] in the case of an
event specified in Sections 3.4 [Euro-Rate Unascertainable, etc.], 4.4.2
[Replacement of a Lender] or 4.6 [Additional Compensation in Certain
Circumstances]) be made in proportion to the Ratable Share of Term Loans
outstanding from each Lender (and shall, with respect to the accrual of interest
on Term Loans made pursuant to Section 2.1.2 [Increase in Commitments], take
into account the duration of such Term Loans outstanding). Amounts due from the
Borrower hereunder which are not otherwise related to the Term Loans shall be
made in proportion to each Lender's Ratable Share with respect to the Term Loans
outstanding.
4.3 Interest Payment Dates.
Interest on Term Loans to which the Base Rate Option applies shall be
due and payable in arrears on the first Business Day of each July, October,
January and April after the date hereof, and on the Expiration Date, or upon
acceleration of the Term Loans. Interest on Term Loans to which the Euro-Rate
Option applies shall be due and payable on the last day of each Interest Period
for those Term Loans and, if such Interest Period is longer than three (3)
Months, also on the date that is three (3) Months after the commencement of such
Interest Period (and if applicable, the date that is six (6) Months after the
commencement of such Interest
35
Period) of such Interest Period, and on the Expiration Date, or upon
acceleration of the Term Loans. Interest on the principal amount of the Term
Loans 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 maturity date, upon acceleration or otherwise).
4.4 Voluntary Prepayments.
4.4.1 Right to Prepay.
The Borrower shall have the right at its option from time to
time to prepay the Term Loans in whole or part without premium or penalty
(except as provided in Section 4.4.2 [Replacement of a Lender] below or in
Section 4.6 [Additional Compensation in Certain Circumstances]):
(i) on the same day by 1:00 p.m., Pittsburgh time
with respect to Term Loans to which the Base Rate Option applies,
(ii) on the last day of the applicable Interest
Period with respect to Term Loans to which a Euro-Rate Option applies,
(iii) on the date specified in a notice by any Lender
pursuant to Section 3.4 [Euro-Rate Unascertainable, etc.] with respect to any
Term Loan to which a Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the Term
Loans, it shall provide a prepayment notice to the Agent by 1:00 p.m.,
Pittsburgh time, at least three (3) Business Days prior to the date of
prepayment of the Term Loans, setting forth the following information:
(y) the date, which shall be a Business Day, on which the
proposed prepayment is to be made (the "Prepayment Date"); and
(z) the total principal amount of such prepayment, which shall
not be less than $5,000,000 and in increments of $1,000,000 above
$5,000,000.
All prepayment notices shall be irrevocable. The principal
amount of the Term Loans for which a prepayment notice is given, together with
interest on such principal amount, 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.
Upon its receipt of any notice of prepayment of Term Loans
pursuant to this Section 4.4.1, the Agent shall promptly give the Lenders notice
of the amount of prepayment specified in such notice of prepayment.
Except as provided in Section 3.4.3 [Agent's and Lender's
Rights], if the Borrower prepays Term Loans but fails to specify the applicable
Borrowing Tranche which the Borrower is prepaying, the prepayment shall be
applied (i) first to Term Loans to which the Base Rate Option applies, and (ii)
then to Term Loans to which the Euro-Rate Option applies. Any
36
prepayment hereunder shall be subject to the Borrower's Obligation to indemnify
the Lenders under Section 4.6.2 [Indemnity]. All prepayments pursuant to this
Section 4.4.1 shall be applied to payment in full of the principal amount of the
Term Loans by application to the unpaid installments of principal in the order
of scheduled maturities.
4.4.2 Replacement of a Lender.
In the event any Lender (i) gives notice under Section 3.4
[Euro-Rate Unascertainable, etc.] or Section 4.6.1 [Increased Costs, etc.], or
(ii) becomes subject to the control of an Official Body (other than normal and
customary supervision), then the Borrower shall have the right at its option,
with the consent of the Agent, which shall not be unreasonably withheld (except
that during any period when an Event of Default exists and is continuing, the
Agent may withhold such consent in its sole discretion), to replace such Lender
in accordance with the proviso at the end of this Section 4.4.2, and
simultaneously therewith, to prepay the Term Loans of such Lender in whole,
together with all interest and fees accrued thereon and all other amounts due
and payable to such Lender under the Loan Documents, and terminate such Lender's
Commitment within ninety (90) days after (y) receipt of such Lender's notice
under Section 3.4 [Euro-Rate Unascertainable, etc.] or 4.6.1 [Increased Costs,
etc.], or (z) the date such Lender became subject to the control of an Official
Body, as applicable; provided that the Borrower shall also pay to such Lender at
the time of such prepayment any amounts required under Section 4.6 [Additional
Compensation in Certain Circumstances] (except that the Borrower shall not be
required to indemnify such Lender for liabilities, losses or expenses under
Section 4.6.2(i) sustained by such Lender as a consequence of the prepayment of
the Term Loans of such Lender in accordance with this Section 4.4.2 on a day
other than the last day of an Interest Period with respect to Term Loans to
which a Euro-Rate Option applies if the Term Loans of such Lender are being
prepaid because such Lender has determined that the making, maintenance or
funding of such Term Loans by such Lender under the Euro-Rate Option has been
made unlawful or because such Lender has become subject to the control of an
Official Body) and any accrued interest due on such amount and any related fees;
provided, however, that the Commitment and any Term Loan of such Lender shall be
provided by one or more of the remaining Lenders at its sole discretion or a
replacement lender acceptable to the Agent. Notwithstanding the foregoing, the
Agent may only be replaced subject to the requirements of Section 9.14
[Successor Agent].
4.4.3 Change of Lending Office.
Each Lender agrees that upon the occurrence of any event
giving rise to increased costs or other special payments under Section 3.4.2
[Illegality, etc.] or 4.6.1 [Increased Costs, etc.] with respect to such Lender,
it will if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Term Loan affected by such event, provided that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, in such Lender's good faith determination, with the
object of avoiding the consequence of the event giving rise to the operation of
such Section. Nothing in this Section 4.4.3 shall affect or postpone any of the
Obligations of the Borrower or any other Loan Party or the rights of any Agent
or any Lender provided in this Agreement.
37
4.5 Mandatory Prepayments.
4.5.1 Sale of Assets.
Within five (5) Business Days of any sale, transfer, or lease
of assets authorized by Section 7.2.4 (iv) [Disposition of Assets or
Subsidiaries], the Borrower shall make a mandatory prepayment of principal on
the Term Loans equal to the Net Cash Proceeds of such sale (as estimated in good
faith by the Borrower), together with accrued interest on such principal amount.
All prepayments pursuant to this Section 4.5.1 shall be applied to payment in
full of the principal amount of the Term Loans by application to the unpaid
installments of principal in the inverse order of scheduled maturities. Any
prepayment hereunder shall be subject to the Borrower's obligation to the
Lenders under Section 4.6.2 [Indemnity].
4.5.2 Issuance of Certain Debt; Issuance of Equity or Hybrid
Securities.
Within five (5) Business Days of the issuance by the Borrower
or any Subsidiary of the Borrower of any debt security, equity security, or
Hybrid Security for cash proceeds or of the incurrence of any Indebtedness
(other than Indebtedness permitted under clauses (ii) through (vi) inclusive of
Section 7.2.1) by the Borrower or any Subsidiary of the Borrower, the Borrower
shall make a mandatory prepayment of principal on the Term Loans equal to 100%
of the Net Cash Proceeds of any such debt security, equity security, Hybrid
Security or Indebtedness, together with accrued interest on such principal
amount. All prepayments pursuant to this Section 4.5.2 shall be applied to
payment in full of the principal amount of the Term Loans by application to the
unpaid installments of principal in the inverse order of scheduled maturities.
Any prepayment hereunder shall be subject to the Borrower's obligation to the
Lenders under Section 4.6.2 [Indemnity].
4.5.3 Application Among Interest Rate Options.
All prepayments required pursuant to this Section 4.5 shall
first be applied among the Interest Rate Options to the principal amount of the
Loans subject to the Base Rate Option, then to Loans subject to a Euro-Rate
Option. In accordance with Section 4.6.2 [Indemnity], the Borrower shall
indemnify the Lenders for any loss or expense, including loss of margin,
incurred with respect to any such prepayments applied against Loans subject to a
Euro-Rate Option on any day other than the last day of the applicable Interest
Period.
4.6 Additional Compensation in Certain Circumstances.
4.6.1 Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc.
If any Law, guideline or interpretation or any change in any
Law, guideline or interpretation or application thereof by any Official Body
charged with the interpretation or administration thereof or compliance with any
request or directive (whether or not having the force of Law) of any central
bank or other Official Body:
38
(i) subjects any Lender to any tax or changes the
basis of taxation with respect to this Agreement or the Term Loans or payments
by the Borrower of principal, interest or other amounts due from the Borrower
hereunder (except for taxes on the overall net income of such Lender),
(ii) imposes, modifies or deems applicable any
capital adequacy or similar requirement (A) against assets (funded or
contingent) of, or other credits or commitments to extend credit extended by,
any Lender, or (B) otherwise applicable to the obligations of any Lender under
this Agreement, or
(iii) imposes, modifies or deems applicable any
reserve, special deposit or similar requirement against credits or commitments
to extend credit extended by, or assets (funded or contingent) of, deposits with
or for the account of, or other acquisitions of funds by, any Lender
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender with respect to this Agreement, or the making, maintenance or funding of
any part of the Term Loans (or, in the case of any capital adequacy or similar
requirement, to have the effect of reducing the rate of return on any Lender's
capital, taking into consideration such Lender's customary policies with respect
to capital adequacy) by an amount which such Lender in its sole discretion deems
to be material, such Lender shall from time to time notify the Borrower and the
Agent of the amount determined in good faith (using any averaging and
attribution methods employed in good faith) by such Lender to be necessary to
compensate such Lender for such increase in cost, reduction of income,
additional expense or reduced rate of return. 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.
4.6.2 Indemnity.
In addition to the compensation required by Section 4.6.1
[Increased Costs, etc.], the Borrower shall indemnify each Lender against all
liabilities, losses or expenses (including loss of margin, any loss or expense
incurred in liquidating or employing deposits from third parties and any loss or
expense incurred in connection with funds acquired by a Lender to fund or
maintain Term Loans subject to a Euro-Rate Option) which such Lender sustains or
incurs as a consequence of any
(i) payment, prepayment, conversion or renewal of the
Term Loans to which a Euro-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 Rate Request under
Section 2.5 [Borrowing Date Procedure and Request to Select Interest Rate
Options] or Section 3.2 [Interest Periods] or notice relating to prepayments
under Section 4.4 [Voluntary Prepayments] or Section 4.5 [Mandatory
Prepayments],
39
(iii) attempt by the Borrower to revoke (expressly,
by later inconsistent notices or otherwise) in whole or part the request for the
making of the Term Loans under Section 2.5 [Borrowing Date Procedure and Request
to Select Interest Rate Options], or
(iv) 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 of or interest on the Term Loans 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.
4.7 Taxes.
4.7.1 No Deductions.
All payments made by the Borrower hereunder shall be made free
and clear of and without deduction for any present or future taxes, levies,
imposts, deductions, charges, or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on the net income of the Lenders and all income
and franchise taxes of the United States applicable to the Lenders (all such
non-excluded taxes, levies, imposts deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable under
the Credit Agreement, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this subsection), the Agent 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 tax authority or other authority in
accordance with applicable law.
4.7.2 Stamp Taxes.
In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges, or
similar levies which arise from any payment made hereunder or from the
execution, delivery, or registration or otherwise with respect to, the Credit
Agreement (hereinafter referred to as "Other Taxes").
4.7.3 Indemnification for Taxes Paid by Lenders.
The Borrower shall indemnify the Lenders for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this subsection) paid by
such Lender and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto, whether or
40
not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Lender makes
written demand therefor.
4.7.4 Certificate.
Within 30 days after the date of any payment of any Taxes by
the Borrower, the Borrower shall furnish to the Agent for the benefit of the
Lenders the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment by the Borrower, the
Borrower shall, if so requested by any Lender, provide a certificate of an
officer of the Borrower to that effect.
4.7.5 Survival.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in subsections 4.7.1 [No Deductions] through 4.7.4 [Certificate] shall survive
the payment in full of the Term Loan made to Borrower by any Lender under the
Agreement.
4.7.6 Refund and Contest.
If the Borrower determines in good faith that a reasonable
basis exists for contesting any Taxes or Other Taxes with respect to which the
Borrower was required to take the actions specified in the second sentence of
subsection 4.7.1 [No Deductions], the relevant Lender (to the extent such Lender
reasonably determines in good faith that it will not suffer any adverse effect
as a result thereof) shall cooperate with the Borrower in challenging the
imposition of such Taxes or Other Taxes at the Borrower's expense if so
requested by the Borrower in writing. If such Lender receives a refund of Taxes
or Other Taxes for which the payment has been made by the Borrower pursuant to
this Agreement, which refund in the good faith judgment of such Lender is
attributable to the Borrower, then such Lender shall reimburse the Borrower for
such amount as such Lender determines to be the proportion of the refund as will
leave it, after such reimbursement, in no better or worse position than it would
have been in if the payment had not been required. No Lender nor any Agent shall
be obliged to disclose information regarding its tax affairs or computations to
Borrower in connection with this Section 4.7.6 or any other provision of Section
4.7 [Taxes].
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties.
The Borrower represents and warrants to the Agent and each of the
Lenders as follows:
5.1.1 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
41
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 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 and where the failure to so qualify could reasonably be
expected to result in a Material Adverse Change.
5.1.2 LLC Interests of Borrower; Subsidiaries; and Subsidiary
Shares.
Schedule 5.1.2 states the name of each of the Borrower's
Subsidiaries, whether such Subsidiary is a Significant Subsidiary, Inactive
Subsidiary or a Special Subsidiary, 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. Schedule 5.1.2 also sets
forth the jurisdiction of organization of the Borrower, its outstanding limited
liability company interests, interests assigned to managers thereof and the
voting rights associated therewith (the "Borrower LLC Interests"). 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 in favor of the Agent
for the benefit of the Lenders under the Loan Documents. AWAC has good and
marketable title to all of the Borrower LLC Interests it purports to own, free
and clear in each case of any Lien. All Borrower LLC Interests, 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, LLC Interests and Borrower 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 Borrower LLC
Interests, Subsidiary Shares, Partnership Interests or LLC Interests except as
indicated on Schedule 5.1.2.
5.1.3 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.
The Borrower and each Subsidiary of the Borrower party to the Acquisition
Documents has full power to enter into, execute, deliver and perform the
Acquisition Documents to which it is a party, and all such actions have been
duly authorized by all necessary proceedings on its respective part. The
Borrower and each Subsidiary of the Borrower party to the North ▇▇▇▇▇▇▇▇
Contribution Documents has full power to enter into, execute, deliver and
perform the North ▇▇▇▇▇▇▇▇ Contribution Documents to which it is a party, and
all such actions have been duly authorized by all necessary proceedings on its
part.
42
5.1.4 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 of 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. The Acquisition Documents have been duly and
validly executed and delivered by the Borrower and each Subsidiary of the
Borrower party thereto. The Acquisition Documents constitute the legal, valid
and binding obligation of the Borrower and each Subsidiary of the Borrower party
thereto, enforceable against each such Person in accordance with the terms
thereof, except to the extent that enforceability of the Acquisition Documents
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar law, affecting the enforceability of creditors' rights generally or
limiting the right of specific performance. A complete copy of the Acquisition
Documents has been delivered to the Agent. Prior to the Borrowing Date, the
North ▇▇▇▇▇▇▇▇ Contribution Documents shall have been duly and validly executed
and delivered by the Borrower and each of its Subsidiaries party thereto. The
North ▇▇▇▇▇▇▇▇ Contribution Documents shall constitute a legal, valid and
binding obligation of the Borrower and each of its Subsidiaries party thereto,
from and after the date of delivery thereof, enforceable against each such
Person in accordance with the terms thereof, except to the extent that
enforceability of the North ▇▇▇▇▇▇▇▇ Contribution Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar law,
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance. Prior to the Borrowing Date, a complete copy of
the North ▇▇▇▇▇▇▇▇ Contribution Documents will be delivered to the Agent.
5.1.5 No Conflict.
Neither the execution and delivery of this Agreement, the
other Loan Documents or the North ▇▇▇▇▇▇▇▇ Contribution 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 any Subsidiary 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 Subsidiary of any Loan Party, is a party or by
which any of the foregoing Persons is bound or to which any of the foregoing
Persons is subject, or result in the creation or enforcement of any Lien, charge
or encumbrance whatsoever upon any property (now or hereafter acquired) of any
Loan Party or any Subsidiary of any Loan Party (other than Liens granted in the
Collateral in accordance with the Loan Documents).
43
5.1.6 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 could reasonably be expected to
result in a Material Adverse Change. None of the Loan Parties or any Subsidiary
of any Loan Party is in violation of any order, writ, injunction or any decree
of any Official Body which could reasonably be expected to result in a Material
Adverse Change.
5.1.7 Financial Statements.
(i) Borrower Historical Statements. The Borrower has
delivered to the Agent copies of its audited consolidated year-end financial
statements for and as of the end of the fiscal year ended December 31, 2002 (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.
(ii) Accuracy of Financial Statements. Neither the
Borrower nor any Subsidiary of the Borrower has on the Closing Date 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 could
reasonably be expected to result in a Material Adverse Change. Since December
31, 2002, no Material Adverse Change has occurred, except as set forth on
Schedule 5.1.7.
(iii) Financial Projections. The Borrower has
delivered to the Agent financial projections of the Borrower and its
Subsidiaries, on a consolidated and consolidating basis, for the period July 1,
2003, through and including December 31, 2006, 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, in
all material respects on a consolidated basis, the liabilities of the Borrower
and its Subsidiaries upon consummation of the transactions contemplated hereby
as of the Closing Date and upon consummation of the transactions contemplated by
the North ▇▇▇▇▇▇▇▇ Contribution Documents and under the Loan Documents as of the
Borrowing Date.
5.1.8 Use of Proceeds; Margin Stock.
(i) General.
The Loan Parties shall use the proceeds of the Term
Loans in accordance with Sections 2.4 [Use of Proceeds] and 7.1.9 [Use of
Proceeds].
44
(ii) Margin Stock.
None of the Loan Parties nor any Subsidiary 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 Term 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 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 nor 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.
5.1.9 Full Disclosure.
Neither this Agreement nor any other Loan Document, nor the
Acquisition Documents, nor the North ▇▇▇▇▇▇▇▇ Contribution Documents, nor any
certificate, statement, agreement or other documents furnished to the Agent or
any Lender in connection herewith, with the Acquisition Documents or with the
North ▇▇▇▇▇▇▇▇ Contribution Documents, contains with respect to the Borrower and
its Subsidiaries 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 the business, financial condition or results of operations of the
Borrower and its Subsidiaries taken as a whole which has not been set forth in
this Agreement or in the certificates, statements, agreements or other documents
furnished in writing to the Agent and the Lenders prior to or at the date hereof
in connection with the transactions contemplated hereby.
5.1.10 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.
5.1.11 Consents and Approvals.
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
45
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 5.1.11, all of which shall have been obtained or made on or prior to
the Closing Date except as otherwise indicated on Schedule 5.1.11.
5.1.12 No Event of Default; Compliance With Instruments and
Material Contracts.
On the Closing Date, 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 pursuant to the Loan Documents and after giving
effect to the transactions contemplated by the North ▇▇▇▇▇▇▇▇ Contribution
Documents, which constitutes an Event of Default or Potential Default. No event
has occurred and is continuing and no condition exists or will exist, after
giving effect to the transactions contemplated by the North ▇▇▇▇▇▇▇▇
Contribution Documents and the borrowings or other extensions of credit to be
made on the Borrowing Date pursuant to the Loan Documents, which constitutes an
Event of Default or Potential Default. None of the Loan Parties or any
Subsidiary 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 could reasonably be expected to result in a Material
Adverse Change. All Material Contracts described in the definition of "Material
Contracts" to which any Loan Party or any Subsidiary of any Loan Party is a
party or by which any Loan Party or Subsidiary of any Loan Party is bound are
valid, binding and enforceable upon such Loan Party or Subsidiary and to the
best knowledge of the Borrower upon each of the other parties thereto in
accordance with their respective terms and there is no default by any Loan Party
or any Subsidiary of any Loan Party under any Material Contract nor, to the Loan
Parties' knowledge, any default thereunder with respect to parties thereto other
than any Loan Party or Subsidiary of a Loan Party except in each case to the
extent the same could not reasonably be expected to result in a Material Adverse
Change. 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 reasonably be expected to result
in a Material Adverse Change.
5.1.13 Insurance.
No notice has been given or claim made and no grounds exist to
cancel or avoid any insurance policies or bonds to which the Loan Parties are
subject or to reduce the coverage provided thereby. The Loan Parties are subject
to insurance policies and bonds providing 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.
5.1.14 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
46
addressed in Section 5.1.18 [Environmental Matters]) in all jurisdictions in
which any Loan Party or Subsidiary of any Loan Party is doing business except
where the failure to do so could not reasonably be expected to result in a
Material Adverse Change.
5.1.15 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 Subsidiary of any Loan Party is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
5.1.16 Plans and Benefit Arrangements.
(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 (i) have fulfilled in all material respects their obligations under
the minimum funding standards of ERISA, (ii) have not incurred any liability to
the PBGC, and (iii) have not had asserted against them any penalty for failure
to fulfill the minimum funding requirements of ERISA. All Plans, Benefit
Arrangements and Multiemployer Plans have been administered in accordance with
their terms and applicable Law.
(ii) 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.
(iii) 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.
47
5.1.17 Employment Matters.
Each of the Loan Parties and each of their Subsidiaries is in
substantial 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 could reasonably be expected to result
in 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 could reasonably be expected to result in a Material Adverse Change.
5.1.18 Environmental Matters.
Except as set forth on Schedule 5.1.18:
(a) the Loan Parties and their Subsidiaries are and
have been in substantial compliance with all Environmental Laws, except where
the failure to so comply could not reasonably be expected to result in a
Material Adverse Change;
(b) the Loan Parties and their Subsidiaries hold and
are operating in substantial compliance with Environmental Permits, except where
the failure to so comply could not reasonably be expected to result in a
Material Adverse Change;
(c) neither any Property of any Loan Party or any
Subsidiary of any Loan Party nor their respective operations conducted thereon
violates any order of any Official Body made pursuant to Environmental Laws
except for noncompliance with respect thereto which could not reasonably be
expected to result in a Material Adverse Change;
(d) there are no pending or, to the knowledge of any
Loan Party, threatened Environmental Claims against any Property of any Loan
Party or any Subsidiary of any Loan Party nor against any Loan Party or any
Subsidiary of any Loan Party which could reasonably be expected to result in a
Material Adverse Change; and
(e) there are no pending or, to the knowledge of any
Loan Party, threatened Environmental Complaints against any Property of any Loan
Party or any Subsidiary of any Loan Party nor against any Loan Party or any
Subsidiary of any Loan Party which could reasonably be expected to result in a
Material Adverse Change.
5.1.19 Senior Debt Status.
The Obligations of each Loan Party under this Agreement, 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 the AWR
Senior Notes and 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
48
Party or Subsidiary of any Loan Party which secures indebtedness or other
obligations of any Person except for Permitted Liens.
5.1.20 Title to Properties.
Each Loan Party and each Subsidiary of each Loan Party has
good and marketable title to or valid leasehold interest in all material
properties, assets and other rights which it purports to own or lease or which
are reflected as owned or leased on its books and records, free and clear of all
Liens and encumbrances except Permitted Liens, and subject to the terms and
conditions of the applicable leases.
5.1.21 Security Interests.
The Liens and security interests granted for the benefit of
the Agent and the Lenders pursuant to the Collateral Documents constitute and
will continue to constitute 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 only
to Permitted Liens. Financing statements relating to said security interests
have been filed in each office and, in each jurisdiction where required in order
to perfect the security interests described above, possession has been taken of
all certificates or instruments evidencing the Collateral, and all such action
as is necessary or advisable to establish such rights of the Lenders has been
taken, and there is 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 months prior to each
five-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.
5.1.22 Coastal Agreement.
Canyon Fuel is a "Buyer Indemnitee" under the Coastal
Agreement and, as such, has the rights of an "Indemnified Party" under the
Coastal Agreement. Consummation of the Acquisition Transactions did not alter
the rights of Canyon Fuel under the Coastal Agreement.
5.1.23 Solvency.
On the Closing Date, on the Borrowing Date, and at the time of
the borrowing of the Term Loans the Borrower and each other Loan Party are
Solvent after giving effect to the transactions contemplated by the Loan
Documents and any incurrence of Indebtedness and all other Obligations.
5.1.24 Anti-Terrorism Laws.
5.1.24.1 General.
None of the Loan Parties nor or any Affiliate of any
Loan Party, is in violation of any Anti-Terrorism Law or engages in or conspires
to engage in any transaction
49
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.
5.1.24.2 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 Term Loans 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 with which any Lender is
prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law;
(iv) a Person that commits, threatens or
conspires to commit or supports "terrorism" as defined in the Executive Order
No. 13224;
(v) a Person 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 who is affiliated with a
Person 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 Term Loans 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.
5.1.25 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 and franchises 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 and
franchises of each Loan Party and each Subsidiary of each Loan Party are listed
and described on Schedule 5.1.25.
50
6. CONDITIONS OF LENDING
The obligation of each Lender to make the Term Loans hereunder is
subject to the performance by the Borrower of its Obligations to be performed
hereunder at or prior to the making of the Term Loans and to the satisfaction of
the following further conditions:
6.1 Conditions to Closing.
On the Closing Date:
6.1.1 Officer's Certificate.
The representations and warranties of the Borrower contained
in Section 5 [Representations and Warranties] and of each Loan Party 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 Agent for the benefit of each Lender a certificate of the
Borrower dated the Closing Date and signed by the Chief Executive Officer,
President, Chief Financial Officer, or other Authorized Officer of the Borrower
and each other Loan Party to each such effect.
6.1.2 Secretary's Certificate.
There shall be delivered to the 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 Agent and each Lender may conclusively
rely; and
(iii) a copy of each Loan Party's organizational
documents, including its certificate of incorporation and bylaws, certificate of
limited partnership and partnership agreement, or limited liability company
certificate and agreement, as the case may be, as in effect on the Closing Date
and, in the case of the certificate of incorporation, limited partnership
certificate or limited liability company certificate, 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 the state of its
formation and each jurisdiction where it conducts business.
51
6.1.3 Delivery of Loan Documents.
This Agreement, the Guaranty Agreement, the Collateral
Documents, and the other Loan Documents shall have been duly executed and
delivered to the Agent, together with all appropriate financing statements and
all other instruments and Collateral required to be delivered to the Agent for
the benefit of the Lenders under the Collateral Documents.
6.1.4 Opinion of Counsel.
There shall be delivered to the Agent for the benefit of each
Lender a written opinion of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
General Counsel for the Loan Parties (who may rely on the opinions of such other
counsel as may be acceptable to the Agent), dated the Closing Date and in form
and substance satisfactory to the Agent and its counsel:
(i) as to the matters set forth in Exhibit 6.1.4; and
(ii) as to such other matters incident to the
transactions contemplated herein as the Agent may reasonably request.
6.1.5 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 Agent and counsel for the Agent,
and the 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 Agent and said
counsel, as the Agent or said counsel may reasonably request.
6.1.6 Payment of Fees.
The Borrower shall have paid or caused to be paid all fees and
expenses required to be paid, on or before the Closing Date, by the Borrower
pursuant to the Fee Letter.
6.1.7 Consents.
All material consents and approvals required to effectuate the
transactions contemplated by the Loan Documents shall have been obtained.
6.1.8 Officer's Certificate Regarding No Material Adverse
Change.
There shall have been delivered to the Agent for the benefit
of each Lender a certificate dated the Closing Date, in form and substance
satisfactory to the Agent, and signed by the Chief Executive Officer, the
President, Chief Financial Officer or other Authorized Officer of the Borrower
and each other Loan Party certifying the following: (i) since December 31, 2002,
no Material Adverse Change shall have occurred; (ii) since December 31, 2002,
there shall have been no material change in the management of the Borrower or
any other Loan Party; and (iii) each of the Borrower and each other Loan Party
is Solvent.
52
6.1.9 No Violation of Laws.
The making of the Term Loans, and the consummation of the
transactions contemplated hereby shall not contravene any Law applicable to any
Loan Party or any of the Lenders.
6.1.10 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 or the other Loan Documents, or the
consummation of the transactions contemplated hereby or thereby, or which, in
the Agent's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents .
6.1.11 Insurance.
The Borrower shall have delivered to the Agent evidence of the
insurance required under the Loan Documents and evidence acceptable to the Agent
that adequate insurance in compliance with Section 7.1.3 [Maintenance of
Insurance] is in full force and effect and that all premiums then due thereon
have been paid.
6.1.12 Satisfactory Environmental Review.
The environmental condition of the Loan Parties' and their
Subsidiaries' assets shall be satisfactory to the Required Lenders in all
respects.
6.1.13 UCC, Lien and Judgment Searches.
The Agent shall have received searches under the Uniform
Commercial Code, lien, tax lien, litigation and judgment searches against each
Loan Party, each Subsidiary of each Loan Party, in each case in the jurisdiction
of each such Person's formation and in each jurisdiction where each such person
conducts business or owns or operates assets and the results of such searches
shall be satisfactory in form, scope and substance to the Agent.
6.1.14 Filing Receipts.
The Agent shall have received (1) copies of all filing
receipts and acknowledgments issued by any governmental authority to evidence
any recordation or filing necessary to perfect the Lien of the Lenders on the
Collateral or other satisfactory evidence of such recordation and filing and (2)
evidence in a form acceptable to the Agent that such Lien constitutes a Prior
Security Interest in favor of the Lenders.
6.2 Conditions to Borrowing.
On the Borrowing Date:
53
6.2.1 Officer's Certificate.
After giving effect to the consummation of the transactions
contemplated by the North ▇▇▇▇▇▇▇▇ Contribution and the making of the Term
Loans: (i) the representations and warranties of the Borrower contained in
Section 5 [Representations and Warranties] and of each Loan Party in each of the
other Loan Documents shall be true and accurate on and as of the Borrowing 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),
(ii) each of the Loan Parties shall have performed and complied with all
covenants and conditions hereof and thereof, and (iii) no Event of Default or
Potential Default shall have occurred and be continuing or shall exist; and
there shall be delivered to the Agent for the benefit of each Lender a
certificate of the Borrower dated the Borrowing Date and signed by the Chief
Executive Officer, President, Chief Financial Officer, or other Authorized
Officer of the Borrower and each other Loan Party to each such effect.
6.2.2 Secretary's Certificate.
There shall be delivered to the Agent for the benefit of each
Lender a certificate dated the Borrowing 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 Agent and each Lender may conclusively
rely; and
(iii) a copy of each Loan Party's organizational
documents, including its certificate of incorporation and bylaws, certificate of
limited partnership and partnership agreement, or limited liability company
certificate and agreement, as the case may be, as in effect on the Borrowing
Date and, in the case of the certificate of incorporation, limited partnership
certificate or limited liability company certificate, 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 the state of its
formation and each jurisdiction where it conducts business.
6.2.3 Delivery of Loan Documents.
The Term Notes and the other Loan Documents shall have been
duly executed and delivered to the Agent, together with all appropriate
financing statements and all other instruments and Collateral required to be
delivered to the Agent for the benefit of the Lenders under the Collateral
Documents.
54
6.2.4 Opinion of Counsel.
There shall be delivered to the Agent for the benefit of each
Lender a written opinion of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
General Counsel for the Loan Parties (who may rely on the opinions of such other
counsel as may be acceptable to the Agent), dated the Borrowing Date and in form
and substance satisfactory to the Agent and its counsel:
(i) as to the matters set forth in Exhibit 6.2.4; and
(ii) as to such other matters incident to the
transactions contemplated herein as the Agent may reasonably request.
6.2.5 Legal Details.
All legal details and proceedings in connection with (i) the
transactions contemplated by this Agreement and the other Loan Documents and
(ii) the transactions contemplated by the North ▇▇▇▇▇▇▇▇ Contribution Documents,
shall be in form and substance satisfactory to the Agent and counsel for the
Agent, and the 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 Agent and said
counsel, as the Agent or said counsel may reasonably request.
6.2.6 Payment of Fees.
The Borrower shall have paid or caused to be paid all fees and
expenses required to be paid by the Borrower on or prior to the Borrowing Date
under the Loan Documents or pursuant to the Fee Letter.
6.2.7 Consents.
All material consents and approvals required to effectuate the
transactions contemplated by the Loan Documents, the making of the Term Loans
and by the North ▇▇▇▇▇▇▇▇ Contribution Documents shall have been obtained.
6.2.8 Officer's Certificate Regarding No Material Adverse
Change.
There shall have been delivered to the Agent for the benefit
of each Lender a certificate dated the Borrowing Date, in form and substance
satisfactory to the Agent, and signed by the Chief Executive Officer, the
President, Chief Financial Officer or other Authorized Officer of the Borrower
and each other Loan Party certifying the following: (i) since December 31, 2002
and after giving effect to the North ▇▇▇▇▇▇▇▇ Contribution, the transactions
contemplated thereby, and the making of the Term Loans, no Material Adverse
Change shall have occurred; (ii) since December 31, 2002 and after giving effect
to the North ▇▇▇▇▇▇▇▇ Contribution and the transactions contemplated hereby,
there shall have been no material change in the management of the Borrower or
any other Loan Party; and (iii) after giving effect to the North ▇▇▇▇▇▇▇▇
Contribution, the transactions contemplated thereby, and the making of the Term
Loans, each of the Borrower and each other Loan Party is Solvent.
55
6.2.9 No Violation of Laws.
The making of the Term Loans, and the consummation of the
transactions contemplated by the Loan Documents and by the North ▇▇▇▇▇▇▇▇
Contribution shall not contravene any Law applicable to any Loan Party, any
Subsidiary of any Loan Party or any of the Lenders.
6.2.10 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 or the other Loan Documents, or the
consummation of the transactions contemplated hereby or thereby or by the North
▇▇▇▇▇▇▇▇ Contribution or the consummation of the transactions contemplated by
the North ▇▇▇▇▇▇▇▇ Contribution Documents, or which, in the Agent's discretion,
would make it inadvisable to consummate the transactions contemplated by this
Agreement or any of the other Loan Documents.
6.2.11 Insurance.
The Borrower shall have delivered to the Agent evidence of the
insurance required under the Loan Documents and evidence acceptable to the Agent
that adequate insurance in compliance with Section 7.1.3 [Maintenance of
Insurance] is in full force and effect with respect to those assets related to
the North ▇▇▇▇▇▇▇▇ Contribution and that all premiums then due thereon have been
paid.
6.2.12 UCC, Lien and Judgment Searches.
The Agent shall have received searches under the Uniform
Commercial Code, and other lien, tax lien, litigation and judgment searches as
the Agent may reasonably request against each Loan Party, each Subsidiary of
each Loan Party, and Triton, in each case in the jurisdiction of each such
Person's formation and in each jurisdiction where each such person conducts
business or owns or operates assets and the results of such searches shall be
satisfactory in form, scope and substance to the Agent.
Any liens, UCC financing statements or judgments against any
of the assets or equity interests to be acquired by the Loan Parties upon
consummation of the transactions contemplated by the North ▇▇▇▇▇▇▇▇ Contribution
Documents shall on or before the Borrowing Date be terminated and released of
record and satisfied in full, all to the satisfaction of the Agent in its sole
discretion and any Indebtedness or other obligations secured by any such liens
or judgments shall have been paid in full and all commitments to make such loans
shall have been terminated on or before the Borrowing Date, all to the
satisfaction of the Agent in its sole discretion.
6.2.13 Filing Receipts.
The Agent shall have received copies of all filing receipts
and acknowledgments issued by any governmental authority confirming the Lien of
the Lenders on the Collateral and confirming that such Lien constitutes a Prior
Security Interest in favor of the Lenders.
56
6.2.14 Consummation of Vulcan Acquisition and North ▇▇▇▇▇▇▇▇
Contribution.
(i) True and complete copies of the Vulcan
Acquisition Documents and the North ▇▇▇▇▇▇▇▇ Contribution Documents shall have
been delivered to the Agent;
(ii) The Vulcan Acquisition Documents and the North
▇▇▇▇▇▇▇▇ Contribution Documents shall be satisfactory to the Agent in its
reasonable discretion;
(iii) The acquisitions and transactions contemplated
by the Vulcan Acquisition Documents and the North ▇▇▇▇▇▇▇▇ Contribution
Documents shall have been consummated in accordance with the terms of such
documents on or prior to the Borrowing Date (which date shall be on or before
January 31, 2004);
(iv) No set of circumstances or events shall have
occurred that has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any of the Vulcan
Acquisition Documents with respect to any Person that is a party to the Vulcan
Acquisition Documents;
(v) No set of circumstances or events shall have
occurred that has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any of the North
▇▇▇▇▇▇▇▇ Contribution Documents with respect to any Person that is a party to
the North ▇▇▇▇▇▇▇▇ Contribution Documents;
(vi) An opinion from an Independent Financial Advisor
(a) shall have been delivered to the Agent, (b) shall be in form and substance
reasonably satisfactory to the Agent, and (c) shall be to the effect that the
terms (including the consideration paid by the members of the Arch Western
Group) of any lease and/or sublease, with respect to the North ▇▇▇▇▇▇▇▇ Mineral
Rights, between the applicable members of the Arch Coal Group, as lessor, and
the Borrower or a Subsidiary of the Borrower, as lessee, are fair, from a
financial point of view, to the members of the Arch Western Group and such lease
and/or sublease shall otherwise be in form and substance reasonably satisfactory
to the Agent;
(vii) The Loan Parties shall have delivered to the
Agent a certificate of the Secretary of State of the State of Delaware
evidencing the filing of the certificate of merger to consummate the Vulcan
Acquisition;
(viii) None of the members of the Arch Coal Group or
the Loan Parties shall have waived any material covenant or condition or
compliance by any Person that is a party to the Vulcan Acquisition Documents or
by Triton with any material provision of the Vulcan Acquisition Documents
without the prior written approval of the Required Lenders, and an Authorized
Officer of the Borrower shall have certified each of the foregoing matters to
the Agent for the benefit of the Agent and the Lenders and such certificate
shall be in form and substance satisfactory to the Agent;
57
(ix) None of the Loan Parties shall have waived any
material covenant or condition or compliance by any member of the Arch Coal
Group or by Triton with any material provision of the North ▇▇▇▇▇▇▇▇
Contribution Documents without the prior written approval of the Required
Lenders, and an Authorized Officer of the Borrower shall have certified each of
the foregoing matters to the Agent for the benefit of the Agent and the Lenders
and such certificate shall be in form and substance satisfactory to the Agent;
and
(x) The following shall occur to the satisfaction of
the Agent in its sole discretion:
(a) the UBS Debt shall be repaid in full;
(b) all liens and security interests
securing the UBS Debt shall have been
terminated;
(c) all commitments to lend under the
documents and agreements evidencing the UBS
Debt shall have been terminated and of no
further force and effect; and
(d) all indebtedness or other obligations
payable by Triton to any Person or Affiliate
of any Person that is a party to the Vulcan
Acquisition Documents (other than the Parent
or any Subsidiary of the Parent) shall have
been repaid or discharged in full.
6.2.15 Borrowings on Borrowing Date.
At least three (3) Business Days prior to the Borrowing Date:
(i) the Loan Parties shall have notified the Agent and the Lenders in writing of
the date, time and location of the closing of the Vulcan Acquisition and the
North ▇▇▇▇▇▇▇▇ Contribution, and (ii) the Borrower shall have delivered to the
Agent a duly completed Rate Request in accordance with Section 2.5.
6.2.16 Confirmation of Loan Documents.
Each Loan Party, shall have executed and delivered a
confirmation of Loan Documents in form and substance satisfactory to the Agent.
6.2.17 Amended and Restated Schedules.
The Borrower shall have delivered to the Agent and each Lender
amended and restated schedules to this Agreement, as applicable, to give effect
to the transactions contemplated by the North ▇▇▇▇▇▇▇▇ Contribution Documents,
with each schedule to be in form and substance satisfactory to the Required
Banks.
6.2.18 North ▇▇▇▇▇▇▇▇ EBITDDA.
The Borrower shall have delivered to the Agent and each Lender
a certificate of the Borrower dated as of the Borrowing Date and signed by its
Chief Executive
58
Officer, President or Chief Financial Officer, in form, substance and detail
together with supporting financial statements and other accounting and financial
information satisfactory to the Agent, which certifies as to and sets forth a
detailed calculation of the North ▇▇▇▇▇▇▇▇ EBITDDA for the North ▇▇▇▇▇▇▇▇
EBITDDA Period.
7. COVENANTS
7.1 Affirmative Covenants.
The Borrower covenants and agrees that until payment in full of the
Term Loans and interest thereon, satisfaction of all of the Loan Parties' other
Obligations under the Loan Documents and termination of the Commitments, the
Borrower shall, and shall cause each of its Subsidiaries to, comply at all times
with the following affirmative covenants:
7.1.1 Preservation of Existence, Etc.
The Borrower shall maintain its legal existence as a limited
liability company. The Borrower shall maintain 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 where the failure to so qualify or maintain such qualification could be
corrected without a material adverse effect on the Borrower. The Borrower shall
cause each of its Subsidiaries to maintain its legal existence as a corporation,
limited partnership or limited liability company, as the case may be except as
otherwise expressly permitted in Section 7.2.3 [Liquidations, Mergers, etc.].
The Borrower shall cause each of its Subsidiaries to maintain 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 where the failure to so qualify could not
reasonably be expected to result in a Material Adverse Change.
7.1.2 Payment of Liabilities, Including Taxes, Etc.
The Borrower shall, and shall cause each of its Subsidiaries
to, duly pay and discharge all taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which penalties attach thereto, and all
lawful claims which, if unpaid after becoming due, might become a lien or charge
upon any properties of the Borrower or any Subsidiary of the Borrower, provided
that neither the Borrower nor any Subsidiary of the Borrower shall be required
to pay any such tax, assessment, charge, levy or claim which is being contested
in good faith and by proper proceedings and with respect to which there are
proper reserves as required by GAAP, but only to the extent that failure to
discharge any such liabilities would not adversely affect the value of the
Collateral.
7.1.3 Maintenance of Insurance.
The Borrower shall, and shall cause each of its Subsidiaries
to, be subject to insurance policies which insure their respective properties
and assets against loss or damage by fire and such other insurable hazards as
such assets are commonly insured (including fire,
59
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. At the request of the Agent, the Loan Parties shall deliver to
the Agent and each of the Lenders (x) on each anniversary of the Closing Date
and such other date as the Agent shall reasonably request 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 (y) from
time to time a summary schedule indicating all insurance then in force with
respect to each of the Loan Parties.
7.1.4 Maintenance of Properties.
The Borrower shall, and shall cause each of its Subsidiaries
to, maintain and preserve all of its respective material properties, necessary
or useful in the proper conduct of the business of the Borrower or such
Subsidiary of the Borrower, in good working order and condition, ordinary wear
and tear excepted. Without limiting the generality of the foregoing, 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 and franchises 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.
7.1.5 Visitation Rights.
The Borrower shall, and shall cause each of its Subsidiaries
to, permit any of the officers or authorized employees or representatives of the
Agent or any of the Lenders to visit and inspect during normal business hours
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 each Lender shall provide the
Borrower and the Agent with reasonable notice prior to any visit or inspection.
In the event any Lender desires to conduct an audit of the Borrower or any
Subsidiary of the Borrower, such Lender shall make a reasonable effort to
conduct such audit contemporaneously with any audit to be performed by the
Agent.
7.1.6 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.
7.1.7 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
60
to Plans and Benefit Arrangements except where such failure, alone or in
conjunction with any other failure, could not reasonably be expected to 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.
7.1.8 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
7.1.8 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 could reasonably be expected to result in a Material
Adverse Change. Without limiting the generality of the foregoing, the Borrower
shall and shall cause each of its Subsidiaries to comply with all Environmental
Permits applicable to their respective operations and properties; obtain,
maintain, comply with and renew all Environmental Permits necessary for their
respective operations and properties; and manage, use and handle all Regulated
Substances in compliance with all applicable Environmental Laws, in each case,
except for such non-compliance which would not or could not reasonably be
expected to result in a Material Adverse Change.
7.1.9 Use of Proceeds.
On and after the Borrowing Date, the Borrower will use the
proceeds of the Term Loans for general corporate purposes, including to make
loans or advances to Parent subject to the terms and provisions of the Loan
Documents. The Borrower's use of the proceeds of the Term Loans shall not be for
any purpose which contravenes any applicable Law or any provision hereof.
7.1.10 Operation of Mines.
The Borrower shall, and shall cause each of its Subsidiaries
to, operate their mines in all material respects in accordance with sound coal
mining practices.
7.1.11 Maintenance of Material Contracts.
The Borrower shall, and shall cause each of its Subsidiaries
to, comply with the provisions of and to maintain in full force and effect all
material licenses and material permits required for the lawful operation of the
Borrower and each of its Subsidiaries (other than Environmental Permits which
are addressed in Section 7.1.8 [Compliance With Laws] above) and all Material
Contracts to which any such Person is a party, except where the failure to so
maintain in full force and effect a material license, material permit or
Material Contract could not be reasonably expected to result in a Material
Adverse Change.
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7.1.12 Further Assurances.
Each Loan Party shall, from time to time, at its expense,
faithfully preserve and protect the Agent's Lien on and Prior Security Interest
in the Collateral as a continuing first priority perfected Lien and shall do
such other acts and things as the 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.
7.1.13 Tax Shelter Regulations.
None of the Loan Parties intends to treat the Term Loans and
related transactions as being a "reportable transaction" (within the meaning of
Income Tax Regulation Section 1.6011-4). In the event any of the Loan Parties
determines to take any action inconsistent with such intention, the Borrower
will promptly (1) notify the Agent thereof, and (2) deliver to the Agent a duly
completed copy of IRS Form 8886 or any successor form. If the Borrower so
notifies the Agent, the Borrower acknowledges that one or more of the Lenders
may treat its Term Loans as part of a transaction that is subject to Income Tax
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records required by such Income Tax Regulation.
7.1.14 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 or the USA Patriot Act. The Borrower
shall deliver to Lenders any certification or other evidence reasonably
requested from time to time by any Lender, confirming Borrower's compliance with
this Section 7.1.14.
7.2 Negative Covenants.
The Borrower covenants and agrees that until payment in full of the
Term Loans and interest thereon, satisfaction of all of the Loan Parties' other
Obligations hereunder and termination of the Commitments, the Borrower shall,
and shall cause each of its Subsidiaries to, comply with the following negative
covenants:
7.2.1 Indebtedness.
The Borrower 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;
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(ii) unsecured Indebtedness of the Borrower payable
to the Parent;
(iii) Indebtedness under the AWR Senior Notes, and
any refinancing thereof with Permitted Additional AWR Indebtedness;
(iv) Indebtedness at any time outstanding in the
aggregate amount of not more than $25,000,000 for the Borrower and its
Subsidiaries, which Indebtedness is secured by Liens to the extent permitted by
clause (vii) of the definition of Permitted Liens;
(v) Indebtedness of any Subsidiary of the Borrower
payable to the Borrower, provided that if any Loan Party is the obligor on such
Indebtedness and such Indebtedness becomes subordinated in right of payment to
the AWR Senior Notes, such Subsidiary shall enter into an intercompany
subordination agreement on terms and conditions similar to that executed under
the AWR Senior Notes Indenture and satisfactory to the Agent; and
(vi) Indebtedness at any time outstanding in the
aggregate amount of not more than $10,000,000 for the Borrower and its
Subsidiaries, which Indebtedness: (y) is in respect of capitalized leases
assumed as part of the North ▇▇▇▇▇▇▇▇ Contribution and otherwise permitted by
Section 7.2.15, and (z) is secured by Liens to the extent permitted by clause
(xi) of the definition of Permitted Liens.
7.2.2 Liens.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, (i) at any time create, incur, assume or suffer to exist any
Lien on any of its respective property or assets, tangible or intangible, now
owned or hereafter acquired, or agree or become liable to do so, except
Permitted Liens, and (ii) at any time, directly or indirectly, enter into any
agreement (other than the AWR Senior Notes Indenture), understanding or other
arrangement which purports to prohibit or limit in any manner the ability of the
Borrower or any Subsidiary of the Borrower to grant security interests or Liens
with respect to any of its respective property or assets.
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions.
The Borrower 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 Subsidiary of the Borrower may consolidate or merge
into any other Subsidiary of the Borrower (except for Canyon Fuel);
(2) any Loan Party may acquire, whether by purchase or by
merger, (A) all of the ownership interests of another Person, (B) substantially
all of the assets of another Person or of a business or division of another
Person, or (C) any additional ownership interest in
63
Canyon Fuel (each a "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;
(ii) the business acquired, or the business conducted
by the Person whose ownership interests are being acquired, as applicable, shall
be substantially the same as one or more line or lines of business conducted by
the Loan Parties and shall comply with Section 7.2.7 [Continuation of or Change
in Business], and in the case of any merger a Loan Party shall be the surviving
entity after giving effect to such transaction;
(iii) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Permitted
Acquisition;
(iv) the Borrower and its Subsidiaries shall be in
compliance with the covenants contained in Sections 7.2.10 [Maximum Leverage
Ratio], 7.2.11 [Minimum Fixed Charge Coverage Ratio], and 7.2.12 [Minimum Net
Worth] determined on a pro forma basis after giving effect to such Permitted
Acquisition (including in such computation Indebtedness or other liabilities
assumed or incurred in connection with such Permitted Acquisition as if such
Indebtedness were incurred as of the first day of the applicable period of
determination); and
(v) in the event that a Significant Subsidiary is
acquired or formed in connection with or as a result of such acquisition or
merger, the Loan Parties shall comply, prior to or simultaneously with the
consummation of such acquisition or merger, with the provisions of Section 10.18
[Requirements for Significant Subsidiaries].
7.2.4 Dispositions of Assets or Subsidiaries.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, sell, convey, assign, lease, abandon, securitize or enter into
a securitization transaction 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, 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 the Borrower), except:
(i) transactions involving the sale of inventory or
equipment in the ordinary course of business;
(ii) any sale, transfer or lease of assets by any
wholly-owned Significant Subsidiary of the Borrower to the Borrower or to any
other wholly-owned Significant Subsidiary of the Borrower;
(iii) any sale of assets if and to the extent the Net
Cash Proceeds thereof are applied within 180 days of the consummation of such
sale to the purchase by the Borrower or a Subsidiary of substitute assets;
provided that the Borrower shall have
64
delivered to the Agent a certificate (a "Replacement Sales Certificate") of the
chief financial officer or the treasurer of the Borrower, certifying as to (x)
the amount of such Net Cash Proceeds and (y) the fact that the Borrower or a
Subsidiary shall invest such Net Cash Proceeds in substitute assets within 180
days of the date of consummation of such sale;
(iv) any other sale, transfer or lease of assets so
long as after giving effect thereto the Borrower and its Subsidiaries shall be
in compliance with the covenants contained in Sections 7.2.10 [Maximum Leverage
Ratio], 7.2.11 [Minimum Fixed Charge Coverage Ratio], and 7.2.12 [Minimum Net
Worth] determined on a pro forma basis, prior to consummating any such sale,
transfer or lease of assets, the Borrower shall have provided written notice
thereof to the Agent together with a certification of the Borrower of the
compliance of the Borrower and its Subsidiaries with such covenants, setting
forth in such certification a detailed calculation of such pro forma compliance
and the Net Cash Proceeds of such disposition shall be used to make a mandatory
prepayment of the Term Loans in accordance with Section 4.5.1; or
(v) any sale, transfer, lease or other disposition of
assets in the ordinary course of business which are obsolete or are no longer
necessary or required in the conduct of such Loan Party's or such Subsidiary's
business.
7.2.5 Affiliate Transactions.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into or carry out any transaction (including purchasing
property or services from or selling property or services to) with any Affiliate
of the Borrower unless such transaction is not otherwise prohibited by this
Agreement and is entered into in the ordinary course of business upon fair and
reasonable arm's length terms and conditions; provided, however, that: (i) this
Section 7.2.5 shall not prohibit any loan by the Borrower or any Subsidiary of
the Borrower to the Borrower or any member of the Arch Coal Group which is not
otherwise prohibited by this Agreement, and (ii) this Section 7.2.5 shall not
prohibit any dividend or distribution by the Borrower or any Subsidiary of the
Borrower to any member of the Arch Coal Group which is not otherwise prohibited
by this Agreement.
7.2.6 Subsidiaries, Partnerships and Joint Ventures.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, own or create directly or indirectly any Subsidiaries other
than (i) any Significant Subsidiary (other than Canyon Fuel) which has joined
the Guaranty Agreement as Guarantor on the Closing Date; (ii) any Subsidiary
which after the Closing Date becomes a Significant Subsidiary and which upon
becoming a Significant Subsidiary becomes a Guarantor in accordance with Section
10.18 [Requirements for Significant Subsidiaries]; and (iii) any Subsidiary
which is not a Significant Subsidiary. The Borrower shall cause any of its
Subsidiaries which at any time becomes a Significant Subsidiary to become a
Guarantor in accordance with Section 10.18. Except as shown on Schedule 7.2.6,
neither the Borrower nor any Subsidiary of the Borrower shall become or agree to
become (1) 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, or (2) a member or manager of, or hold a limited liability company
interest in, a limited liability company, except that (A) the Loan Parties may
be members or managers of, or hold limited
65
liability company interests in, other Loan Parties and (B) the Loan Parties may
make an Investment in a Permitted Joint Venture; provided, however, that the
aggregate permitted Investments in all Permitted Joint Ventures shall not at any
time exceed, for all Loan Parties and their Subsidiaries, $25,000,000.
7.2.7 Continuation of or Change in Business.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in any business other than the business substantially as
conducted and operated by the Borrower or such Subsidiary as of the Closing Date
and any business substantially related thereto, and neither the Borrower nor any
Subsidiary of the Borrower shall permit any material change in such business.
7.2.8 Plans and Benefit Arrangements.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, 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, results in liability under ERISA or which
could reasonably be expected to result in a Material Adverse Change.
7.2.9 No Restriction on Dividends.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into or be bound by any agreement which prohibits or
restricts, in any manner, the payment of dividends or other distributions
(whether in cash, securities, property or otherwise), the incurrence of
Indebtedness by the Borrower or any Subsidiary of the Borrower which is payable
to Parent or the making of any loan to the Parent by the Borrower any Subsidiary
of the Borrower other than this Agreement, the restrictions applicable to Canyon
Fuel set forth in the Canyon Fuel LLC Agreement, the restrictions applicable to
the Borrower set forth in the Arch Western LLC Agreement, and the restrictions
set forth in the AWR Senior Notes Indenture.
7.2.10 Maximum Leverage Ratio.
From and after the Borrowing Date, Borrower shall not at any
time permit the Leverage Ratio to exceed the ratio set forth below for the
periods specified below:
----------------------------------------------------------
PERIOD RATIO
----------------------------------------------------------
Borrowing Date through and including 4.50 to 1.00
June 30, 2005
----------------------------------------------------------
Thereafter 4.00 to 1.00
----------------------------------------------------------
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7.2.11 Minimum Fixed Charge Coverage Ratio.
From and after the Borrowing Date, the Borrower shall not
permit the Fixed Charge Coverage Ratio to be less than 3.00 to 1.00.
7.2.12 Minimum Net Worth.
From and after the Borrowing Date, the Borrower shall not at
any time permit Consolidated Tangible Net Worth (determined without regard to
the valuation of derivatives as required by GAAP and as the effect thereof is
reported in the "Other Comprehensive Income" category on the Borrower's
consolidated balance sheet for each period from and after April 1, 2003) to be
less than the Base Net Worth.
7.2.13 Loans and Investments.
The Borrower 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 (other than, in the
ordinary course of business, royalty bonds or bonds securing performance by the
Borrower or a Subsidiary of the Borrower under bonus bids), 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) Permitted Investments;
(iii) loans by the Borrower to the Parent so long as
each such loan is evidenced by the Eligible Note Receivable which is pledged for
the benefit of the Lenders pursuant to the Note Pledge Agreement; provided,
however, that no such loans shall be made at any time that an Event of Default
has occurred and is continuing and the Required Lenders have requested the Agent
to prohibit loans to the Parent by the Borrower as provided in Section 8.2.1 or
such loans have automatically been prohibited by the operation of Section 8.2.2;
(iv) the investment by the Borrower in its
Subsidiaries; and
(v) other Investments, in connection with or related
to the operations of the Borrower and its Subsidiaries, not exceeding
$25,000,000 in the aggregate at any time.
It is expressly agreed that no loans, investments, advances,
dividends, distributions, dispositions or other transfers of cash of any nature
by the Borrower to the Parent shall be made unless made pursuant to the Eligible
Note Receivable in accordance with clause (iii) of this Section 7.2.13, other
than, so long as no Event of Default exists after giving effect thereto, any
distribution, in an amount equal to the Hypothetical Income Tax Amount pursuant
to Section 4.3 of the Arch Western LLC Agreement, to Parent concurrent with the
making of such distribution to the ARCO Member.
67
7.2.14 Amendments to Acquisition Documents, Vulcan Acquisition
Documents or North ▇▇▇▇▇▇▇▇ Contribution Documents.
7.2.14.1 The Borrower shall not, and shall not permit
any of its Subsidiaries to, enter into any amendment or modification to or
waiver or consent under (or solicit any such amendment, modification, waiver or
consent) any of the Acquisition Documents or the Coastal Agreement which could
reasonably be expected to be material and adverse to the Lenders without the
prior written consent of the Agent.
7.2.14.2 The Borrower shall not, and shall not permit
any of its Subsidiaries to, enter into any amendment or modification to or
waiver or consent under (or solicit any such amendment, modification, waiver or
consent) any of the Vulcan Acquisition Documents which could reasonably be
expected to be material and adverse to the Lenders without the prior written
consent of the Agent.
7.2.14.3 The Borrower shall not, and shall not permit
any of its Subsidiaries to, enter into any amendment or modification to or
waiver or consent under (or solicit any such amendment, modification, waiver or
consent) any of the North ▇▇▇▇▇▇▇▇ Contribution Documents which could reasonably
be expected to be material and adverse to the Lenders without the prior written
consent of the Agent.
7.2.15 Off-Balance Sheet Financing and Capital Leases.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into any lease which would constitute a capital lease in
accordance with GAAP or engage in any off-balance sheet transaction (i.e., the
liabilities in respect of which do not appear on the liability side of the
balance sheet) providing the functional equivalent of borrowed money (including
sale/leasebacks or Synthetic Leases) (collectively, "Off-Balance Sheet and
Capital Lease Transactions"), except Indebtedness or other obligations in
respect of Off-Balance Sheet and Capital Lease Transactions, so long as the
aggregate amount of Indebtedness or other obligations in respect of Off-Balance
Sheet and Capital Lease Transactions does not at any time exceed (a)
$100,000,000 plus (b) the actual amount of the Indebtedness and other
obligations in respect of Off-Balance Sheet and Capital Lease Transactions
assumed in connection with the North ▇▇▇▇▇▇▇▇ Contribution, provided however,
that in no event shall the amount of Indebtedness and other obligations in
respect of Off-Balance Sheet and Capital Lease Transactions permitted by this
clause (b) exceed $40,000,000. For purposes of this Section 7.2.15, (a)
"Synthetic Lease" shall mean any lease transaction under which the parties
intend that (i) the lease will be treated as an "operating lease" by the lessee
pursuant to Statement of Financial Accounting Standards No. 13, as amended, and
(ii) the lessee will be entitled to various tax benefits ordinarily available to
owners (as opposed to lessees) of like property and (b) the amount of any lease
which is not a capital lease in accordance with GAAP is the aggregate amount of
minimum lease payments due pursuant to such lease for any noncancelable portion
of its term.
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7.3 Reporting Requirements.
The Borrower covenants and agrees that until payment in full of the
Term Loans and interest thereon, satisfaction of all of the Loan Parties' other
Obligations hereunder and under the other Loan Documents, the Borrower will
furnish or cause to be furnished to the Agent and each of the Lenders:
7.3.1 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 (or such earlier date, from time to time established by the SEC in
accordance with the Securities Exchange Act of 1934, as amended), financial
statements of the Borrower and its Subsidiaries consisting of a consolidated and
consolidating balance sheet as of the end of such fiscal quarter, related
consolidated and consolidating statements of income and equity, and related
consolidated statement of 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,
Treasurer or Chief Financial Officer of the Borrower 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. The Borrower will be deemed to have complied with
the delivery requirements with respect to the consolidated financial statements
required to be delivered under this Section 7.3.1 if within forty-five (45) days
after the end of its fiscal quarter (or such earlier date, from time to time
established by the SEC in accordance with the Securities Exchange Act of 1934,
as amended), the Borrower delivers to the Agent and each of the Lenders a copy
of the Borrower's Form 10-Q as filed with the SEC and the financial statements
contained therein meet the requirements described in this Section.
7.3.2 Annual Financial Statements.
As soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower (or such earlier date, from
time to time established by the SEC in accordance with the Securities Exchange
Act of 1934, as amended), financial statements of the Borrower and its
Subsidiaries consisting of a consolidated and consolidating balance sheet as of
the end of such fiscal year, related consolidated and consolidating statements
of income and equity, and related consolidated statement of 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 with respect to the consolidated financial statements certified
by independent certified public accountants of nationally recognized standing
satisfactory to the Agent. 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. The Borrower will be deemed to have complied
with the delivery requirements with respect to the consolidated financial
statements required to be delivered under this Section 7.3.2 if within ninety
(90) days after the end of its fiscal year (or
69
such earlier date, from time to time established by the SEC in accordance with
the Securities Exchange Act of 1934, as amended), the Borrower delivers to the
Agent and each of the Lenders a copy of the Borrower's Annual Report and Form
10-K as filed with the SEC and the financial statements and certification of
public accountants contained therein meet the requirements described in this
Section.
7.3.3 Certificate of the Borrower.
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 and within ninety (90) days after the end of each fiscal year of the
Borrower, a certificate of the Borrower signed by the Chief Executive Officer,
President, Treasurer or Chief Financial Officer of the Borrower, in the form of
Exhibit 7.3.3, to the effect that, except as described pursuant to Section 7.3.4
[Notice of Default], (i) the representations and warranties of the Borrower
contained in Section 5 [Representations and Warranties] and in the other Loan
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 which shall be true and correct on and as of the
specific dates or times referred to therein) 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,
(iii) containing a list of each Significant Subsidiary, each Inactive Subsidiary
and each Special Subsidiary, other than those set forth on Schedule 5.1.2, and
(iv) containing calculations in sufficient detail to demonstrate compliance as
of the date of such financial statements with all financial covenants contained
in Section 7.2 [Negative Covenants].
7.3.4 Notice of Default.
Promptly after any officer of the Borrower 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 the
Borrower setting forth the details of such Event of Default or Potential Default
and the action which the Borrower proposes to take with respect thereto.
7.3.5 Notice of Litigation.
Promptly after the commencement thereof or promptly after the
determination thereof, notice of all actions, suits, proceedings or
investigations before or by any Official Body or any other Person against any
Loan Party or any Subsidiary of any Loan Party, which (x) involve or could be
reasonably expected to involve assessments against any Loan Party or any
Subsidiary of any Loan Party in excess of $10,000,000, individually or in the
aggregate, or (y) involve a claim or series of claims which if adversely
determined could reasonably be expected to result in a Material Adverse Change
or (z) adversely affect the value of the COLLATERAL.
7.3.6 Notice of Change in Debt Rating.
Within five (5) Business Days after Standard & Poor's or
▇▇▇▇▇'▇ announces a change in the Debt Rating, notice of such change. Borrower
will deliver together
70
with such notice a copy of any written notification which Borrower received
from the applicable rating agency regarding such change of the Debt Rating.
7.3.7 Notices Regarding Plans and Benefit Arrangements.
7.3.7.1 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.
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7.3.7.2 Notices of Involuntary Termination and Annual
Reports.
As soon as available or within thirty (30) days 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
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 report filed by the
Borrower or any other member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.
7.3.7.3 Notice of Voluntary Termination.
Promptly upon the filing thereof, copies of any notice of
standard or distressed termination with the PBGC, or any successor or equivalent
form, filed with the PBGC in connection with the termination of any Plan.
7.3.8 Other Information.
(i) Promptly after any officer of the Borrower or any
Subsidiary of the Borrower has learned of the occurrence of a default or event
which with the passage of time or the giving of notice or both would constitute
a default under the AWR Senior Notes or under any agreement or indenture
governing Permitted Additional AWR Indebtedness, the Borrower shall deliver
notice thereof to the Agent together with a certificate signed by the Chief
Executive Officer, President or Chief Financial Officer of the Borrower setting
forth the details of such default or other such event and the action which the
Borrower proposes to take with respect thereto;
(ii) Promptly upon their becoming available to the
Borrower any reports including management letters submitted to the Borrower by
independent accountants in connection with any annual, interim or special audit;
and
(iii) Promptly upon the request therefore by the
Borrower, such other reports and information as any of the Lenders may from time
to time reasonably request.
7.3.9 Tax Shelter Provisions.
Promptly after any of the Loan Parties determines that it
intends to treat any of the Term Loans or related transactions as being a
"reportable transaction" as provided in Section 7.1.13 [Tax Shelter Regulations]
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(1) a written notice of such intention to the Agent;
and
(2) a duly completed copy of IRS Form 8886 or any
successor form.
8. DEFAULT
8.1 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):
8.1.1 Payments Under Loan Documents.
The Borrower shall fail to pay (i) any principal of any Term
Loan (including scheduled installments, mandatory prepayments or the payment due
at maturity) when such principal is due hereunder or (ii) any interest on any
Term Loan, or any other amount owing hereunder or under the other Loan Documents
within three (3) Business Days after such interest or other amount becomes due
in accordance with the terms hereof or thereof;
8.1.2 Breach of Warranty.
Any representation or warranty made at any time by the
Borrower herein or by any of the other 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;
8.1.3 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 7.1.5 [Visitation Rights],
Section 7.2 [Negative Covenants], or Section 7.3.4 [Notice of Default];
8.1.4 Breach of Other Covenants.
(a) Any of the Loan Parties shall fail to timely perform the
covenants set forth in Sections 7.3.1 [Quarterly Financial Statements], 7.3.2
[Annual Financial Statements] or 7.3.3 [Certificate of the Borrower] and such
default shall continue unremedied for a period of thirty (30) Business Days
after any officer of any Loan Party becomes aware of the occurrence thereof;
(b) 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 thirty
(30) Business Days after any officer of any Loan Party becomes aware of the
occurrence thereof (such grace period
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to be applicable only in the event such default can be remedied by corrective
action of the Loan Parties as determined by the Agent in its sole discretion);
8.1.5 Defaults in Other Agreements or Indebtedness.
(a) A default or event of default shall occur at any time
under the terms of any other agreement involving borrowed money or the extension
of credit or any other Indebtedness or any Derivatives Obligations under which
any Loan Party or Subsidiary of any Loan Party may be obligated as a borrower or
guarantor in excess of $20,000,000 in the aggregate, and such 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 default or event of
default permits or causes (or with the giving of notice or the passage of time
or both would permit or cause) the acceleration of any indebtedness (whether or
not such right shall have been waived) or the termination of any commitment to
lend;
(b) A default or event of default shall occur at any time
under the terms of or with respect to the AWR Senior Notes Indenture or the AWR
Senior Notes, and such 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 or other obligation thereunder when due (whether at
stated maturity, by acceleration or otherwise) or if such default or event of
default permits or causes (or with the giving of notice or the passage of time
or both would permit or cause) the acceleration of any indebtedness or other
obligation (whether or not such right shall have been waived) or the termination
of any commitment to lend;
8.1.6 Judgments or Orders.
Any judgment or judgments for the payment of money in an
aggregate amount in excess of $20,000,000 (or its foreign currency equivalent at
the time) that shall be rendered against any Loan Party or any Subsidiary of any
Loan Party and that shall not be waived, satisfied or discharged for any period
of thirty (30) consecutive days during which a stay of enforcement shall not be
in effect;
8.1.7 Loan Document Unenforceable.
Any of the Loan Documents shall cease to be legal, valid and
binding agreements enforceable against any Loan 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, security interests, rights, titles, interests,
remedies, powers or privileges intended to be created thereby;
8.1.8 Proceedings Against Assets.
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
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of any receiver, trustee, custodian or assignee for the benefit of creditors
and the same is not cured within thirty (30) days thereafter;
8.1.9 Notice of Lien or Assessment.
A notice of Lien or assessment in excess of $10,000,000 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 tax
or debt 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;
8.1.10 Insolvency.
The Borrower and its Subsidiaries, taken as a whole, cease to
be Solvent, or the Borrower and its Subsidiaries, taken as a whole, fail to pay
their debts generally as they become due or admit their inability to pay their
debts generally as they become due;
8.1.11 Events Relating to Plans and Benefit Arrangements.
Any of the following occurs: (i) any Reportable Event, which
the 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 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 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 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;
8.1.12 Cessation of Business.
The Loan Parties, taken as a whole, cease to conduct their
business as contemplated, except as expressly permitted under Section 7.2.3
[Liquidations, Mergers, etc.] or 7.2.4 [Dispositions of Assets and
Subsidiaries], or are enjoined, restrained or in any way prevented by court
order from conducting all or any material part of their business and such
75
injunction, restraint or other preventive order is not dismissed within thirty
(30) days after the entry thereof;
8.1.13 Change of Control.
Any of the following shall occur: (i) Parent shall cease to
own, directly or indirectly, at least ninety-nine percent (99%) of all issued
and outstanding member interests in the Borrower, (ii) any person or group of
persons (within the meaning of Sections 13(d) or 14(a) of the Securities
Exchange Act of 1934, as amended) shall have acquired beneficial ownership of
(within the meaning of Rule 13d-3 promulgated by the SEC under said Act) 35% or
more of the voting capital stock of the Parent; or (iii) within a period of
twelve (12) consecutive calendar months, individuals who (1) were directors of
the Parent on the first day of such period, (2) were nominated for election by
the Parent, or (3) were appointed by the board of directors of the Parent shall
cease to constitute a majority of the board of directors of the Parent;
8.1.14 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
the Parent, any Loan Party or Significant 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 the Parent, any Loan Party or Significant 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 undisguised or
unseated 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; or
8.1.15 Voluntary Proceedings.
The Parent, any Loan Party or Significant 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.
8.2 Consequences of Event of Default.
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or
Reorganization Proceedings.
If an Event of Default specified under Sections 8.1.1
[Payments Under Loan Documents] through 8.1.13 [Change of Control] shall occur
and be continuing, the Lenders and the Agent shall be under no further
obligation to make Term Loans, and the Agent may, and upon the request of the
Required Lenders shall, by written notice to the Borrower, take one or
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more of the following actions: (i) terminate the Commitments and thereupon the
Commitments shall be terminated and of no further force and effect, (ii) declare
the unpaid principal amount of the Term Loans 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 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 (iii) prohibit
loans by the Borrower or any Subsidiary of the Borrower to the Parent, provided,
however, that action under this clause (iii) shall be taken only upon the
request of the Required Lenders; and
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings.
If an Event of Default specified under Section 8.1.14
[Involuntary Proceedings] or 8.1.15 [Voluntary Proceedings] shall occur, the
Commitments shall automatically terminate and be of no further force and effect,
the Lenders shall be under no further obligations to make Term Loans hereunder
and the unpaid principal amount of the Term 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 loans by the Borrower or any Subsidiary
of the Borrower to the Parent shall automatically be prohibited; and
8.2.3 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 9.13 [Equalization of 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 Term 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
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
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 Agent; and
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8.2.4 Suits, Actions, Proceedings.
If an Event of Default shall occur and be continuing, and
whether or not the Agent shall have accelerated the maturity of the Term Loans
pursuant to any of the foregoing provisions of this Section 8.2, the Agent or
the Required Lenders (or, at the request of the Agent or the Required Lenders,
any Lender, and any such Lender that has received such a request shall thus be
entitled to exercise the rights set forth in this Section) if owed any amount
with respect to the Term Loans, may, to the extent permitted by Law, 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 any Agent or such Lender; and
8.2.5 Application of Proceeds.
From and after the date on which the Agent or any Lender shall
have taken any action pursuant to this Section 8.2 and until all Obligations of
the Loan Parties have been paid in full, subject to the provisions of the
Collateral Trust Agreement, any and all proceeds received by the Agent or any
Lender from any sale or other disposition of the Collateral, or any part
thereof, or the exercise of any remedy by the Agent or any Lender shall be
applied as follows:
(i) first, to reimburse the Agent and the Lenders for
out-of-pocket costs, expenses and disbursements, including reasonable attorneys'
and paralegals' fees and legal expenses, incurred by the 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 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 Indebtedness
then due and unpaid of the Loan Parties to the Lenders incurred under this
Agreement or any of the other Loan Documents, whether of principal, interest,
fees, expenses or otherwise, in such manner as the Agent may determine in its
discretion; and
(iii) the balance, if any, as required by Law.
8.2.6 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 Agent shall have all
of the rights and remedies under applicable Law, all of which rights and
remedies shall be cumulative and non-exclusive, to the extent permitted by Law.
The Agent may, and upon the request of the Required Lenders shall, exercise all
post-default rights granted to the Agent and the Lenders under the Loan
Documents or applicable Law.
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8.2.7 Notice of Sale.
Any notice required to be given by the Agent of a sale, lease,
or other disposition of the Collateral or any other intended action by the
Agent, if given ten (10) days prior to such proposed action, shall constitute
commercially reasonable and fair notice thereof to the Borrower.
9. THE AGENT
9.1 Appointment.
Each Lender hereby designates, appoints and authorizes PNC Bank to act
as Agent for such Lender under this Agreement, the Collateral Trust Agreement
and the other Loan Documents and to execute and deliver or accept on behalf of
each of the Lenders the Collateral Trust Agreement and the other Loan Documents.
Each Lender agrees to be bound by the provisions of the Collateral Trust
Agreement and the other Loan Documents as if a party thereto. Each Lender hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of this Agreement, the Collateral Trust Agreement and the other Loan
Documents and any other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. PNC Bank agrees to act as the Agent on behalf of the Lenders to the
extent provided in this Agreement.
9.2 Delegation of Duties.
The Agent may perform any of its duties hereunder by or through agents
or employees (provided such delegation does not constitute a relinquishment of
its duties as Agent) and, subject to Sections 9.5 [Reimbursement and
Indemnification of Agent by the Borrower] and 9.6 [Exculpatory Provisions;
Limitation of Liability], shall be entitled to engage and pay for the advice or
services of any attorneys, accountants or other experts concerning all matters
pertaining to its duties hereunder and to rely upon any advice so obtained.
9.3 Nature of Duties; Independent Credit Investigation.
The Agent shall not have any duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Lender; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement except as
expressly set forth herein. Without limiting the generality of the foregoing,
the use of the term "Agent" in this Agreement with reference to the Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties. Each
Lender expressly acknowledges
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(i) that the Agent has not made any representations or warranties to it and that
no act by the Agent hereafter taken, including any review of the affairs of any
of the Loan Parties, shall be deemed to constitute any representation or
warranty by the Agent to any Lender; (ii) that it has made and will continue to
make, without reliance upon the Agent, its own independent investigation of the
financial condition and affairs and its own appraisal of the creditworthiness of
each of the Loan Parties in connection with this Agreement and the making and
continuance of the Term Loans hereunder; and (iii) except as expressly provided
herein, the Agent shall not have any duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of any Term Loan or at any time or times thereafter.
9.4 Actions in Discretion of Agent; Instructions From the Lenders.
The Agent agrees, upon the written request of the Required Lenders, to
take or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein, provided that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or applicable
Law. In the absence of a request by the Required Lenders, the Agent shall have
authority, in its sole discretion, to take or not to take any such action,
unless this Agreement specifically requires the consent of the Required Lenders
or all of the Lenders. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Lenders, subject to Section
9.6 [Exculpatory Provisions, etc.]. Subject to the provisions of Section 9.6, no
Lender shall have any right of action whatsoever against the Agent as a result
of the Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders, or in the absence of such instructions, in
the absolute discretion of the Agent.
9.5 Reimbursement and Indemnification of Agent by the Borrower.
The Borrower unconditionally agrees to pay or reimburse the Agent and
hold the Agent harmless against (a) liability for the payment of all reasonable
out-of-pocket costs, expenses and disbursements, including fees and expenses of
outside counsel, appraisers and environmental consultants, incurred by the Agent
(i) in connection with the development, negotiation, preparation, printing,
execution, administration, syndication, interpretation and performance of this
Agreement and the other Loan Documents, (ii) relating to any requested
amendments, waivers or consents pursuant to the provisions hereof, (iii) in
connection with the enforcement of this Agreement or any other Loan Document or
collection of amounts due hereunder or thereunder or the proof and allowability
of any claim arising under this Agreement or any other Loan Document, whether in
bankruptcy or receivership proceedings or otherwise, (iv) in any workout or
restructuring or in connection with the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings, and (v) in connection with any Environmental Claim
and/or Environmental Complaint threatened or asserted against the Agent or the
Lenders in any way relating to or arising out of this Agreement or any other
Loan Documents (including, without limitation, the protection, preservation,
exercise or enforcement of any of the terms hereof or of any rights or remedies
hereunder or under any other Loan Document or in connection with any
foreclosure, collection or bankruptcy or receivership proceedings or otherwise
or in any workout or restructuring), and (b) all
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liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent, in its capacity as such,
in any way relating to or arising out of (i) this Agreement or any other Loan
Documents or any action taken or omitted by the Agent hereunder or thereunder,
and (ii) any Environmental Claim and/or Environmental Complaint in any way
relating to or arising out of this Agreement or any other Loan Documents or any
action taken or omitted by the Agent hereunder or thereunder, provided that the
Borrower shall not be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements if the same results from the Agent's gross negligence or willful
misconduct, or if the Borrower was not given notice of the subject claim and the
opportunity to participate in the defense thereof, at its expense (except that
the Borrower shall remain liable to the extent such failure to give notice does
not result in a loss to the Borrower), or if the same results from a compromise
or settlement agreement entered into without the consent of the Borrower, which
shall not be unreasonably withheld.
9.6 Exculpatory Provisions; Limitation of Liability.
Neither the Agent nor any of its respective directors, officers,
employees, agents, attorneys or Affiliates shall (a) be liable to any Lender for
any action taken or omitted to be taken by it or them hereunder, or in
connection herewith including pursuant to any Loan Document, unless caused by
its or their own gross negligence or willful misconduct, (b) be responsible in
any manner to any of the Lenders for the effectiveness, enforceability,
genuineness, validity or the due execution of this Agreement or any other Loan
Documents or for any recital, representation, warranty, document, certificate,
report or statement herein or made or furnished under or in connection with this
Agreement or any other Loan Documents, or (c) be under any obligation to any of
the Lenders to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions hereof or thereof on the part of the
Loan Parties, or the financial condition of the Loan Parties, or the existence
or possible existence of any Event of Default or Potential Default. No claim may
be made by any of the Loan Parties, any Lender, the Agent or any of their
respective Subsidiaries against the Agent, any Lender or any of their respective
directors, officers, employees, agents, attorneys or Affiliates, or any of them,
for any special, indirect or consequential damages or, to the fullest extent
permitted by Law, for any punitive damages in respect of any claim or cause of
action (whether based on contract, tort, statutory liability, or any other
ground) based on, arising out of or related to any Loan Document or the
transactions contemplated hereby or any act, omission or event occurring in
connection therewith, including the negotiation, documentation, administration
or collection of the Term Loans, and the Borrower (for itself and on behalf of
each of its Subsidiaries), the Agent and each Lender hereby waives, releases and
agrees never to ▇▇▇ upon any claim for any such damages, whether such claim now
exists or hereafter arises and whether or not it is now known or suspected to
exist in its favor. Each Lender agrees that, except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Agent
hereunder or given to the Agent for the account of or with copies for the
Lenders, the Agent and each of its respective directors, officers, employees,
agents, attorneys or Affiliates shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Loan Parties that may come into the possession of the
Agent or any of its directors, officers, employees, agents, attorneys or
Affiliates.
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9.7 Reimbursement and Indemnification of Agent by the Lenders.
Each Lender agrees to reimburse and indemnify the Agent (to the extent
not reimbursed by the Borrower and without limiting the Obligation of the
Borrower to do so) in proportion to its Ratable Share of Term Loans (or if no
Term Loans are outstanding, of Commitments) from and against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, reasonable
costs, expenses or disbursements, including attorneys' fees and disbursements,
and costs of appraisers and environmental consultants, of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
its capacity as Agent hereunder, in connection with or arising out of this
Agreement or any other Loan Documents or any action taken or omitted by the
Agent hereunder or thereunder, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (a) if the same results from
the Agent's gross negligence or willful misconduct, as the case may be, or (b)
if such Lender was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that such Lender
shall remain liable to the extent such failure to give notice does not result in
a loss to the Lender), or (c) if the same results from a compromise and
settlement agreement entered into without the consent of such Lender, which
shall not be unreasonably withheld. In addition, each Lender agrees promptly
upon demand to reimburse the Agent (to the extent not reimbursed by the Borrower
and without limiting the Obligation of the Borrower to do so) in proportion to
its Ratable Share of Term Loans (or if no Term Loans are outstanding, of
Commitments) for all amounts due and payable by the Borrower to the Agent in
connection with the periodic audit of the Loan Parties' books, records and
business properties by the Agent.
9.8 Reliance by Agent.
The Agent shall be entitled to rely upon any writing, telegram, telex
or teletype message, resolution, notice, consent, certificate, letter,
cablegram, statement, order or other document or conversation by telephone or
otherwise believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon the advice and opinions of
counsel and other professional advisers selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action hereunder unless it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
9.9 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Default or Event of Default unless such person has
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Potential Default or Event of Default and stating
that such notice is a "notice of default".
9.10 Notices.
The Agent agrees to promptly send to each Lender a copy of all notices
received from the Borrower pursuant to the provisions of this Agreement or the
other Loan Documents
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promptly upon receipt thereof. The Agent shall promptly notify the Borrower
and the other Lenders of each change in the Base Rate and the effective date
thereof.
9.11 Lenders in Their Individual Capacities.
With respect to its Commitment and the Term Loans made by it and any
other rights and powers given to it as a Lender hereunder or under any of the
other Loan Documents, the Agent shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not the Agent,
and the term "Lenders" shall, unless the context otherwise indicates, include
the Agent in its individual capacity. PNC Bank and its Affiliates and each of
the Lenders and their respective Affiliates may, without liability to account,
except as prohibited herein, make loans to, accept deposits from, discount
drafts for, act as trustee under indentures of, and generally engage in any kind
of banking or trust business with the Loan Parties and their Affiliates, in the
case of the Agent, as though it were not acting as Agent hereunder and in the
case of each Lender, as though such Lender were not a Lender hereunder. The
Lenders acknowledge that, pursuant to such activities, the Agent or its
respective Affiliates may (i) receive information regarding the Loan Parties
(including information that may be subject to confidentiality obligations in
favor of the Loan Parties) and acknowledge that the Agent shall not be under any
obligation to provide such information to them, and (ii) accept fees and other
consideration from the Loan Parties for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
9.12 Holders of Term Notes.
The Agent may deem and treat any payee of any Term Note as the owner
thereof for all purposes hereof unless and until written notice of the
assignment or transfer thereof shall have been filed with the Agent. Any
request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Term Note shall
be conclusive and binding on any subsequent holder, transferee or assignee of
such Term Note or of any Term Note or Term Notes issued in exchange therefor.
9.13 Equalization of Lenders.
The Lenders and the holders of any participations in any Commitments or
Term Loans or other rights or obligations of a Lender hereunder agree among
themselves that, with respect to all amounts received by any Lender or any such
holder for application on any Obligation hereunder or under any such
participation, whether received by voluntary payment, by realization upon
security, by the exercise of the right of set-off or banker's lien, by
counterclaim or by any other non-pro rata source, equitable adjustment will be
made in the manner stated in the following sentence so that, in effect, all such
excess amounts will be shared ratably among the Lenders and such holders in
proportion to their interests in payments on the Term Loans, except as otherwise
provided in Sections 3.4.3 [Agent's and Lender's Rights], 4.4.2 [Replacement of
a Lender] or 4.6 [Additional Compensation in Certain Circumstances]. The Lenders
or any such holder receiving any such amount shall purchase for cash from each
of the other Lenders an interest in such Lender's Term Loans in such amount as
shall result in a ratable participation by the Lenders and each such holder in
the aggregate unpaid amount of the Term Loans, provided that if all or any
portion of such excess amount is thereafter recovered from the
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Lender or the holder making such purchase, such purchase 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.
9.14 Successor Agent.
The Agent (i) may resign as Agent or (ii) shall resign if such
resignation is requested by the Required Lenders (if the Agent is a Lender, such
Agent's Term Loans and Commitment shall be considered in determining whether the
Required Lenders have requested such resignation) or required by Section 4.4.2
[Replacement of a Lender], in either case of (i) or (ii) by giving not less than
thirty (30) days' prior written notice to the Borrower. If Agent shall resign
under this Agreement, then either (a) the Required Lenders shall appoint from
among the Lenders a successor to the Agent for the Lenders, subject to the
consent of the Borrower, such consent not to be unreasonably withheld, provided
that, no consent of the Borrower shall be required during any period when an
Event of Default exists and is continuing, or (b) if a successor Agent shall not
be so appointed and approved within the thirty (30) day period following the
Agent's notice to the Lenders of its resignation, then the resigning Agent shall
appoint, with the consent of the Borrower, such consent not to be unreasonably
withheld, provided that, no consent of the Borrower shall be required during any
period when an Event of Default exists and is continuing, a successor who shall
be a Lender shall serve as Agent until such time as the Required Lenders appoint
and the Borrower consents to the appointment of a successor to such resigning
Agent. Upon its appointment pursuant to either clause (a) or (b) above, such
successor Agent shall succeed to the rights, powers and duties of the resigning
Agent and the term "Agent" shall mean such successor Agent effective upon its
appointment, and the former Agent's rights, powers and duties as an Agent shall
be terminated without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement. After the resignation of
the Agent hereunder, the provisions of this Section 9 shall inure to the benefit
of such former Agent, and such former Agent shall not by reason of such
resignation be deemed to be released from liability for any actions taken or not
taken by it while it was Agent under this Agreement.
9.15 Agent's Fee.
The Borrower shall pay to the Agent a nonrefundable fee (the "Agent's
Fee") for the Agent's services hereunder under the terms of a letter (the "Fee
Letter") between the Borrower and the Agent, as amended from time to time.
9.16 Availability of Funds.
The Agent may assume that each Lender has made or will make the
proceeds of a Term Loan available to the Agent unless the Agent shall have been
notified by such Lender on or before the later of (1) the close of business on
the Business Day preceding the Borrowing Date with respect to such Term Loan or
two (2) hours before the time on which the Agent actually funds the proceeds of
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such Term Loan to the Borrower (whether using its own funds pursuant to this
Section 9.16 or using proceeds deposited with the Agent by the Lenders and
whether such funding occurs before or after the time on which Lenders are
required to deposit the proceeds of such Term Loan with the Agent). The Agent
may, in reliance upon such assumption (but shall not be required to), make
available to the Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Agent by such Lender, the Agent shall be
entitled to recover such amount on demand from such Lender (or, if such Lender
fails to pay such amount forthwith upon such demand from the Borrower) together
with interest thereon, in respect of each day during the period commencing on
the date such amount was made available to the Borrower and ending on the date
the Agent recovers such amount, at a rate per annum equal to (i) the Federal
Funds Effective Rate during the first three (3) days after such interest shall
begin to accrue and (ii) the applicable interest rate in respect of such Term
Loan after the end of such three-day period.
9.17 Calculations.
In the absence of gross negligence or willful misconduct, the Agent
shall not be liable for any error in computing the amount payable to any Lender
whether in respect of the Term 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 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.
9.18 Certain Releases of Guarantors and Collateral.
It is expressly agreed that, upon the written request of the Borrower
(accompanied by such certificates and other documentation as the Agent may
reasonably request) the Agent on behalf of the Lenders and without any consent
or action by any Lender, may, so long as no Event of Default exists after giving
effect thereto, release: (i) any Collateral or any Guarantor from a Guaranty
Agreement, in either case, in connection with any sale, transfer, lease,
disposition, merger or other transaction permitted by this Agreement or any
other Loan Document, or (ii) any Subsidiary from the Guaranty Agreement if such
Subsidiary is no longer a Significant Subsidiary.
9.19 Beneficiaries.
Except as expressly provided herein, the provisions of this Section 9
are solely for the benefit of the Agent and the Lenders, and the Loan Parties
shall not have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as the Agent of the Lenders and does not assume and shall not be deemed
to have assumed any obligation toward or relationship of agency or trust with or
for any of the Loan Parties.
9.20 No Reliance on Agent's Customer Identification Program.
Each Lender acknowledges and agrees that neither such Lender, nor any
of its Affiliates, participants or assignees, may rely on the 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
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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: (1) any identity verification
procedures, (2) any recordkeeping, (3) comparisons with government lists, (4)
customer notices or (5) other procedures required under the CIP Regulations or
such other Laws.
10. MISCELLANEOUS
10.1 Modifications, Amendments or Waivers.
With the written consent of the Required Lenders, the 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 to a departure from the due performance of the Obligations
of the Loan Parties 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, no such agreement, waiver or
consent may be made which will:
10.1.1 Increase of Commitments; Extension of Expiration Date.
Without the written consent of all Lenders, increase the
amount of the Commitment of any Lender hereunder (other than an increase of the
amount of the Commitment of any Lender in accordance with Section 2.1.2, which
increase shall not require the consent of any Lender other than the consent of
the Lender increasing its Commitment) or extend the Expiration Date;
10.1.2 Extension of Payment; Reduction of Principal, Interest
or Fees; Modification of Terms of Payment.
Without the written consent of all Lenders, whether or not any
Term Loans are outstanding, extend the time for payment of principal or interest
of any Term Loan or any fee payable to any Lender, or reduce the principal
amount of or the rate of interest borne by any Term Loan or reduce the rate of
any fee payable to any Lender;
10.1.3 Release of Collateral or Guarantor.
Except as set forth in Section 9.18, release any of the
Collateral or release any Guarantor from its Obligations under the Guaranty
Agreement or any other security for any of the Loan Parties' Obligations without
the prior written consent of all Lenders; or
10.1.4 Miscellaneous.
Amend Sections 4.2 [Pro Rata Treatment of Lenders], 9.6
[Exculpatory Provisions, etc.] or 9.13 [Equalization of Lenders] or this Section
10.1, alter any provision regarding the pro rata treatment of the Lenders,
change the definition of Required Lenders, or
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change any requirement providing for the Lenders, the Required Lenders or all
the Lenders to authorize the taking of any action hereunder without the prior
written consent of each Lender adversely affected thereby; provided, further,
that no agreement, waiver or consent which would modify the interests, rights or
obligations of any Agent in its capacity as such shall be effective without the
written consent of such Agent and no agreement, waiver or consent which would
modify the interests, rights or obligations of the Agent in its capacity shall
be effective without the written consent of the Agent.
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.
No course of dealing and no delay or failure of the 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 preclude any further exercise thereof or of any other right, power,
remedy or privilege. The rights and remedies of the 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.
10.3 Reimbursement and Indemnification of Lenders by the Borrower;
Taxes. Limitations.
The Borrower agrees unconditionally upon demand to pay or reimburse to
each Lender (other than the Agent, as to which the Borrower's Obligations are
set forth in Section 9.5 [Reimbursement and Indemnification of Agent by the
Borrower]) and to save such Lender harmless against (i) liability for the
payment of all reasonable out-of-pocket costs, expenses and disbursements
(including fees and expenses of outside counsel) for each Lender (except with
respect to (A) and (B) below), incurred by such Lender (a) in connection with
the administration and interpretation of this Agreement, and other instruments
and documents to be delivered hereunder, (b) relating to any amendments, waivers
or consents pursuant to the provisions hereof, (c) in connection with the
enforcement of this Agreement or any other Loan Document, or collection of
amounts due hereunder or thereunder or the proof and allowability of any claim
arising under this Agreement or any other Loan Document, whether in bankruptcy
or receivership proceedings or otherwise, (d) in any workout or restructuring or
in connection with the protection, preservation, exercise or enforcement of any
of the terms hereof or of any rights hereunder or under any other Loan Document
or in connection with any foreclosure, collection or bankruptcy proceedings, and
(e) in connection with any Environmental Claim and/or Environmental Complaint
threatened or asserted against the Lenders in any way relating to or arising out
of this Agreement or any other Loan Documents (including, without limitation,
the protection, preservation, exercise or enforcement or any of the terms hereof
or of any rights or remedies hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy or receivership
proceedings or otherwise or in any workout or restructuring), or (ii) all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed
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on, incurred by or asserted against such Lender, in its capacity as such, in any
way relating to or arising out of (y) this Agreement or any other Loan Documents
or any action taken or omitted by such Lender hereunder or thereunder, and (z)
any Environmental Claim and/or Environmental Complaint in any way relating to or
arising out of this Agreement or any other Loan Documents or any action taken or
omitted by such Lender hereunder or thereunder, provided that the Borrower shall
not be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (A) if
the same results from such Lender's gross negligence or willful misconduct, or
(B) if the Borrower was not given notice of the subject claim and the
opportunity to participate in the defense thereof, at its expense (except that
the Borrower shall remain liable to the extent such failure to give notice does
not result in a loss to the Borrower), or (C) if the same results from a
compromise or settlement agreement entered into without the consent of the
Borrower, which shall not be unreasonably withheld. Neither the Agent nor any
Lender shall be liable for any damages arising from the use by unauthorized
persons of information or other materials sent through electronic,
telecommunications or other information transmission systems that are
intercepted by such persons. Neither the Agent nor any Lender shall be liable or
responsible to the Borrower or other party hereto for any special, indirect,
consequential or punitive damages in connection with the Term Loans or otherwise
under or in connection with the Loan Documents, the transactions contemplated
thereby or any of their respective obligations thereunder. The Lenders will
attempt to minimize the fees and expenses of legal counsel for the Lenders which
are subject to reimbursement by the Borrower hereunder by considering the use of
one law firm to represent the Lenders and the Agent if appropriate under the
circumstances. The Borrower agrees unconditionally to pay all stamp, document,
transfer, recording or filing taxes or fees and similar impositions now or
hereafter determined by the Agent or any Lender to be payable in connection with
this Agreement or any other Loan Document, and the Borrower agrees
unconditionally to save the Agent and the Lenders harmless from and against any
and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions.
10.4 Holidays.
Whenever payment of a Term 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 and such extension of time shall be included in computing interest
and fees, except that the Term 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 Term
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
(except as provided in Section 3.2 [Interest Periods] with respect to Interest
Periods under the Euro-Rate Option), and such extension of time shall not be
included in computing interest or fees, if any, in connection with such payment
or action.
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10.5 Funding by Branch, Subsidiary or Affiliate.
10.5.1 Notional Funding.
Each Lender shall have the right from time to time, without
notice to the Borrower, to deem any branch, Subsidiary or Affiliate (which for
the purposes of this Section 10.5 shall mean any corporation or association
which is directly or indirectly controlled by or is under direct or indirect
common control with any corporation or association which directly or indirectly
controls such Lender) of such Lender to have made, maintained or funded any Term
Loan to which the Euro-Rate Option applies at any time, provided that
immediately following (on the assumption that a payment were then due from the
Borrower to such other office), and as a result of such change, the Borrower
would not be under any greater financial obligation pursuant to Section 4.6
[Additional Compensation in Certain Circumstances] than it would have been in
the absence of such change. Notional funding offices may be selected by each
Lender without regard to such Lender's actual methods of making, maintaining or
funding the Term Loans or any sources of funding actually used by or available
to such Lender.
10.5.2 Actual Funding.
Each Lender shall have the right from time to time to make or
maintain any Term Loan by arranging for a branch, Subsidiary or Affiliate of
such Lender to make or maintain such Term Loan subject to the last sentence of
this Section 10.5.2. If any Lender causes a branch, Subsidiary or Affiliate to
make or maintain any part of the Term Loans hereunder, all terms and conditions
of this Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the Term Loans to the same extent as if such Term
Loans were made or maintained by such Lender, but in no event shall any Lender's
use of such a branch, Subsidiary or Affiliate to make or maintain any part of
the Term Loans hereunder cause such Lender or such branch, Subsidiary or
Affiliate to incur any cost or expenses payable by the Borrower hereunder or
require the Borrower to pay any other compensation to any Lender (including any
expenses incurred or payable pursuant to Section 4.6 [Additional Compensation in
Certain Circumstances]) which would otherwise not be incurred.
10.6 Notices.
All notices, requests, demands, directions and other communications (as
used in this Section 10.6, collectively referred to as "notices") given to or
made upon any party hereto under the provisions of this Agreement shall be by
telephone or in writing (including telex or facsimile communication) unless
otherwise expressly permitted hereunder and shall be delivered or sent by telex
or facsimile to the respective parties at the addresses and numbers set forth
under their respective names on Schedule 1.1(B) hereof or in accordance with any
subsequent unrevoked written direction from any party to the others. All notices
shall, except as otherwise expressly herein provided, be effective (a) in the
case of telex or facsimile, when received, (b) in the case of hand-delivered
notice, when hand-delivered, (c) in the case of telephone, when telephoned,
provided, however, that in order to be effective, telephonic notices must be
confirmed in writing no later than the next day by letter, facsimile or telex,
(d) if given by mail, four (4) days after such communication is deposited in the
mail with first-class postage prepaid, return receipt requested, and (e) if
given by any other means (including by air courier), when
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delivered; provided, that notices to the Agent shall not be effective until
received. Any Lender giving any notice to the Borrower shall simultaneously send
a copy thereof to the Agent, and the Agent shall promptly notify the other
Lenders of the receipt by it of any such notice. Any notice delivered to the
Borrower shall be deemed to be notice to the Loan Parties and shall be binding
upon all of the Loan Parties.
10.7 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.
10.8 Governing Law.
This Agreement shall be deemed to be a contract under the Laws of the
Commonwealth of Pennsylvania and for all purposes shall be governed by and
construed and enforced in accordance with the internal laws of the Commonwealth
of Pennsylvania without regard to its conflict of laws principles.
10.9 Prior Understanding.
This Agreement, the Fee Letter and the other Loan Documents supersede
all prior understandings and agreements, whether written or oral, between the
parties hereto and thereto relating to the transactions provided for herein and
therein, including any prior confidentiality agreements and commitments.
10.10 Duration; Survival.
All representations and warranties of the Borrower contained herein or
made by any Loan Party in connection herewith shall survive the making of Term
Loans and shall not be waived by the execution and delivery of this Agreement,
any investigation by the Agent or the Lenders, the making of Term Loans or
payment in full of the Term Loans. All covenants and agreements of the Borrower
contained in Sections 7.1 [Affirmative Covenants], 7.2 [Negative Covenants] and
7.3 [Reporting Requirements] herein shall continue in full force and effect from
and after the date hereof until payment in full of the Term Loans. 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 Section 4 [Payments] and Sections
9.5 [Reimbursement and Indemnification of Agent by the Borrower], 9.7
[Reimbursement and Indemnification of Agent by the Lenders] and 10.3
[Reimbursement and Indemnification of Lenders by the Borrower, etc.], shall
survive payment in full of the Term Loans.
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10.11 Successors and Assigns.
10.11.1 Binding Effect; Assignments by Borrower.
This Agreement shall be binding upon and shall inure to the
benefit of the Lenders, the Agent, the Borrower and their respective successors
and assigns, except that neither the Borrower nor any other Loan Party may
assign or transfer any of its respective rights and Obligations hereunder or
under any other Loan Document or any interest herein or therein without the
consent of all of the Lenders.
10.11.2 Assignments and Participations by Lenders;
Designations.
(a) Assignments and Participations.
This Section shall apply to any assignment or participation by
a Lender of its Term Loans or Commitments. Each Lender may, at its own cost,
make assignments of all or any part of its Commitment and Term Loans to one or
more banks or other entities, subject to the consent of the Borrower (which
consent shall not be required during any period in which an Event of Default
exists) and the Agent with respect to any assignee, such consents not to be
unreasonably withheld, provided that assignments by a Lender to an Affiliate of
such Lender or Approved Fund of any Lender may be made without the consent of
either of the Borrower or the Agent upon written notice of such assignment to
the Agent and compliance with the terms and conditions of this Section, and
provided further that assignments may not be made in amounts less than
$1,000,000 unless such assignment is an assignment of all of a Lender's
Commitment or Term Loans or unless such assignment is an assignment to an
Affiliate of such Lender, an Approved Fund of any Lender or to another Lender.
Each Lender may, at its own cost, grant participations in all or any part of its
Commitment and Term Loans made by it to one or more banks or other entities
without the consent of any party hereto. In the case of an assignment of all or
any portion of a Commitment, upon receipt by the Agent of the Assignment and
Assumption Agreement, the assignee shall have, to the extent of such assignment
(unless otherwise provided therein), the same rights, benefits and obligations
as it would have if it had been a signatory Lender hereunder, the Commitments in
Section 2.1 [Commitments] shall be adjusted accordingly, and upon surrender of
the Term Note subject to such assignment, the Borrower shall execute and deliver
a new Term Note to the assignee in an amount equal to the amount of the
Commitment assumed by it and a new Term Note to the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Any assigning Lender
(including a Lender assigning all or a portion of its Commitment and Term Loans
to an Affiliate of such Lender or Approved Fund of any Lender and, in the case
of a Lender which is a fund, to a fund under common control with such Lender)
shall pay to the Agent a service fee in the amount of $3,500 for each
assignment, which amount shall not be subject to reimbursement or
indemnification by the Borrower; provided, however, in the case of assignments
on the same day by a Lender to an Approved Fund, so long as the Agent in its
sole discretion agrees in writing prior to any such assignment only a single
$3,500 service fee shall be payable for all such assignments on such day by such
Lender to such Approved Funds. In the case of a participation, the participant
shall have only the rights specified in Section 8.2.3 [Set-Off] (the
participant's rights against the selling Lender in respect of such participation
to be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto and not to include
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any voting rights except with respect to changes of the type referenced in
Sections 10.1.1 [Increase of Commitments, etc.], 10.1.2 [Extension of Payment,
etc.] and 10.1.3 [Release of Collateral or Guarantor]), all of such Lender's
obligations under this Agreement or any other Loan Document shall remain
unchanged, and all amounts payable by any Loan Party hereunder or thereunder
shall be determined as if such Lender had not sold such participation. Any
assignee or participant which is not incorporated under the Laws of the United
States of America or a state thereof shall deliver to the Borrower and the Agent
the form of certificate described in Section 10.17.1 [Tax Withholding] relating
to federal income tax withholding. Each Lender may furnish any publicly
available information concerning any Loan Party or its Subsidiaries and any
other information concerning any Loan Party or its Subsidiaries in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees or participants), provided that such assignees
and participants agree to be bound by the provisions of Section 10.12
[Confidentiality].
(b) Designation.
(i) Notwithstanding anything to the contrary
contained herein, any Lender (a "Designating Lender") may grant to one or more
special purpose funding vehicles (each, an "SPV"), identified as such in writing
from time to time by the Designated Lender to the Agent and the Borrower, the
option to provide to the Borrower all or any part of any Term Loan that such
Designating Lender would otherwise be obligated to make to the Borrower pursuant
to this Agreement; provided that (x) nothing herein shall constitute a
commitment by any SPV to make any Term Loan, (y) if an SPV elects not to
exercise such option or otherwise fails to provide all or any part of such Term
Loan, the Designating Lender shall be obligated to make such Term Loan pursuant
to the terms hereof and (z) the Designating Lender shall remain liable for any
indemnity or other payment obligation with respect to its Commitment hereunder.
The making of a Term Loan by an SPV hereunder shall utilize the Commitment of
the Designating Lender to the same extent, and as if, such Term Loan were made
by such Designating Lender.
(ii) As to any Term Loans or portion thereof made by
it, each SPV shall have all the rights that a Lender making such Term Loans or
portion thereof would have had under this Agreement; provided, however, that
each SPV shall have granted to its Designating Lender an irrevocable power of
attorney, to deliver and receive all communications and notices under this
Agreement (and any Loan Documents) and to exercise, on such SPV's behalf, all of
such SPV's voting rights under this Agreement. No additional Note shall be
required to evidence the Term Loans or portion thereof made by an SPV; and the
related Designating Lender shall be deemed to hold its Note as agent for such
SPV to the extent of the Term Loans or portion thereof funded by such SPV. In
addition, any payments for the account of any SPV shall be paid to its
Designating Lender as agent for such SPV. Notwithstanding any term or condition
hereof, no SPV, unless it shall have become a Lender hereunder in accordance
with the terms of Section 10.11.2(a), shall be a party hereto or have any right
to vote or give or withhold its consent under this Agreement. The Agent shall
have no duty or obligation to give any notices required to be delivered
hereunder to any SPV.
(iii) Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or payment under this Agreement for which a
Lender would otherwise
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be liable. In furtherance of the foregoing, each party hereto hereby agrees
(which agreements shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the later of (x) payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, (y)
the payment in full of all Term Loans, and (z) the termination of all
Commitments, it will not institute against, or join any other person in
instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof, provided that the Designating Lender for each SPV hereby agrees
to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage and expense arising out of the inability to institute any such proceeding
against such SPV.
(iv) In addition, notwithstanding anything to the
contrary contained in this Section 10.11.2(b) or otherwise in this Agreement
(other than the proviso set forth directly below in this Section 10.11.2(b), any
SPV may (y) with notice to, but without the prior written consent of the
Borrower or the Agent, at any time and without paying any processing fee
therefor, assign or participate all or a portion of its interest in any Term
Loans to the Designating Lender or to any financial institutions providing
liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Term Loans and (z) disclose on a confidential basis
any non public information relating to its Term Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancements to such SPV; provided, however, that in no event may any
non-public financial information provided by the Borrower under Section 7.3
[Reporting Requirements] be provided by any SPV to any other Person. In no event
shall the Borrower be obligated to pay to any SPV that has made a Term Loan any
greater amount than the Borrower would have been obligated to pay under this
Agreement if the Designating Lender had made such Term Loan. This Section
10.11.2(b) may not be amended without the written consent of any Designating
Lender affected thereby.
10.11.3 Non-U.S. Assignees and Participants.
Each Lender or assignee or participant of a Lender that is not
incorporated under the laws of the U.S. or a state thereof (and, upon the
written request of the Agent, each other Lender or assignee or participant of a
Lender) shall deliver to the Borrower and the Agent a Withholding Certificate as
described in Section 10.17.1 [Tax Withholding] relating to federal income tax
withholding. Each Lender may furnish any publicly available information
concerning any Loan Party or its Subsidiaries and any other information
concerning any Loan Party or its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective assignees
or participants), provided that such assignees and participants agree to be
bound by the provisions of Section 10.12 [Confidentiality].
10.11.4 Assignments by Lenders to Federal Reserve Banks.
Notwithstanding any other provision in this Agreement, any
Lender may at any time pledge or grant a security interest in all or any portion
of its rights under this Agreement, its Term Notes (if any) and the other Loan
Documents to any Federal Reserve Bank without notice to or consent of the
Borrower and the Agent, and any Lender which is an investment fund may pledge
all or any portion of its Term Notes or Term Loans to its trustee in
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support of its obligations to such trustee. No such pledge or grant of a
security interest shall release the transferor Lender of its obligations
hereunder or under any other Loan Document. In no event shall such Federal
Reserve Bank or trustee, as a result of such pledge or grant of a security
interest, be considered to be a "Lender" hereunder or be entitled to require the
assigning Lender to take or omit to take any action hereunder. For avoidance of
doubt, the parties to this Agreement acknowledge that the provisions of this
Section 10.11 concerning assignments relate only to absolute assignments and
that such provisions do not prohibit assignments creating security interests,
including any pledge or assignment by a Lender to any Federal Reserve Bank in
accordance with applicable law.
10.12 Confidentiality.
10.12.1 General.
The Agent and the Lenders each agree to keep confidential all
information obtained from any Loan Party or its Subsidiaries which is nonpublic
and confidential or proprietary in nature (including any information the
Borrower specifically designates in writing as confidential), except as provided
below, and to use such information only in connection with their respective
capacities under this Agreement and for the purposes contemplated hereby. The
Agent and the Lenders shall be permitted to disclose such information (i) to
outside legal counsel, accountants and other professional advisors who need to
know such information in connection with the execution, administration and
enforcement of this Agreement, subject to the agreement of such Persons to
maintain the confidentiality, (ii) to assignees and participants as contemplated
by Section 10.11 [Successors and Assigns], (iii) to any direct or indirect
contractual counterparty in any swap, hedge or similar agreement or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 10.12.1) (iv) to the extent requested
by any bank regulatory authority, or, with notice to the Borrower as permitted
by applicable Law, as otherwise required by applicable Law or by any subpoena or
other legal process, or in connection with any investigation or proceeding
arising out of the transactions contemplated by this Agreement, (v) if it
becomes publicly available other than as a result of a breach of this Agreement
or becomes available from a source not known to be subject to confidentiality
restrictions, (vi) any nationally recognized rating agency that requires access
to information about the Lender's investment portfolio, (vii) in connection with
the exercise, preservation or protection of any right or remedy hereunder or
under the other Loan Documents, applicable law or in equity or (viii) if the
Borrower shall have consented to such disclosure. Notwithstanding anything
herein to the contrary, the information subject to this Section 10.12.1 shall
not include, and the Agent and each Lender may disclose without limitation of
any kind, any information with respect to the "tax treatment" and "tax
structure" (in each case, within the meaning of Income Tax Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the Agent or
such Lender relating to such tax treatment and tax structure, other than any
information for which nondisclosure is reasonably necessary in order to comply
with applicable securities laws; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or
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similar item that relate to the tax treatment or tax structure of the Term
Loans and transactions contemplated hereby.
10.12.2 Sharing Information With Affiliates of the Lenders.
The Borrower 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 the Borrower (on its own behalf and on behalf of its Subsidiaries)
hereby authorizes each Lender to share any information delivered to such Lender
by the Borrower and its Subsidiaries pursuant to this Agreement, or in
connection with the decision of such Lender to enter into this Agreement, to any
such Subsidiary or Affiliate of such Lender, it being understood that any such
Subsidiary or Affiliate of any Lender receiving such information shall be bound
by the provisions of Section 10.12.1 above as if it were a Lender hereunder.
Such authorization shall survive the repayment of the Term Loans and other
Obligations and the termination of the Commitments.
10.13 Counterparts.
This Agreement may be executed by different parties hereto on any
number of separate counterparts, each of which, when so executed and delivered,
shall be an original, and all such counterparts shall together constitute one
and the same instrument.
10.14 Agent's or Lender's Consent.
Whenever the Agent's or any Lender's consent is required to be obtained
under this Agreement or any of the other Loan Documents as a condition to any
action, inaction, condition or event, the Agent and each Lender shall be
authorized to give or withhold such consent in its sole and absolute discretion
and to condition its consent upon the giving of additional collateral, the
payment of money or any other matter.
10.15 Exceptions.
The representations, warranties and covenants contained herein shall be
independent of each other, and no exception to any representation, warranty or
covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
THE BORROWER HEREBY IRREVOCABLY CONSENTS 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 WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO THE
BORROWER AT THE ADDRESS PROVIDED FOR IN SECTION 10.6 [NOTICES] AND
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SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. THE
BORROWER WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
AGAINST IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK
OF JURISDICTION OR VENUE. THE BORROWER, THE AGENT, AND THE LENDERS HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
COLLATERAL TO THE FULL EXTENT PERMITTED BY LAW.
10.17 Certifications From Lenders and Participants
10.17.1 Tax Withholding.
Each Lender or assignee or participant of a Lender that is not
incorporated under the Laws of the U.S. or a state thereof (and, upon the
written request of the Agent, each other Lender or assignee or participant of a
Lender) agrees that it will deliver to each of the Borrower and the Agent two
(2) duly completed appropriate valid Withholding Certificates (as defined under
Section 1.1441-1(c)(16) of the Income Tax Regulations certifying its status
(i.e., U.S. or foreign Person) and, if appropriate, making a claim of reduced,
or exemption from, U.S. withholding tax on the basis of an income tax treaty or
an exemption provided by the Internal Revenue Code. The term "Withholding
Certificate" includes Form W-9; Form W-8BEN; Form W-8ECI; or, Form W-8IMY, and
the related statements and certifications as required under Section
1.1441-1(c)(3) of the Income Tax Regulations; a statement described in Section
1.871-14(c)(2)(v) of the Income Tax Regulations; or, any other certificates
under the Code or Income Tax Regulations that certify or establish the status of
a payee or beneficial owner as a U.S. or foreign Person. Each Lender, assignee
or participant required to deliver to the Borrower and the Agent a valid
Withholding Certificate pursuant to the preceding sentence shall deliver such
valid Withholding Certificate as follows: (A) each Lender which is a party
hereto on the Borrowing Date shall deliver such valid Withholding Certificate at
least five (5) Business Days prior to the first date on which any interest or
fees are payable by the Borrower hereunder for the account of such Lender; (B)
each assignee or participant shall deliver such valid Withholding Certificate at
least five (5) Business Days before the effective date of such assignment or
participation (unless the Agent in its sole discretion shall permit such
assignee or participant to deliver such Withholding Certificate less than five
(5) Business Days before such date in which case it shall be due on the date
specified by the Agent). Each Lender, assignee or participant which so delivers
a valid Withholding Certificate further undertakes to deliver to each of the
Borrower and the Agent two (2) additional copies of such Withholding Certificate
(or a successor form) on or before the date that such Withholding Certificate
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent Withholding Certificate so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent. Notwithstanding the submission of a
Withholding Certificate claiming a reduced rate of, or exemption from, U.S.
withholding tax, the Agent shall be entitled to withhold U.S. federal income
taxes at the full withholding rate unless the Lender, assignee or participant
establishes pursuant to the foregoing that it is entitled to an exemption or
that it is subject to a reduced rate or, if in its reasonable judgment the Agent
is not required to do so under the due diligence requirements imposed upon a
withholding agent under Section 1.1441-7(b) of the Income Tax Regulations. The
Agent shall be indemnified under Section 1.1461-1(e) of the Income Tax
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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 Section 1441 of the Internal Revenue Code.
10.17.2 USA Patriot Act.
Each Lender or assignee or participant of a Lender that is not
incorporated under the Laws of the U.S. or a state thereof (and is not excepted
from the certification requirement contained in Section 313 of the USA Patriot
Act and the applicable regulations because it is both (i) an affiliate of a
depository institution or foreign bank that maintains a physical presence in the
U.S. or foreign county, and (ii) subject to supervision by a banking authority
regulating such affiliated depository institution or foreign bank) shall deliver
to the Agent the certification, or, if applicable, recertification, certifying
that such Lender is not a "shell" and certifying to other matters as required by
Section 313 of the USA Patriot Act and the applicable regulations: (1) within 10
days after the Borrowing Date, and (2) as such other times as are required under
the USA Patriot Act.
10.18 Requirements for Significant Subsidiaries.
Each Significant Subsidiary of the Borrower shall: (i) in the case of a
Subsidiary which is not a party to the Guaranty Agreement, execute and deliver
to the Agent 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) execute and deliver to the
Agent documents, modified as appropriate to relate to such Subsidiary, (A) prior
to the Borrowing Date, in the forms described in Section 6.1.1 [Officer's
Certificate], 6.1.2 [Secretary's Certificate], 6.1.4 [Opinion of Counsel], 6.1.8
[Officer's Certificate Regarding No Material Adverse Change and Solvency], and
6.1.11 [Insurance] or (B) on or subsequent to the Borrowing Date, in the forms
described in Section 6.2.1 [Officer's Certificate], 6.2.2 [Secretary's
Certificate], 6.2.4 [Opinion of Counsel], 6.2.8 [Officer's Certificate Regarding
No Material Adverse Change and Solvency], and 6.2.11 [Insurance], and (iii)
deliver to the Agent such other documents and agreements as the Agent may
reasonably request, with all documents and agreements delivered and all actions
taken as required by this Section 10.18 to be to the satisfaction of the Agent.
The Borrower shall deliver such Guarantor Joinder and related documents to the
Agent in connection with a Permitted Acquisition as required in accordance with
Section 7.2.4 and in the case of any other event or circumstance within thirty
(30) Business Days after the end of the fiscal quarter in which such Subsidiary
of the Borrower becomes a Significant Subsidiary. In addition, Canyon Fuel
(assuming it is a Significant Subsidiary) shall join the Loan Documents as a
Guarantor at such time as the Borrower can unilaterally, under the terms of the
Canyon Fuel LLC Agreement, cause such joinder to occur.
10.19 Register.
The Agent, acting for this purpose as an agent of the Borrower, shall
maintain at its address for notices referred to at Section 10.6 [Notices] a
register (the "Register") and an account for each Lender in which the Agent will
record the names and addresses of the Lenders and the Commitments of, and
principal amount of the Term Loans owing to, each Lender from
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time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of the Commitments
and the Term Loans recorded therein for all purposes of this Agreement;
provided, however that the failure of the Agent to maintain the Register or an
account for any Lender shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Term Loans made to the Borrower
by such Lender in accordance with the terms of this Agreement. An assignment of
any Term Loan shall be effective only upon appropriate entries with respect
thereto being made in the Register. Any assignment or transfer of all or part of
a Term Loan evidenced by a Term Note shall be registered on the Register only
upon surrender for registration of assignment or transfer of the Term Note
evidencing such Term Loan, accompanied by a duly executed Assignment and
Assumption Agreement, and thereupon one or more new Term Notes in the same
aggregate principal amount shall be issued by the Borrower in the appropriate
amount(s) to the designated assignee and the assigning Lender, if such Lender
retains any portion of its Term Loans, and the old Term Notes shall be returned
by the Agent to the Borrower marked "replaced". The Agent shall maintain a copy
of each Assignment and Assumption Agreement delivered to it as part of the
Register. The Register shall be available for inspection by the Borrower, and
the Lenders and their representatives (including counsel and accountants), at
any reasonable time and from time to time upon reasonable prior notice. Upon its
receipt of a duly completed Assignment and Assumption Agreement executed by an
assigning Lender and an assignee and meeting the requirements set forth in
Section 10.11.2 [Assignments and Participations by Lenders] hereof, the Agent
shall (i) accept such Assignment and Assumption Agreement, (ii) record the
information contained therein in the Register, and (iii) give prompt notice
thereof to the Lenders. Notwithstanding anything to the contrary contained
herein, no assignment under Section 10.11.2 shall be effective unless and until
the Agent shall have recorded such assignment in the Register. The Agent shall
record the name of the transferor, the name of the transferee, and the amount of
the transfer in the Register after receipt of all documents required pursuant to
Section 10.11.2 and such other documents as the Agent may reasonably request.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
IN WITNESS HWEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year first
written above.
ATTEST: ARCH WESTERN RESOURCES, LLC
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary Vice President and Treasurer
[Seal]
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
BNP PARIBAS
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
N M ROTHSCHILD & SONS LIMITED
By: /s/ ▇.▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Director
By: /s/ ▇. ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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[SIGNATURE PAGE TO ARCH WESTERN RESOURCES, LLC
CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
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