EXHIBIT 4.2
$675,000,000 TERM LOAN
CREDIT AGREEMENT
by and among
ARCH WESTERN RESOURCES, LLC
and
THE BANKS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent
and
NATIONSBANK, N.A.,
as Documentation Agent
Dated as of June 1, 1998
TABLE OF CONTENTS
SECTION PAGE
1. CERTAIN DEFINITIONS....................................................1
1.1 Certain Definitions..............................................1
1.2 Construction....................................................23
1.3 Accounting Principles...........................................25
2. TERM LOAN FACILITY....................................................25
2.1 Term Loan Commitments...........................................25
2.2 Nature of Banks' Obligations with Respect to Term Loans.........25
2.3 Term Loan Notes.................................................26
2.4 Use of Proceeds.................................................26
2.5 Request to Select Interest Rate Options.........................26
3. INTEREST RATES........................................................26
3.1 Interest Rate Options...........................................26
3.2 Interest Periods................................................28
3.3 Interest After Default..........................................29
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs;
Deposits Not Available..........................................29
3.5 Selection of Interest Rate Options..............................31
4. PAYMENTS..............................................................31
4.1 Payments........................................................31
4.2 Pro Rata Treatment of Banks.....................................31
4.3 Interest Payment Dates..........................................32
4.4 Prepayments.....................................................32
4.5 Additional Compensation in Certain Circumstances................34
4.6 Notes...........................................................35
4.7 Taxes...........................................................35
5. REPRESENTATIONS AND WARRANTIES........................................37
5.1 Representations and Warranties..................................37
5.2 Continuation of Representations.................................46
6. CONDITIONS OF LENDING.................................................46
6.1 Conditions to Closing...........................................46
6.2 Syndication.....................................................50
7. COVENANTS.............................................................51
7.1 Affirmative Covenants...........................................51
7.2 Negative Covenants..............................................54
7.3 Reporting Requirements..........................................60
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8. DEFAULT...............................................................63
8.1 Events of Default...............................................63
8.2 Consequences of Event of Default................................67
9. THE AGENTS............................................................69
9.1 Appointment.....................................................69
9.2 Delegation of Duties............................................70
9.3 Nature of Duties; Independent Credit Investigation..............70
9.4 Actions in Discretion of Agents; Instructions From the
Banks...........................................................71
9.5 Reimbursement and Indemnification of Agents by the Borrower.....71
9.6 Exculpatory Provisions; Limitation of Liability.................72
9.7 Reimbursement and Indemnification of Agents by the Banks........73
9.8 Reliance by Agents..............................................73
9.9 Notice of Default...............................................73
9.10 Notices.........................................................74
9.11 Banks in Their Individual Capacities............................74
9.12 Holders of Notes................................................74
9.13 Equalization of Banks...........................................74
9.14 Successor Agents................................................75
9.15 Administrative Agent's Fee......................................76
9.16 Availability of Funds...........................................76
9.17 Calculations....................................................76
9.18 Beneficiaries...................................................76
10. MISCELLANEOUS.........................................................77
10.1 Modifications, Amendments or Waivers............................77
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.......78
10.3 Reimbursement and Indemnification of Banks by the Borrower;
Taxes...........................................................78
10.4 Holidays........................................................79
10.5 Funding by Branch, Subsidiary or Affiliate......................79
10.6 Notices.........................................................80
10.7 Severability....................................................80
10.8 Governing Law...................................................81
10.9 Prior Understanding.............................................81
10.10 Duration; Survival..............................................81
10.11 Successors and Assigns..........................................81
10.12 Confidentiality.................................................83
10.13 Counterparts....................................................84
10.14 Agent's or Bank's Consent.......................................84
10.15 Exceptions......................................................84
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL..........................84
10.17 Tax Withholding Clause..........................................85
10.18 Joinder of Guarantors...........................................85
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A) - PRICING GRID
SCHEDULE 1.1(B) - COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
SCHEDULE 5.1.2 - CERTAIN INFORMATION REGARDING CAPITALIZATION OF
BORROWER AND ITS SUBSIDIARIES
SCHEDULE 5.1.11 - CONSENTS AND APPROVALS
SCHEDULE 5.1.22 - PARTNERSHIP AGREEMENTS; LLC AGREEMENTS
SCHEDULE 7.2.6 - CERTAIN MATTERS REGARDING SUBSIDIARIES,
PARTNERSHIPS AND JOINT VENTURES
EXHIBITS
EXHIBIT 1.1(A)(1) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(C)(2) - COLLATERAL AGENCY AND SHARING 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(P)(1) - PLEDGE AGREEMENT (INVESTMENT PROPERTY)
EXHIBIT 1.1(P)(2) - PLEDGE AGREEMENT (SUBSIDIARY EQUITY INTERESTS)
EXHIBIT 1.1(T) - TERM NOTE
EXHIBIT 2.5 - RATE REQUEST
EXHIBIT 6.1.4 - OPINION OF COUNSEL
EXHIBIT 7.3.3 - QUARTERLY COMPLIANCE CERTIFICATE
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of June 1, 1998, and is made by and
among ARCH WESTERN RESOURCES, LLC, a Delaware limited liability company (the
"Borrower"), the BANKS (as hereinafter defined), ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, in its capacity as syndication agent, NATIONSBANK, N.A., in its
capacity as documentation agent, and PNC BANK, NATIONAL ASSOCIATION, in its
capacity as administrative agent for the Banks under this Agreement.
WITNESSETH:
WHEREAS, the Borrower has requested the Banks to provide to the Borrower a
$675,000,000 term loan facility;
WHEREAS, the term loan facility shall be used to finance the Distribution
(as hereinafter defined); and
WHEREAS, the Banks are willing to provide such credit upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS.
In addition to words and terms defined elsewhere in this Agreement,
the following words and terms shall have the following meanings, respectively,
unless the context hereof clearly requires otherwise:
ACC shall mean the U.S. operations of ARCO Coal Company, a
division of ARCO.
ACC ANNUAL STATEMENTS shall have the meaning assigned to such
term in Section 5.1.7(i).
ACC BALANCE SHEET shall mean the audited, consolidated balance
sheet of ACC as of December 31, 1997.
ACC GROUP shall mean collectively, ARCO and each Affiliate of
ARCO party to any Acquisition Document.
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, modified or
supplemented after the Closing Date as permitted by Section 7.2.14.
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.
ADJUSTED EBITDDA for any period of determination shall mean
with respect to any Person the sum of income from operations before the effect
of changes in accounting principles, nonrecurring charges and extraordinary
items, net interest expense, income taxes, depreciation, depletion and
amortization in each case for such period determined in accordance with GAAP.
For purposes of calculating the Fixed Charge Coverage Ratio (i) Adjusted EBITDDA
of the Borrower and its Subsidiaries, including the Appropriate Percentage of
Adjusted EBITDDA of Canyon Fuel, shall be assumed to be $39,200,000 for the
fiscal quarter ended March 31, 1998, and (ii) Adjusted EBITDDA for the Borrower
and its Subsidiaries, including the Appropriate Percentage of Adjusted EBITDDA
of Canyon Fuel for the months of April and May, 1998, shall be determined based
upon the results from the operations of the business of such Persons for such
months by ARCO as set forth in an income statement with respect to such months
prepared by ARCO and reasonably acceptable to the Agents, shall take into
account the $1 million per month reduction in overhead resulting from the
consummation of the Acquisition, shall assume that operating lease expense of
the Borrower and its Subsidiaries, including Canyon Fuel, shall be $970,000 per
month and shall assume that interest expense for such Persons for such months
shall be zero, with such calculation of Adjusted EBITDDA for the Borrower and
its Subsidiaries for such months to be reasonably acceptable to the Agents.
Further, for purposes of calculating the Fixed Charge Coverage Ratio for the
fiscal quarters ended June 30, 1998, and September 30, 1998, Adjusted EBITDDA of
the Borrower and its Subsidiaries, including the Appropriate Percentage of
Adjusted EBITDDA of Canyon Fuel, shall be deemed to be an amount equal to: (i)
for the fiscal quarter ended June 30, 1998 the product of, (x) without
duplication, Adjusted EBITDDA of the Borrower and its Subsidiaries for the two
fiscal quarters then ended determined on a consolidated basis in accordance with
GAAP, plus the Appropriate Percentage of Adjusted EBITDDA of Canyon Fuel, for
the two fiscal quarters then ended, determined on a consolidated basis in
accordance with GAAP, multiplied by (y) two (2); and (ii) for the fiscal quarter
ended September 30, 1998 the product of, (x) without duplication, Adjusted
EBITDDA of the Borrower and its Subsidiaries for the three fiscal quarters then
ended determined on a consolidated basis in accordance with GAAP, plus the
Appropriate Percentage of Adjusted EBITDDA of Canyon Fuel for the three fiscal
quarters then ended determined on a consolidated basis in accordance with GAAP,
multiplied by (y) four-thirds (4/3).
ADMINISTRATIVE AGENT shall mean PNC Bank, National
Association, in its capacity as administrative agent for the Banks under this
Agreement and its successors in such capacity.
ADMINISTRATIVE AGENT'S FEE shall have the meaning assigned to
that term in Section 9.15.
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ADMINISTRATIVE AGENT'S LETTER shall have the meaning assigned
to that term in Section 9.15.
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 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. Notwithstanding the foregoing, a
Subsidiary of the Borrower shall not be deemed an Affiliate of the Borrower.
AGENTS shall mean collectively the Administrative Agent, the
Documentation Agent and the Syndication Agent, and AGENT shall mean any one of
the Agents, individually.
AGREEMENT shall mean this Credit Agreement, as the same may be
supplemented or amended from time to time, including all schedules and exhibits.
APPLICABLE MARGIN shall mean, as applicable:
(A) the percentage spread to be added to Base Rate under the
Base Rate Option at the indicated level of Leverage Ratio for any period during
which a Debt Rating is not in effect as set forth in the pricing grid on
SCHEDULE 1.1(A) PART (A) below the heading "Term Loan Base Rate Spread,"
(B) the percentage spread to be added to Base Rate under the
Base Rate Option at the indicated level of Leverage Ratio for any period during
which a Debt Rating is in effect as set forth in the pricing grid on SCHEDULE
1.1(A) PART (B) below the heading "Term Loan Base Rate Spread,"
(C) the percentage spread to be added to Euro-Rate under the
Euro-Rate Option at the indicated level of Leverage Ratio for any period during
which a Debt Rating is not in effect as set forth in the pricing grid on
SCHEDULE 1.1(A) PART (A) below the heading "Term Loan Euro-Rate Spread," or
(D) the percentage spread to be added to Euro-Rate under the
Euro-Rate Option at the indicated level of Leverage Ratio for any period during
which a Debt Rating is in effect as set forth in the pricing grid on SCHEDULE
1.1(A) PART (B) below the heading "Term Loan Euro-Rate Spread."
The Applicable Margin shall be computed in accordance with the parameters set
forth on SCHEDULE 1.1(A). Notwithstanding the foregoing, it is expressly agreed
that following the Closing Date through and including the Initial Delivery Date,
the Applicable Margin shall be
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such amount as determined in accordance with SCHEDULE 1.1(A) but no less than
the amount set forth in the pricing grid in Level V of PART(A) of SCHEDULE
1.1(A). For periods after the Initial Delivery Date, until such time as the
Parent's senior unsecured long-term debt, on a consolidated basis, has been
rated Investment Grade, the Applicable Margin shall be the amount determined
under clause (A) or clause (C) above, and for any period thereafter when a Debt
Rating is in effect the Applicable Margin shall be the amount determined under
clause (B) or clause (D) above.
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.
ARCH CREDIT FACILITY shall mean that certain Credit Agreement
by and among Parent, PNC Bank as administrative agent, ▇▇▇▇▇▇ as syndication
agent and First Union National Bank of Virginia as documentation agent,
providing for a $600,000,000 revolving credit facility and a $300,000,000 term
loan facility to Parent, as the same may be amended, restated, modified or
supplemented from time to time after the date hereof.
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 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.
ARRANGERS shall mean PNC Bank and ▇▇▇▇▇▇.
ASSIGNMENT AND ASSUMPTION AGREEMENT shall mean an Assignment
and Assumption Agreement by and among a Purchasing Bank, a Transferor Bank and
the Administrative Agent, as agent and on behalf of the remaining Banks,
substantially in the form of EXHIBIT 1.1(A)(1).
AU SUB LLC AGREEMENT shall mean that certain Limited Liability
Company Agreement, dated as of April 8, 1998, as amended, of AU Sub LLC, a
limited liability company organized and existing under the laws of the State of
Delaware.
AUTHORIZED OFFICER shall mean those individuals, designated by
written notice to the Administrative Agent from the Borrower, authorized to
execute notices, reports and other documents on behalf of the Loan Parties
required hereunder. The Borrower may amend
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such list of individuals from time to time by giving written notice of such
amendment to the Administrative Agent.
AVERAGE BALANCE OF THE ELIGIBLE NOTE RECEIVABLE shall mean,
for any period of determination, the daily average outstanding principal amount
of the Eligible Note Receivable during such period.
AVERAGE PLEDGED ACCOUNT BALANCE shall mean, for any period of
determination, the daily average balance in the "Escrow Account" (as such term
is defined in the Pledge Agreement (Investment Property) pledged on a first
priority perfected basis to the Administrative Agent for the benefit of the
Banks pursuant to the Pledge Agreement (Investment Property) during such period.
AWAC shall mean Arch Western Acquisition Corporation, a
corporation organized and existing under the laws of the State of Delaware.
BANKS shall mean the financial institutions named on SCHEDULE
1.1(B) and their respective successors and assigns as permitted hereunder, each
of which is referred to herein as a Bank.
BASE NET WORTH shall mean the sum of $375,000,000 plus 50% of
consolidated net income of the Borrower and its Subsidiaries (before the
after-tax effect of changes in accounting principles) for each fiscal quarter in
which net income was earned plus 100% of the net increase in Consolidated
Tangible Net Worth resulting from the issuance of any equity securities by the
Borrower, for the period from the Closing 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 Administrative 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 Administrative Agent, or (ii) the Federal
Funds Effective 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.
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.
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.
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BORROWING DATE shall mean, with respect to any Loan, the date
for the making thereof or the renewal or conversion thereof at or to the same or
a different Interest Rate Option, which shall be a Business Day.
BORROWING TRANCHE shall mean specified portions of Loans
outstanding as follows: (i) any Loans to which a 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 Loans to which a Base Rate applies shall
constitute one Borrowing Tranche.
BUSINESS shall mean the business of owning and operating the
U.S. domestic coal properties of ACC, substantially as operated by ACC at the
time of the closing of the Acquisition Transactions.
BUSINESS DAY shall mean any day other than a Saturday or
Sunday or a legal holiday on which commercial banks are authorized or required
to be closed for business in Pittsburgh, Pennsylvania and New York, New York;
and if the applicable Business Day relates to any 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.
CLOSING DATE shall mean the Business Day on which the Term
Loans shall be made, which shall be June 1, 1998.
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 granted or purported to be granted to
the Administrative Agent for the benefit of the Banks under the Collateral
Documents.
COLLATERAL DOCUMENTS shall mean collectively, the Pledge
Agreement (Subsidiary Equity Interests), the Pledge Agreement (Investment
Property), the Collateral Sharing Agreement, and the Note Pledge Agreement, as
the same may be supplemented or amended from time to time in accordance herewith
or therewith and Collateral Document shall mean any of the Collateral Documents.
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COLLATERAL SHARING AGREEMENT shall mean the Collateral Agency
and Sharing Agreement among the Borrower, the Guarantors, the Banks, the Swap
Parties (as defined therein) and the Collateral Agent (as defined therein),
substantially in the form of EXHIBIT 1.1(C)(2) hereto.
COMMITMENT shall mean as to any Bank its Term Loan Commitment
and Commitments shall mean the aggregate of the Term Loan Commitments of all of
the Banks.
CONSOLIDATED TANGIBLE NET WORTH shall mean as of any date of
determination, total equity less intangible assets of the Borrower and its
Subsidiaries as of such date determined and consolidated in accordance with
GAAP, and adjusted to exclude the after tax effect of any changes in accounting
principles subsequent to the Closing Date.
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 difference between the following (a) and (b): (a) the sum of the following
for such Person, as of such date, determined in accordance with GAAP: (i) all
indebtedness for borrowed money (including, without limitation, all subordinated
indebtedness but excluding obligations under any interest rate swap, cap, collar
or floor agreement or other interest rate management device), (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 of indebtedness for borrowed money, minus
(b) the Permitted Reduction Amount.
DEBT RATING shall mean the rating of the Parent's senior
unsecured long-term debt 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 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
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any other similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing transactions.
DISTRIBUTION shall mean a Special Distribution (as defined in
the Contribution Agreement) of $700,000,000 to be paid by the Borrower to Delta
Housing pursuant to the Contribution Agreement, the proceeds of which will be
further distributed by Delta Housing to ARCO on or about the date of this
Agreement, in accordance with, and subject to adjustment as provided in, the
Contribution Agreement.
DOCUMENTATION AGENT shall mean NationsBank, N.A. in its
capacity as documentation agent under this Agreement, and its successors in such
capacity.
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 the sum of income from operations and interest income all
before the effect of changes in accounting principles, nonrecurring charges and
extraordinary items, interest expense, income taxes, depreciation, depletion and
amortization in each case for such period determined in accordance with GAAP.
For purposes of calculating the Leverage Ratio, (i) EBITDDA of the Borrower and
its Subsidiaries, including the Appropriate Percentage of EBITDDA of Canyon
Fuel, shall be assumed to be $39,200,000 for the fiscal quarter ended March 31,
1998, and (ii) EBITDDA for the Borrower and its Subsidiaries, including the
Appropriate Percentage of EBITDDA of Canyon Fuel for the months of April and
May, 1998, shall be determined based upon the results from the operations of the
business of such Persons for such months by ARCO as set forth in an income
statement with respect to such months prepared by ARCO and reasonably acceptable
to the Agents, shall take into account the $1,000,000 per month reduction in
overhead resulting from the consummation of the Acquisition, shall assume that
operating lease expense of the Borrower and its Subsidiaries, including Canyon
Fuel, shall be $970,000 per month and shall assume that interest expense for
such Persons for such months shall be zero, with such calculation of EBITDDA for
the Borrower and its Subsidiaries for such months to be reasonably acceptable to
the Agents. Further, for purposes of calculating the Leverage Ratio for the
fiscal quarters ended June 30, 1998, and September 30, 1998, EBITDDA of the
Borrower and its Subsidiaries, including the Appropriate Percentage of EBITDDA
of Canyon Fuel, shall be deemed to be an amount equal to: (i) for the fiscal
quarter ended June 30, 1998 the product of, (x) without duplication, EBITDDA of
the Borrower and its Subsidiaries for the two fiscal quarters then ended
determined on a consolidated basis in accordance with GAAP, plus the Appropriate
Percentage of EBITDDA of Canyon Fuel, for the two fiscal quarters then ended,
determined on a consolidated basis in accordance with GAAP, multiplied by (y)
two (2); and (ii) for the fiscal quarter ended September 30, 1998 the product
of, (x) without duplication, EBITDDA of the Borrower and its Subsidiaries for
the three fiscal quarters then ended determined on a consolidated basis in
accordance with GAAP, plus the Appropriate Percentage of EBITDDA of Canyon Fuel
for the three fiscal quarters then ended determined on a consolidated basis in
accordance with GAAP, multiplied by (y) four-thirds (4/3).
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ELIGIBLE NOTE RECEIVABLE shall mean that certain note payable
by the Parent to the Borrower, as the same may be amended, restated or modified
from time to time, satisfactory in form and substance to the Agents (including
the providing of and terms and conditions of all collateral and guarantees
provided as security therefor), and pledged, on a first priority perfected
basis, to the Administrative Agent for the benefit of the Banks pursuant to the
Note Pledge Agreement.
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 Environmental Law, Environmental Permit, Regulated
Substances or Hazardous Substances or arising from alleged injury or threat of
injury to the environment.
ENVIRONMENTAL COMPLAINT shall mean any written complaint
setting forth a cause of action for personal injury or property damage, natural
resource damage, contribution or indemnity for response costs, civil penalties,
criminal penalties, or declaratory or equitable relief arising under any
Environmental Law or any order, notice of violation, citation, subpoena, request
for information or other written notice of any type issued by an Official Body
pursuant to any Environmental Law.
ENVIRONMENTAL CONDITIONS shall mean the presence 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 or remediation of such Regulated Substances or which otherwise
constitutes a violation of Environmental Laws.
ENVIRONMENTAL LAW shall mean any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to the
environment or any release or disposal of or contamination by Hazardous
Substances.
ENVIRONMENTAL PERMIT shall mean any permit, approval, license
or other authorization required under any Environmental Law.
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 Loans comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period,
the interest rate per annum determined by the Administrative Agent by dividing
(the resulting quotient
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rounded upward to the nearest 1/100 of 1% per annum) (i) the rate of interest
determined by the Administrative 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 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 Administrative 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 Bankers'
Euro-Rate = 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 Administrative Agent shall give prompt notice to the
Borrower and the Banks of the Euro-Rate as determined or adjusted in accordance
herewith, which determination shall be conclusive absent manifest error.
EURO-RATE INTEREST PERIOD shall mean the Interest Period
applicable to a Loan subject to the Euro-Rate Option.
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.
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 Administrative 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 and referred to therein as an "Event of Default."
EXPIRATION DATE shall mean, with respect to the Commitments,
May 31, 2003.
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
- 10 -
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.
FINANCIAL PROJECTIONS shall have the meaning assigned to that
term in Section 5.1.7(iii).
FIXED CHARGE COVERAGE RATIO shall mean the ratio of (a) the
sum, without duplication, of Adjusted EBITDDA of the Borrower and its
Subsidiaries, plus the Appropriate Percentage of each Special Subsidiary's
Adjusted EBITDDA, each on a consolidated basis in accordance with GAAP, plus
operating lease expense of the Borrower and its Subsidiaries, plus 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 Net
Interest Expense (other than Permitted Loan Origination Expense) of the Borrower
and its Subsidiaries plus the Appropriate Percentage of Net 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 the
Appropriate Percentage of operating lease expense of each Special Subsidiary,
each on a consolidated basis in accordance with GAAP, all calculated as of the
last day of each fiscal quarter for the four fiscal quarters of the Borrower
then ended. It is assumed that operating lease expense of the Borrower and its
Subsidiaries, including Canyon Fuel shall be $970,000 per month for the months
of April and May, 1998 and that interest expense for such Persons for such
months shall be zero. For purposes of calculating the Fixed Charge Coverage
Ratio for the fiscal quarters ended June 30, 1998, September 30, 1998 and
December 31, 1998, operating lease expense of the Borrower and its Subsidiaries,
including the Appropriate Percentage of operating lease expense of Canyon Fuel,
shall be deemed to be an amount equal to: (i) for the fiscal quarter ended June
30, 1998, the product of, (x) without duplication, operating lease expense of
the Borrower and its Subsidiaries determined and consolidated in accordance with
GAAP for such fiscal quarter, plus the Appropriate Percentage of operating lease
expense of Canyon Fuel for such fiscal quarter determined in accordance with
GAAP, multiplied by (y) four (4); (ii) for the fiscal quarter ended September
30, 1998, the product of, (x) without duplication, operating lease expense of
the Borrower and its Subsidiaries for the two fiscal quarters then ended
determined and consolidated in accordance with GAAP, plus the Appropriate
Percentage of operating lease expense of Canyon Fuel for the two fiscal quarters
then ended determined in accordance with GAAP, multiplied by (y) two (2); and
(iii) for the fiscal quarter ended December 31, 1998, the product of, (x)
without duplication, operating lease expense of the Borrower and its
Subsidiaries for the three fiscal quarters then ended determined and
consolidated in accordance with GAAP, plus the Appropriate Percentage of
operating lease expense of Canyon Fuel for the three fiscal quarters then ended,
determined in accordance with GAAP, multiplied by (y) four-thirds (4/3). For
purposes of calculating the Fixed Charge Coverage Ratio for the fiscal quarters
ended June 30, 1998, September 30, 1998 and December 31, 1998, Net Interest
Expense of the Borrower and its Subsidiaries, including the
- 11 -
Appropriate Percentage of Net Interest Expense of Canyon Fuel, shall be deemed
to be an amount equal to: (i) for the fiscal quarter ended June 30, 1998, the
product of, (x) without duplication, Net Interest Expense of the Borrower and
its Subsidiaries determined and consolidated in accordance with GAAP for such
fiscal quarter, plus the Appropriate Percentage of Net Interest Expense of
Canyon Fuel for such fiscal quarter determined in accordance with GAAP,
multiplied by (y) four (4); (ii) for the fiscal quarter ended September 30,
1998, the product of, (x) without duplication, Net Interest Expense of the
Borrower and its Subsidiaries for the two fiscal quarters then ended determined
and consolidated in accordance with GAAP, plus the Appropriate Percentage of Net
Interest Expense of Canyon Fuel for the two fiscal quarters then ended
determined in accordance with GAAP, multiplied by (y) two (2); and (iii) for the
fiscal quarter ended December 31, 1998, the product of, (x) without duplication,
Net Interest Expense of the Borrower and its Subsidiaries for the three fiscal
quarters then ended determined and consolidated in accordance with GAAP, plus
the Appropriate Percentage of Net Interest Expense of Canyon Fuel for the three
fiscal quarters then ended, determined in accordance with GAAP, multiplied by
(y) four-thirds (4/3).
GAAP shall mean Generally Accepted Accounting Principles as
are in effect from time to time, subject to the provisions of Section 1.3, 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.
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 Administrative Agent for the benefit
of the Banks.
HAZARDOUS SUBSTANCES shall mean petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any hazardous or solid waste,
hazardous substance or chemical substance, as such terms are defined under the
Resource Conservation and Recovery Act (42 U.S.C. Sections 4901 ET SEQ.), the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Sections 9601 ET SEQ.), the Toxic Substances Control Act (15 U.S.C.
Sections 2601 ET SEQ.) or any similar state law.
- 12 -
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 and agreed that Derivatives Obligations
shall not be deemed to be Indebtedness.
INELIGIBLE SECURITY shall mean any security which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
INITIAL ANNUAL STATEMENTS AND COMPLIANCE CERTIFICATE shall
mean collectively with respect to the fiscal year of the Borrower ended December
31, 1998, the annual financial statements of the Borrower and its Subsidiaries
consisting of the unaudited consolidated and consolidating balance sheet as of
the end of such fiscal year, related consolidated statements of income and
equity and related consolidated statement of cash flows for the fiscal year then
ended, together with the duly executed related compliance certificate required
to be delivered to the Administrative Agent and the Banks pursuant to Section
7.3.3. It is acknowledged and agreed that the Initial Annual Statements and
Compliance Certificate are to be delivered by the Borrower for purposes of
calculating the Leverage Ratio as of December 31, 1998 in order to determine the
Applicable Margin. Notwithstanding the delivery of the Initial Annual Statements
and Compliance Certificate, the Borrower shall still be required to comply with
the provisions of Section 7.3.2 and deliver the audited financial statements
required thereby, together with the related Compliance Certificate required to
be delivered under Section 7.3.3.
INITIAL DELIVERY DATE shall mean the date the Borrower
delivers to the Administrative Agent and the Banks the Initial Annual Statements
and Compliance Certificate.
INSOLVENCY PROCEEDING shall mean, with respect to any Person,
(a) a case, action or proceeding with respect to such Person (i) before any
court or any other Official Body under any bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or (ii) for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of any Loan Party or otherwise
relating to the liquidation, dissolution, winding-up or relief of such Person,
or (b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect of
such Person's creditors generally or any substantial portion of its creditors,
undertaken under any Law.
- 13 -
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.
INVESTMENT GRADE shall mean the rating of the Parent's senior
unsecured long-term debt, on a consolidated basis, of BBB- or better by Standard
& Poor's AND Baa3 or better by Moody's.
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 Administrative 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 or award of any Official Body.
LEVERAGE RATIO shall mean the ratio of the sum of, without
duplication, Debt of the Borrower and its Subsidiaries, plus the Appropriate
Percentage of Debt of each Special Subsidiary, each on a consolidated basis in
accordance with GAAP (as the numerator) to EBITDDA of the Borrower and its
Subsidiaries, plus 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.
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
- 14 -
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, the AU Sub LLC Agreement, the State Leases LLC
Agreement and the Thunder Basin LLC Agreement.
LLC INTERESTS shall have the meaning given to such term in
Section 5.1.2.
LOAN DOCUMENTS shall mean this Agreement, the Administrative
Agent's Letter, the Collateral Sharing Agreement, the Guaranty Agreement, the
Pledge Agreement (Subsidiary Equity Interests), the Pledge Agreement (Investment
Property), the Note Pledge Agreement, the 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 be
supplemented or amended from time to time in accordance herewith or therewith,
and Loan Document shall mean any of the Loan Documents.
LOAN PARTIES shall mean the Borrower and the Guarantors.
LOANS shall mean collectively and Loan shall mean separately
all Term Loans or any Term Loan.
MANDATORY PREPAYMENT shall have the meaning assigned to such
term in Section 4.4.4.
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 Banks, to the extent permitted, to enforce their legal remedies
pursuant to this Agreement or any other Loan Document.
MATERIAL CONTRACTS shall mean collectively (i) the Acquisition
Documents, (ii) all other 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 is required to file as an
exhibit to any annual, quarterly or other report required to be filed by the
Parent under the Securities Exchange Act of 1934, as amended, and (iii) all coal
supply agreements or contracts (or related coal supply agreements or contracts)
under which the Borrower or any Subsidiary of the Borrower is required, over the
remaining term of such agreement or contract as of the Closing Date, to deliver
one million (1,000,000) tons or more of coal.
- 15 -
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 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.
▇▇▇▇▇▇ shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New York.
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.
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 INTEREST EXPENSE shall mean, for any period of
determination, for any Person, interest expense of such Person for such period
determined in accordance with GAAP, if applicable, reduced by the Permitted
Adjustment Amount.
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 Administrative Agent for the benefit of the Banks.
NOTES shall mean the Term Notes.
NOTICES shall have the meaning assigned to that term in
Section 10.6.
OBLIGATION shall mean any obligation or liability of any of
the Loan Parties to any Agent or any of the Banks, 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 Notes, the Administrative Agent's Letter or any other Loan Document.
- 16 -
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.
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.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
PERMITTED ACQUISITIONS shall have the meaning assigned to such
term in Section 7.2.3.
PERMITTED ADJUSTMENT AMOUNT shall mean for any period of
determination, if throughout such period either (i) the Parent's senior
unsecured long-term debt, on a consolidated basis, is rated BB or better by
Standard & Poor's and Ba2 or better by Moody's, or (ii) the Leverage Ratio (as
defined in the Arch Credit Facility) is less than or equal to 4.0 to 1.0, the
amount of interest income of the Borrower determined in accordance with GAAP
with respect to the Eligible Note Receivable for such period.
PERMITTED INVESTMENTS shall mean
(i) direct obligations of the United States of America or any
agency or instrumentality thereof or obligations backed by the full faith and
credit of the United States of America maturing in twelve (12) months or less
from the date of acquisition;
(ii) commercial paper maturing in 180 days or less rated not
lower than A-1, by Standard & Poor's or P-1 by Moody's 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 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;
- 17 -
(iii) Liens of mechanics, materialmen, warehousemen, carriers,
or other like Liens, securing obligations incurred in the ordinary course of
business that are not yet due and payable and Liens of landlords securing
obligations to pay lease payments that are not yet due and payable or in
default;
(iv) Good-faith pledges or deposits 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) Liens granted in the Collateral, subject to the
Collateral Sharing Agreement, to any Bank providing the Interest Rate Protection
Agreement required by Section 7.1.13 [Interest Rate Protection];
(vii) Liens securing Indebtedness of not more than $25,000,000
at any time;
(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
Administrative Agent for the benefit of the Banks 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:
(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;
- 18 -
(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;
(ix) Liens granted in the Collateral under the Collateral
Documents to the Administrative Agent for the benefit of the Banks; and
(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.
PERMITTED LOAN ORIGINATION EXPENSE shall mean the aggregate
amount of all fees and expenses incurred by the Borrower in connection with the
closing of the transactions under this Agreement which the Borrower is required
to capitalize in accordance with GAAP.
PERMITTED REDUCTION AMOUNT shall mean the sum of:
(i) for any period of determination, if throughout such period
either (i) the Parent's senior unsecured long-term debt, on a consolidated
basis, is rated BB or better by Standard & Poor's and Ba2 or better by ▇▇▇▇▇'▇,
or (ii) the Leverage Ratio (as defined in the Arch Credit Facility) is less than
or equal to 4.0 to 1.0, the amount of the Average Balance of the Eligible Note
Receivable for such period; and
(ii) for any period of determination, the amount of the
Average Pledged Account Balance for such period.
PERSON shall mean any individual, corporation, partnership,
limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.
PLAN shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is maintained by
any member of the ERISA Group for employees of any member of the ERISA Group or
(ii) has at any time within the preceding five years been maintained by any
entity which was at such time a member of the ERISA Group for employees of any
entity which was at such time a member of the ERISA Group.
PLEDGE AGREEMENT (INVESTMENT PROPERTY) shall mean the Pledge
Agreement (Investment Property) substantially in the form of EXHIBIT 1.1(P)(1)
executed and delivered by the Borrower and each of its Subsidiaries to the
Administrative Agent for the benefit of the Banks, as the same may be
supplemented, replaced, restated or amended from time to time in accordance
herewith or therewith.
- 19 -
PLEDGE AGREEMENT (SUBSIDIARY EQUITY INTERESTS) shall mean the
Pledge Agreement (Subsidiary Equity Interests) substantially in the form of
EXHIBIT 1.1(P)(2) executed and delivered by the Borrower and each of its
Subsidiaries pledging equity interests which it owns in any other Subsidiary of
the Borrower to the Administrative Agent for the benefit of the Banks, as the
same may be supplemented, replaced, restated or amended from time to time in
accordance herewith or therewith.
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 Administrative Agent or the
Required Banks, or any combination of the foregoing, would constitute an Event
of Default.
PRINCIPAL OFFICE shall mean the main banking office of the
Administrative Agent in Pittsburgh, Pennsylvania.
PRIOR SECURITY INTEREST shall mean a valid and enforceable
perfected first-priority security interest under the Uniform Commercial Code 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.
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.
PURCHASING BANK shall mean a Bank which becomes a party to
this Agreement by executing an Assignment and Assumption Agreement.
RATABLE SHARE shall mean the proportion that a Bank's
Commitment bears to the Commitments of all of the Banks.
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.
REGULATED SUBSTANCES shall mean any substance, the generation,
manufacture, extraction, processing, distribution, treatment, storage, disposal,
transport,
- 20 -
recycling, reclamation, use, reuse, spilling, leaking, dumping, injection,
pumping, leaching, emptying, discharge, escape, release or other management or
mismanagement of which is regulated by the Environmental Laws.
REGULATION U shall mean Regulation U, T or X as promulgated by
the Board of Governors of the Federal Reserve System, as amended from time to
time.
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 BANKS shall mean
(i) if there are no Term Loans outstanding, Banks whose
Commitments aggregate at least 51% of the Commitments of all of the Banks, or
(ii) if there are Term Loans outstanding, Banks whose
outstanding Term Loans aggregate at least 51% of the total principal amount of
all of the Term Loans then outstanding.
SEC shall mean the Securities and Exchange Commission or any
governmental agencies substituted therefor.
SIGNIFICANT SUBSIDIARY shall mean any Subsidiary of Borrower
which at any time (i) has gross revenues equal to or in excess of five percent
(5%) of the gross revenues of the Borrower and its Subsidiaries on a
consolidated basis, or (ii) has total assets equal to or in excess of five
percent (5%) of the total assets of the Borrower and its Subsidiaries, in either
case, as determined and consolidated in accordance with GAAP.
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
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at 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 (i) with respect to which the ownership of equity interests thereof by
the Borrower or any Subsidiary of
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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]; (iii) with respect to which the
equity interests thereof were acquired by the Borrower or Subsidiary of the
Borrower in an arms-length transaction; (iv) the operations of which the
Borrower has management control over; and (v) a majority of the economic equity
interests of which are owned directly or indirectly by the Borrower.
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 for purposes of
calculating the Leverage Ratio and the Fixed Charge Coverage Ratio as described
more fully in the definitions of "Adjusted EBITDDA," "EBITDDA," "Leverage Ratio"
and "Fixed Charge Coverage Ratio."
STATE LEASES LLC AGREEMENT shall mean that certain Limited
Liability Company Agreement, dated as of April 8, 1998, as amended, of State
Leases LLC, a limited liability company organized and existing under the laws of
the State of Delaware.
SUBSIDIARY SHARES shall have the meaning assigned to that term
in Section 5.1.2.
SYNDICATION AGENT shall mean ▇▇▇▇▇▇ in its capacity as
syndication agent for the Banks under this Agreement and its successors in such
capacity.
SYNDICATION DATE shall mean the earlier of (i) a date after
the Closing Date which is selected by the Arrangers and notice of which is given
by the Arrangers to the Borrower at least five (5) Business Days prior thereto
and (ii) or the 90th day following the Closing Date.
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.
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TERM LOAN shall have the meaning given to such term in Section
2.1; Term Loans shall mean collectively all of the Term Loans.
TERM LOAN COMMITMENT shall mean, as to any Bank at any time,
the amount initially set forth opposite its name on SCHEDULE 1.1(B) in the
column labeled "Amount of Commitment for Term Loans," and thereafter on Schedule
I to the most recent Assignment and Assumption Agreement executed by such Bank,
and Term Loan Commitments shall mean the aggregate Term Loan Commitments of all
of the Banks.
TERM NOTES shall mean collectively and Term Note shall mean
separately all of the Term Notes of the Borrower in the form of EXHIBIT 1.1(T)
issued by the Borrower at the request of a Bank pursuant to Section 2.3
evidencing the Term Loans, together with all amendments, extensions, renewals,
replacements, refinancings or refunds thereof in whole or in part.
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 BANK shall mean the selling Bank pursuant to an
Assignment and Assumption Agreement.
UNIFORM COMMERCIAL CODE shall have the meaning assigned to
that term in Section 5.1.21.
U.S. shall mean the United States of America.
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 Administrative
Agent or the Banks shall be deemed to include good-faith estimates by the
Administrative Agent or the Banks (in the case of quantitative determinations)
and good-faith beliefs by the Administrative Agent or the Banks (in the case of
qualitative determinations) and such determination shall be conclusive absent
manifest error;
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1.2.3 ADMINISTRATIVE AGENT'S DISCRETION AND CONSENT.
whenever the Administrative Agent or the Banks 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;
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
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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 date hereof applied on a basis
consistent with those used in preparing the Annual Statements referred to in
Section 5.1.7(i) [Historical Statements]. In the event of any change after the
date hereof 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. Nothing in this Section 1.3 will require the
Borrower or any of its Subsidiaries to continue accounting methods used by ACC
in preparing the ACC Annual Statements.
2. TERM LOAN FACILITY
2.1 TERM LOAN COMMITMENTS.
Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, each Bank severally agrees to
make a term loan (the "Term Loan") to the Borrower on the Closing Date in such
principal amount as the Borrower shall request up to, but not exceeding, such
Bank's Term Loan Commitment.
2.2 NATURE OF BANKS' OBLIGATIONS WITH RESPECT TO TERM LOANS.
The obligations of each Bank to make a Term Loan to the Borrower
shall be in the proportion that such Bank's Term Loan Commitment bears to the
Term Loan Commitments of all Banks to the Borrower, but each Bank's Term Loan to
the Borrower shall never exceed its Term Loan Commitment. The failure of any
Bank to make a Term Loan shall not relieve any other Bank of its obligations to
make a Term Loan nor shall it impose any additional liability on any other Bank
hereunder. The Banks shall have no obligation to make Term Loans hereunder after
the Closing Date. The Term Loan Commitments are not revolving credit
commitments, and the Borrower shall not have the right to borrow, repay and
reborrow the Term Loans.
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2.3 TERM LOAN NOTES.
The Obligation of the Borrower to repay the unpaid principal amount
of the Term Loan made to it by each Bank, together with interest thereon, shall
be evidenced by a Term Note dated the Closing Date, payable to the order of each
Bank in a face amount equal to the Term Loan of such Bank. The principal amount
of each Term Note as provided therein shall be due and payable on the Expiration
Date.
2.4 USE OF PROCEEDS.
The proceeds of the Term Loans shall be used to finance a portion of
the Distribution and in accordance with Section 7.1.9 [Use of Proceeds].
2.5 REQUEST TO SELECT INTEREST RATE OPTIONS.
Except as otherwise provided herein, the Borrower may on the Closing
Date select the initial Interest Rate Option applicable to the Term Loans and
thereafter from time to time prior to the Expiration Date request the Banks to
renew or convert the Interest Rate Option applicable to existing Term Loans
pursuant to Section 3.2 [Interest Periods], by delivering to the Administrative
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 Closing 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 Closing 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 therefor
substantially in the form of EXHIBIT 2.5 (each a "Rate Request") or a request
therefor by telephone immediately confirmed in writing by letter, facsimile or
telex in the form of such Exhibit, it being understood that the Administrative
Agent may rely on the authority of any individual making such a telephonic
request without the necessity of receipt of such written confirmation. Each 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 $25,000,000 and not less than
$25,000,000 for each Borrowing Tranche to which the Euro-Rate Option applies and
in integral multiples of $500,000 and not less than the lesser of $25,000,000 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.
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
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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 four (4) 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 Bank's highest lawful rate, the rate of interest on such Term Loan
shall be limited to such Bank'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 the Applicable Margin, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate; or
(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 the Applicable Margin.
Notwithstanding the foregoing, it is expressly agreed that through and including
the Initial Delivery Date, the Applicable Margin shall be the amount determined
in accordance with the parameters set forth in SCHEDULE 1.1(A) but shall be no
less than the amount set forth on the pricing grid under Level V of PART (A) of
SCHEDULE 1.1(A). It is expressly agreed that for periods after the Initial
Delivery Date until such time as the Parent's senior unsecured long-term debt,
on a consolidated basis, has been rated Investment Grade, the Applicable Margin
shall be determined based upon PART (A) of SCHEDULE 1.1(A), and for any period
thereafter when a Debt Rating is in effect the Applicable Margin shall be the
amount determined under PART (B) of SCHEDULE 1.1(A).
3.1.2 RATE QUOTATIONS.
The Borrower may call the Administrative 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 Administrative Agent or the Banks nor
affect the rate of interest which thereafter is actually in effect when the
election is made.
3.1.3 CHANGE IN FEES OR INTEREST RATES.
If the Applicable Margin is increased or reduced with respect
to any period for which the Borrower has already paid interest, the
Administrative Agent shall recalculate the additional interest due from or to
the Borrower and shall, within fifteen (15) Business Days after
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the Borrower notifies the Administrative Agent of such increase or decrease,
give the Borrower and the Banks notice of such recalculation.
3.1.3.1 Any additional interest due from the
Borrower shall be paid to the Administrative Agent for the account of the Banks
on the next date on which an interest or fee payment is due; PROVIDED, HOWEVER,
that if there are no Term Loans outstanding or if the Term Loans are due and
payable, such additional interest shall be paid promptly after receipt of
written request for payment from the Administrative Agent.
3.1.3.2 Any interest refund due to the
Borrower shall be credited against payments otherwise due from the Borrower on
the next interest or fee payment due date or, if the Term Loans have been
repaid, the Banks shall pay the Administrative Agent for the account of the
Borrower such interest refund not later than five (5) Business Days after
written notice from the Administrative Agent to the Banks.
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 Administrative 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 such Interest Rate Option shall apply, such
Interest Period to be one, two, three or six Months; PROVIDED, HOWEVER, that
prior to the date which is the Business Day following the Syndication Date, only
such periods as the Administrative Agent and the Borrowers mutually agree, not
to exceed a period of one Month, shall be available. 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 $25,000,000 and not less than
$25,000,000;
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
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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:
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 Banks are entitled to additional compensation for
such risk and all such interest shall be payable by Borrower upon demand by
Administrative 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 Administrative 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 Administrative Agent shall have the rights specified in Section 3.4.3.
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3.4.2 ILLEGALITY; INCREASED COSTS; DEPOSITS NOT AVAILABLE.
If at any time any Bank 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 Bank in good faith with any Law or any interpretation or
application thereof by any Official Body or with any request or directive of any
such Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and
fairly reflect the cost to such Bank 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 Bank with respect
to such Term Loan in the London interbank market,
then the Administrative Agent and the Banks shall have the rights specified in
Section 3.4.3.
3.4.3 ADMINISTRATIVE AGENT'S AND BANK'S RIGHTS.
In the case of any event specified in Section 3.4.1 above, the
Administrative Agent shall promptly so notify the Banks and the Borrower
thereof, and in the case of an event specified in Section 3.4.2 above, such Bank
shall promptly so notify the Administrative Agent and endorse a certificate to
such notice as to the specific circumstances of such notice, and the
Administrative Agent shall promptly send copies of such notice and certificate
to the other Banks 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 Banks, in the case of such notice given by the
Administrative Agent, or (B) such Bank, in the case of such notice given by such
Bank, to allow the Borrower to convert to or renew a Euro-Rate Option shall be
suspended until the Administrative Agent shall have later notified the Borrower,
or such Bank shall have later notified the Administrative Agent, of the
Administrative Agent's or such Bank's, as the case may be, determination that
the circumstances giving rise to such previous determination no longer exist. If
at any time the Administrative Agent makes a determination under Section 3.4.1
and the Borrower has previously notified the Administrative 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 Bank notifies the
Administrative Agent of a determination under Section 3.4.2, the Borrower shall,
subject to the Borrower's indemnification Obligations under Section 4.5.2
[Indemnity] as to any Term Loan of the Bank 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 [Prepayments]. Absent due notice from
the Borrower of conversion or
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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.
4. PAYMENTS
4.1 PAYMENTS.
All payments and prepayments to be made in respect of principal,
interest, Administrative Agent's Fee or other fees or amounts due from the
Borrower hereunder shall be payable prior to 11:00 a.m., Pittsburgh time, on the
date when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Borrower, and without set-off,
counterclaim or other deduction of any nature, and an action therefor shall
immediately accrue. Such payments shall be made to the Administrative Agent at
the Principal Office for the ratable accounts of the Banks with respect to the
Term Loans, in U.S. Dollars and in immediately available funds, and the
Administrative Agent shall promptly distribute such amounts to the Banks in
immediately available funds, PROVIDED that in the event payments are received by
11:00 a.m., Pittsburgh time, by the Administrative Agent and such payments are
not distributed to the Banks on the same day received by the Administrative
Agent, the Administrative Agent shall pay the Banks the Federal Funds Effective
Rate with respect to the amount of such payments for each day held by the
Administrative Agent and not distributed to the Banks. The Administrative
Agent's and each Bank'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 BANKS.
The Term Loans shall be allocated to each Bank according to its
Ratable Share, and 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
(except for the Administrative Agent's Fee) or amounts due from the Borrower
hereunder to the Banks with respect to the Term Loans, shall (except as provided
in Section 3.4.3 [Administrative Agent's and Bank's Rights] in the case of an
event specified in Sections 3.4 [Euro-Rate Unascertainable, etc.], 4.4.2
[Replacement of a Bank] or 4.5 [Additional Compensation in Certain
Circumstances]) be made in proportion to the applicable Term Loans outstanding
from each Bank and, if no Term Loans are then outstanding, in proportion to the
Ratable Share of each Bank.
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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 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 Period) of such Interest Period. Interest on the
principal amount of the Term Loan or other monetary Obligation shall be due and
payable on demand after such principal amount or other monetary Obligation
becomes due and payable (whether on the stated maturity date, upon acceleration
or otherwise).
4.4 PREPAYMENTS.
4.4.1 VOLUNTARY PREPAYMENTS.
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 below or in Section 4.5 [Additional
Compensation in Certain Circumstances]):
(i) at any 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 Bank
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 Administrative Agent by 1:00
p.m., Pittsburgh time, at least one (1) Business Day 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; and
(z) the total principal amount of such prepayment, which shall
not be less than $10,000,000 and in increments of $1,000,000 above
$10,000,000.
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. All Term Loan prepayments permitted by this
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Section 4.4.1 shall be applied to the unpaid principal of the Term Loans. Except
as provided in Section 3.4.3 [Administrative Agent's and Bank's Rights], if the
Borrower prepays the Term Loan 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 prepayment hereunder shall be
subject to the Borrower's Obligation to indemnify the Banks under Section 4.5.2
[Indemnity].
4.4.2 REPLACEMENT OF A BANK.
In the event any Bank (i) gives notice under Section 3.4
[Euro-Rate Unascertainable, etc.] or Section 4.5.1 [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 Administrative Agent, which shall not be unreasonably
withheld (except that during any period when an Event of Default exists and is
continuing, the Administrative Agent may withhold such consent in its sole
discretion), to prepay the Term Loans of such Bank in whole, together with all
interest accrued thereon, and terminate such Bank's Commitment within ninety
(90) days after (y) receipt of such Bank's notice under Section 3.4 [Euro-Rate
Unascertainable, etc.] or 4.5.1 [Increased Costs, etc.], or (z) the date such
Bank became subject to the control of an Official Body, as applicable; PROVIDED
that the Borrower shall also pay to such Bank at the time of such prepayment any
amounts required under Section 4.5 [Additional Compensation in Certain
Circumstances] (except that the Borrower shall not be required to indemnify such
Lender for liabilities, losses or expenses under Section 4.5.2(i) sustained by
such Bank as a consequence of the prepayment of the Loans of such Bank 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 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 Bank shall be provided by one or more of the remaining
Banks or a replacement bank acceptable to the Administrative Agent.
Notwithstanding the foregoing, the Administrative Agent may only be replaced
subject to the requirements of Section 9.14 [Successor Agents]
4.4.3 CHANGE OF LENDING OFFICE.
Each Bank 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 4.5.1 [Increased Costs, etc.] with respect to such Bank,
it will if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Bank) to designate another lending office for any
Term Loans affected by such event, PROVIDED that such designation is made on
such terms that such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, in such Bank'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 Bank provided in this Agreement.
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4.5 ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
4.5.1 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:
(i) subjects any Bank 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 Bank),
(ii) 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 Bank, or
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or contingent) of, or
letters of credit, other credits or commitments to extend credit extended by,
any Bank, or (B) otherwise applicable to the obligations of any Bank under this
Agreement,
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
Bank 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 Bank's
capital, taking into consideration such Bank's customary policies with respect
to capital adequacy) by an amount which such Bank in its sole discretion deems
to be material, such Bank shall from time to time notify the Borrower and the
Administrative Agent of the amount determined in good faith (using any averaging
and attribution methods employed in good faith) by such Bank to be necessary to
compensate such Bank 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 Bank ten (10) Business Days after such notice is given.
4.5.2 INDEMNITY.
In addition to the compensation required by Section 4.5.1
[Increased Costs, etc.], the Borrower shall indemnify each Bank 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 Bank to fund or maintain
Term Loans subject to a Euro-Rate Option) which such Bank sustains or incurs as
a consequence of any
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(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 Requests
under Section 2.5 [Request to Select Interest Rate Options] or Section 3.2
[Interest Periods] or notice relating to prepayments under Section 4.4
[Prepayments], or
(iii) default by the Borrower in the performance or
observance of any covenant or condition contained in this Agreement or any other
Loan Document, including any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal of or interest on the Term Loans or any
other amount due hereunder.
If any Bank 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 Bank (which determination may include such assumptions,
allocations of costs and expenses and averaging or attribution methods as such
Bank shall deem reasonable) to be necessary to indemnify such Bank 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 Bank
ten (10) Business Days after such notice is given.
4.6 NOTES.
Upon the request of any Bank, the Term Loans made by such Bank may
be evidenced by a Term Note in the form of EXHIBIT 1.1(T).
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 Banks and all income
and franchise taxes of the United States applicable to the Banks (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 Administrative 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.
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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 BANKS.
The Borrower shall indemnify the Banks 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 Bank and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be made
within 30 days from the date such Bank 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 Administrative Agent for the
benefit of the Banks 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 Bank, 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 through 4.7.4 shall survive the payment in full of
principal and interest under any promissory note made by Borrower to any Bank
under the Credit 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, the relevant Bank (to the extent such Bank 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 Bank 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 Bank is attributable to the Borrower, then
such Bank shall reimburse the Borrower for such amount as such Bank 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 Bank nor any Agent shall be obliged to disclose information
regarding its tax affairs or
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computations to Borrower in connection with this Section 4.7.6 or any other
provision of Section 4.7.
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agents and each of the
Banks 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 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, 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
Administrative Agent for the benefit of the Banks 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
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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.
(a) 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.
(b) To the knowledge of the Borrower on the Closing Date,
based on representations made to it by or on behalf of the ACC Group in the
Acquisition Documents, each member of the ACC Group 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.
5.1.4 VALIDITY AND BINDING EFFECT.
(a) 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. On the Closing Date the Acquisition Transactions shall
be consummated in accordance with the terms of the Acquisition Documents. 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 Administrative Agent.
(b) To the knowledge of the Borrower on the Closing Date,
based on representations made to it by or on behalf of the ACC Group in the
Acquisition Documents, each of the Acquisition Documents has been duly and
validly executed and delivered by each member of the ACC Group party thereto. To
the knowledge of the Borrower on the Closing Date, based
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on representations made to it by or on behalf of the ACC Group in the
Acquisition Documents, each Acquisition Document constitutes the legal, valid
and binding obligation of each member of the ACC Group party thereto,
enforceable against each such member of the ACC Group 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.
5.1.5 NO CONFLICT.
(a) Neither the execution and delivery of this Agreement or
the other Loan Documents by any Loan Party or the Acquisition Documents by the
Borrower or any Subsidiary of the Borrower party thereto, 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 in the case of
the Acquisition Documents, of the Borrower or any Subsidiary of the Borrower
party thereto or (ii) any Law or any material agreement or instrument or order,
writ, judgment, injunction or decree to which the Borrower or any Subsidiary of
the Borrower party to the Acquisition Documents, or 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 the Borrower or any Subsidiary
of the Borrower party to the Acquisition Documents or of any Loan Party or any
Subsidiary of any Loan Party (other than Liens granted under the Loan
Documents).
(b) To the knowledge of the Borrower on the Closing Date,
based on representations made to it by or on behalf of the ACC Group in the
Acquisition Documents, neither the execution and delivery of the Acquisition
Documents by any member of the ACC Group, nor the consummation of the
transactions therein contemplated or compliance with the terms and provisions
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 such Person or (ii) any Law or any
material agreement or instrument or order, writ, judgment, injunction or decree
to which any such Person 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 such Person.
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
- 39 -
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) ACC HISTORICAL STATEMENTS. The Borrower has
delivered to the Administrative Agent copies of the audited consolidated
year-end balance sheet for ACC as of the end of the fiscal years ended December
31, 1996 and December 31, 1997 and copies of the audited consolidated statements
of income, of equity investment and of cash flow for each of the three years in
the period ended December 31, 1997 (collectively, the "ACC Annual Statements").
To the knowledge of the Borrower based on representations made to it by or on
behalf of the ACC Group in the Acquisition Documents, the ACC Annual Statements
were compiled from the books and records maintained by ACC's management, are
correct and complete and fairly represent the consolidated financial condition
of ACC 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. To the
knowledge of the Borrower based on representations made to it by or on behalf of
the ACC Group in the Acquisition Documents, ACC has no liabilities, contingent
or otherwise, or forward or long-term commitments that are not disclosed in the
ACC Annual Statements or in the notes thereto, and there are no unrealized or
anticipated losses from any commitments of ACC which could reasonably be
expected to result in a Material Adverse Change. Since December 31, 1997, no
Material Adverse Change has occurred.
(iii) FINANCIAL PROJECTIONS. The Borrower has delivered
to the Agents financial projections of the Borrower and its Subsidiaries for the
period January 1, 1998 through and including December 31, 2002 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 ACC Annual Statements, the historical performance of Arch of
Wyoming LLC, 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 Acquisition Transactions and of the
transactions contemplated hereby as of the Closing Date.
5.1.8 USE OF PROCEEDS; MARGIN STOCK.
5.1.8.1 GENERAL.
The Loan Parties shall use the proceeds of the Loans
in accordance with Sections 2.4 and 7.1.9.
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5.1.8.2 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 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 any certificate, statement, agreement or other
documents furnished to the Administrative Agent or any Bank in connection
herewith or therewith, contains with respect to the Borrower and its
Subsidiaries, and to the knowledge of the Borrower with respect to the ACC Group
on the Closing Date, based on representations made to it by or on behalf of the
ACC Group in the Acquisition Documents, 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 Administrative Agent and the
Banks 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.
- 41 -
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 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. All material consents, approvals, exemptions, orders or authorization
of, or registration or filing with, any Official Body or any other Person as
required by any Law or any agreement in connection with the execution, delivery
and carrying out of the Acquisition Transactions in accordance with the
Acquisition Documents 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.
No event has occurred and is continuing and no condition
exists or will exist after giving effect to the borrowings or other extensions
of credit to be made on the Closing Date under or pursuant to the Loan Documents
which constitutes an Event of Default or Potential Default. None of the Loan
Parties or any 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 clauses (ii) or
(iii) of 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
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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 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
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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.
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.
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. 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 court of governmental authority made pursuant to Environmental Laws except
for noncompliance with respect thereto which could not reasonably be expected to
result in a Material Adverse Change. There are no threatened or pending
Environmental Claims against any Loan Party or any Subsidiary of any Loan Party
which could reasonably be expected to result in a Material Adverse Change.
Neither any Loan Party nor any Subsidiary of any Loan Party has received any
notice from any governmental or regulatory authority regarding actual or
contingent liability in connection with any release or threatened release of any
Hazardous Substance into the environment which actual or contingent liability
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 all other
Indebtedness of such Loan Party except Indebtedness of such Loan Party to the
extent secured by Permitted Liens. There is no Lien upon or with respect to any
of the properties or income of any Loan Party or Subsidiary of any Loan Party
which secures indebtedness or other obligations of any Person except for
Permitted Liens.
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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. On the Closing Date, the Borrower, in
accordance with the Purchase Agreement and the Contribution Agreement, shall
have received as a contribution to its capital such assets as are necessary for
the operation of the Business, including, without limitation, all material
assets set forth in the ACC Balance Sheet (other than assets permitted to
otherwise be sold or transferred by ACC in accordance with the Purchase
Agreement or Contribution Agreement prior to the Closing Date and other than
those assets which, in accordance with the Purchase Agreement or Contribution
Agreement, are not to be transferred by ACC to the Borrower).
5.1.21 SECURITY INTERESTS.
The Liens and security interests granted to the Administrative
Agent for the benefit of the Banks 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.
Upon the filing of financing statements relating to said security interests in
each office and, in each jurisdiction where required in order to perfect the
security interests described above, taking possession of any certificates or
instruments evidencing the Collateral, all such action as is necessary or
advisable to establish such rights of the Administrative Agent will have been
taken, and there will be, upon execution and delivery of the Collateral
Documents, such filings and such taking of possession, no necessity for any
further action in order to preserve, protect and continue such rights, except
the filing of continuation statements with respect to such financing statements
within six 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 STATUS OF THE PLEDGED COLLATERAL.
All the Subsidiary Shares, Partnership Interests or LLC
Interests included in the Collateral to be pledged pursuant to the Pledge
Agreement (Subsidiary Equity Interests) are or will be upon issuance validly
issued and nonassessable and owned beneficially and of record by the pledgor
free and clear of any Lien or restriction on transfer, except as otherwise
provided by the Pledge Agreement (Subsidiary Equity Interests) and except as the
right of the Banks to dispose of the Subsidiary Shares, Partnership Interests or
LLC Interests may be limited by the Securities Act of 1933, as amended, and the
regulations promulgated by the SEC thereunder and by applicable state securities
laws and the Canyon Fuel LLC Agreement. There are no shareholder, partnership,
limited liability company or other agreements or understandings with respect to
the Subsidiary Shares, Partnership Interests or LLC Interests included in the
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Collateral except for the partnership agreements and limited liability company
agreements described on SCHEDULE 5.1.22. The Loan Parties have delivered true
and correct copies of such partnership agreements and limited liability company
agreements to the Administrative Agent.
5.1.23 BLACK LUNG.
As of the Closing Date, to the knowledge of the Borrower on
the Closing Date, based on representations made to it by or on behalf of the ACC
Group in the Acquisition Documents, the ACC Annual Statements contain reasonably
adequate reserves in accordance with GAAP for the black lung liability of ACC.
5.1.24 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 will not alter
the rights of Canyon Fuel under the Coastal Agreement.
5.2 CONTINUATION OF REPRESENTATIONS.
Except as to those representations and warranties limited by their
terms to the Closing Date, the Borrower makes the representations and warranties
in this Section 5 on the date hereof, on the Closing Date and on the Syndication
Date as provided in and subject to Section 6.2.
6. CONDITIONS OF LENDING
The obligation of each Bank 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 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 each such representation
and warranty to be made after giving effect to the consummation of the
Acquisition Transactions and the making of the Distribution) 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
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referred to therein), and each of the Loan Parties shall have performed and
complied with all covenants and conditions hereof and thereof, no Event of
Default or Potential Default shall have occurred and be continuing or shall
exist; and there shall be delivered to the Administrative Agent for the benefit
of each Bank a certificate of the Borrower dated the Closing Date and signed by
the Chief Executive Officer, President, Chief Financial Officer, other
authorized officer or Managing Member of the Borrower to each such effect.
6.1.2 SECRETARY'S CERTIFICATE.
There shall be delivered to the Administrative Agent for the
benefit of each Bank a certificate dated the Closing Date and signed by the
Secretary or an Assistant Secretary of each of the Loan Parties, certifying as
appropriate as to:
(i) all action taken by each Loan Party in connection
with this Agreement and the other Loan Documents;
(ii) the names of the officer or officers authorized
to sign this Agreement and the other Loan Documents and the true signatures of
such officer or officers and specifying the Authorized Officers permitted to act
on behalf of each Loan Party for purposes of this Agreement and the true
signatures of such officers, on which the Administrative Agent and each Bank 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.
6.1.3 DELIVERY OF LOAN DOCUMENTS; FILING RECEIPTS.
This Agreement, the Guaranty Agreement, the Collateral Sharing
Agreement, the Collateral Documents and the other Loan Documents shall have been
duly executed and delivered to the Administrative Agent for the benefit of the
Banks, together with all appropriate financing statements and appropriate stock
powers and certificates evidencing the Subsidiary Shares, the Partnership
Interests and the LLC Interests, and all other instruments and Collateral
required to be delivered to the Administrative Agent for the benefit of the
Banks under the Collateral Documents. The Administrative Agent shall have
received 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 Banks on the Collateral or other satisfactory evidence
of such recordation and filing.
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6.1.4 OPINION OF COUNSEL.
There shall be delivered to the Administrative Agent for the
benefit of each Bank 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 Administrative Agent), dated
the Closing Date and in form and substance satisfactory to the Administrative
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 Administrative Agent may reasonably
request.
There shall also be delivered to the Administrative Agent a copy of the opinion
of ▇▇▇▇ ▇. ▇▇▇▇▇, Associate Counsel to ARCO, in connection with the Acquisition
Transactions.
6.1.5 LEGAL DETAILS.
All legal details and proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents and by
the Acquisition Documents shall be in form and substance satisfactory to the
Administrative Agent and counsel for the Administrative Agent, and the
Administrative Agent shall have received all such other counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the Administrative
Agent and said counsel, as the Administrative Agent or said counsel may
reasonably request.
6.1.6 PAYMENT OF FEES.
The Borrower shall have paid or caused to be paid to the
Arrangers all fees required to be paid by the Borrower to the Arrangers, and all
other commitment and other fees accrued through the Closing Date and the costs
and expenses for which the Arrangers and the Banks are entitled to be
reimbursed.
6.1.7 CONSENTS.
All material consents required to effectuate the transactions
contemplated by the Loan Documents and by the Acquisition Documents shall have
been obtained.
6.1.8 OFFICER'S CERTIFICATE REGARDING NO MATERIAL ADVERSE
CHANGE.
Since December 31, 1997, to the Borrower's knowledge, no event
shall have occurred with respect to ACC which could reasonably be expected to
result in a Material Adverse Change; since December 31, 1997, there shall have
been no material change in the management of the Borrower; and there shall have
been delivered to the Administrative Agent for the benefit of each Bank a
certificate dated the Closing Date, in form and substance satisfactory to the
Agents, and signed by the President, other executive financial officer or
Managing Member of the Borrower to each such effect and further certifying that
the Borrower
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and its Subsidiaries on a consolidated basis are Solvent, the accuracy of all
representations and warranties by the Loan Parties under the Loan Documents, the
compliance with all covenants under the Loan Documents and the absence of any
Event of Default or Potential Default, with all certifications after giving
effect to the Acquisition Transactions and the making of the Distribution.
6.1.9 NO VIOLATION OF LAWS.
The making of the Loans, the making of the Distribution and
the consummation of the Acquisition Transactions and of the transactions
contemplated by the Acquisition Documents and the Contribution Agreement shall
not contravene any Law applicable to any Loan Party or any of the Banks.
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, the other Loan Documents, the
Acquisition Transactions, the Acquisition Documents and the Contribution
Agreement or the consummation of the transactions contemplated hereby or thereby
or which, in the Administrative Agent's sole discretion, would make it
inadvisable to consummate the transactions contemplated by this Agreement or any
of the other Loan Documents or which in the good faith judgment of the Agents
could adversely affect the syndication of the Loans.
6.1.11 ACQUISITION.
Any material change to the Contribution Agreement or the
Purchase Agreement, and any changes to the forms of the Tax Sharing Agreement or
the LLC Agreements delivered to the Arrangers at or about the time of execution
of the Purchase Agreement shall be reasonably satisfactory to the Arrangers. The
amount of and the terms of payment of the Distribution shall be not greater than
$700,000,000. All conditions to closing under the Acquisition Documents shall
have been satisfied or waived to the satisfaction of the Agents. The Acquisition
Transactions shall have been consummated in accordance with the terms of the
Acquisition Documents, and an Authorized Officer of the Borrower shall certify
the foregoing to the Administrative Agent for the benefit of each Bank.
6.1.12 BORROWER CAPITAL AND FINANCING.
Contributions to the equity of the Borrower shall have been
consummated on terms and conditions and in the amounts required by the
Acquisition Documents.
6.1.13 INSURANCE.
The Borrower shall have delivered to the Agents evidence of
the insurance required under the Loan Documents.
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6.1.14 REPORT OF INDEPENDENT ENGINEER.
The report of ▇▇▇▇ International, independent engineers, shall
have been provided to the Agents with respect to the coal reserves, coal supply
contracts, mining conditions and related matters for the properties to be
acquired by or contributed to Borrower as part of the Acquisition Transactions,
and such report shall be satisfactory in form, substance and scope to the
Agents.
6.1.15 CREDIT FACILITY FOR THE PARENT.
All conditions to closing shall have been satisfied under the
Arch Credit Facility.
6.1.16 SATISFACTORY ENVIRONMENTAL REVIEW.
The Loan Parties shall cause to be performed and completed an
environmental audit with respect to the owned and leased real property of the
Loan Parties (collectively, the "Reviewed Property") by consultants satisfactory
to the Agents and shall provide all reports and results of such audit in writing
to the Agents. Such reports shall meet the Agents' minimum requirements for
phase I environmental assessments and any other requirements of the Agents. The
environmental condition of the Loan Parties' and their Subsidiaries' assets, as
substantiated by such audit, shall be satisfactory to the Agents in all
respects. On the Closing Date the appropriate officers of the applicable Loan
Parties shall have delivered to the Agents in form and substance satisfactory to
the Agents a certificate to the effect that the Loan Parties have made known to
the Agents all information known to them and their Subsidiaries concerning
Environmental Conditions and Environmental Complaints and the Loan Parties' and
their Subsidiaries' compliance with the Environmental Laws relating to any of
the Reviewed Property and any other site for which any Loan Party or Subsidiary
of a Loan Party has received notice that it is potentially responsible for
Environmental Conditions.
6.1.17 NON-OCCURRENCE OF CERTAIN EVENTS.
No disruption or change in the financial, banking or capital
markets shall have occurred or shall be pending which, in the good faith
judgment of the Agents, could adversely affect the syndication of the Loans.
6.1.18 DELTA HOUSING GUARANTY.
An original, executed counterpart of the Delta Housing
Guaranty shall have been delivered to the Administrative Agent.
6.2 SYNDICATION.
6.2.1 SYNDICATION DATE REPRESENTATIONS AND WARRANTIES.
(a) On the Syndication Date, the representations
and warranties of the Borrower contained in Section 5 and in the other Loan
Documents shall be true with the
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same effect as though such representations and warranties had been made on such
date (except representations and warranties which expressly relate solely to an
earlier date or time, which representations and warranties shall be true and
correct on and as of the specific dates or times referred to therein) and the
Borrower shall have performed and complied with all covenants and conditions
hereof, and no Event of Default or Potential Default shall have occurred and be
continuing or shall exist.
(b) On the Syndication Date, the Loan Parties shall
deliver to the Administrative Agent for the benefit of the Banks (i) an
Officer's Certificate dated as of the Syndication Date with respect to the
matters set forth in Sections 6.2.1(a), (ii) a Secretary's Certificate dated as
of the Syndication Date with respect to the matters set forth in Section 6.1.2
and stating that there have been no changes in the charter documents or bylaws
of the Borrower or any other Loan Party since the Closing Date, (iii) Term Notes
dated as of the Syndication Date which give effect to the syndication on the
Syndication Date of the Commitments of the Banks which originally executed the
Credit Agreement in exchange for the original Term Notes issued to such Banks,
(iv) written opinions of the counsel to the Loan Parties identified in Section
6.1.4 with respect to such matters as the Administrative Agent may request, and
(v) acknowledgments dated as of the Syndication Date to the Loan Documents in
form and substance satisfactory to the Administrative Agent.
6.2.2 SYNDICATION COOPERATION.
The Borrower will use all reasonable efforts to assist the
Agents in syndicating the credit facilities, including participating in meetings
with potential syndicate members. The Borrower agrees that it will cooperate
with the Agents in syndicating the Term Loans, including, without limitation, by
consenting to reasonable amendments to this Agreement (other than changes in
pricing) and the other Loan Documents which may be required by potential
syndicate members.
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
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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, 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.
7.1.4 MAINTENANCE OF PROPERTIES AND LEASES.
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.
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
Administrative Agent or any of the Banks 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
Banks
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may reasonably request, PROVIDED that each Bank shall provide the Borrower and
the Administrative Agent with reasonable notice prior to any visit or
inspection. In the event any Bank desires to conduct an audit of the Borrower or
any Subsidiary of the Borrower, such Bank shall make a reasonable effort to
conduct such audit contemporaneously with any audit to be performed by the
Administrative 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 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 and
renew all Environmental Permits necessary for their respective operations and
properties; and manage, use and handle all Hazardous 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.
The Borrower will use the proceeds of the Loans only to
finance the making of a portion of the Distribution. The Borrower's use of the
proceeds of the Loans shall not be for any purpose which contravenes any
applicable Law or any provision hereof.
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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 and all applicable Federal, state and local laws, rules and
regulations, including, without limitation, laws and regulations relating to
land reclamation, pollution control and mine safety.
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
licenses and permits required for the lawful operation of the Borrower and each
of its Subsidiaries 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
license, permit or Material Contract could not be reasonably expected to result
in a Material Adverse Change.
7.1.12 FURTHER ASSURANCES.
Each Loan Party shall, from time to time, at its expense,
faithfully preserve and protect the Administrative Agent's Lien on and Prior
Security Interest in the Collateral as a continuing first priority perfected
Lien and shall do such other acts and things as the Administrative Agent in its
sole discretion may deem necessary or advisable from time to time in order to
preserve, perfect and protect the Liens granted under the Loan Documents and to
exercise and enforce its rights and remedies thereunder with respect to the
Collateral.
7.1.13 INTEREST RATE PROTECTION.
The Borrower shall have entered into, within ninety (90) days
following the Closing Date, interest rate protection agreements with financial
institutions acceptable to the Administrative Agent (it being understood that
any Bank will be acceptable to the Administrative Agent) for a period of at
least three (3) years (y) priced with a strike price not to exceed two percent
(2%) over the rate of interest otherwise applicable to the Term Loans as of the
Closing Date, and (z) in an amount equal to at least 50% of the Term Loans
funded on the Closing Date (the "Interest Rate Protection Agreement").
Documentation for the Interest Rate Protection Agreement shall be in a standard
International Swap Dealer Association Agreement, shall provide for the method of
calculating the reimbursable amount of the provider's credit exposure in a
reasonable and customary manner, and shall not require that any collateral,
other than Collateral pledged to the Administrative Agent for the benefit of the
Banks, be provided as security for such agreement.
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:
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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;
(ii) unsecured Indebtedness of the Borrower payable
to the Parent;
(iii) other Indebtedness, not to exceed in the
aggregate at any time outstanding for the Borrower and its Subsidiaries,
$25,000,000; and
(iv) Indebtedness of any Subsidiary of the Borrower
payable to the Borrower.
7.2.2 LIENS.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, at any time create, incur, assume or suffer to exist any Lien
on any of its respective property or assets, tangible or intangible, now owned
or hereafter acquired, or agree or become liable to do so, except Permitted
Liens.
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 assets of another Person or of a business or division of another Person,
or (C) any additional ownership interest in 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];
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(iii) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Permitted
Acquisition; and
(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).
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 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 90 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 delivered to the Administrative 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 90 days after 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, and prior to consummating any such sale,
transfer or lease of assets, the Borrower shall have provided written notice
thereof to the Administrative 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; or
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(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.
Notwithstanding the provisions of this Section 7.2.4, it is expressly agreed
that the Borrower shall not, and shall not permit any of its Subsidiaries to,
sell, convey, assign, lease, abandon or otherwise transfer or dispose of,
voluntarily or involuntarily, any of the properties or assets, tangible or
intangible, or any of the limited liability interests of Thunder Basin Coal
Company LLC, a Delaware limited liability company, other than transactions
permitted by clauses (i), (iii) or (v) above.
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.
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 [Joinder of Guarantors] and whose equity interests are pledged to the
Administrative Agent for the benefit of the Banks in accordance with Section
10.18; 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
[Joinder of Guarantors] and shall cause each owner of the equity interests
thereof to pledge such equity interests to the Administrative Agent for the
benefit of the Banks 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 the Loan
Parties may be members or managers of, or hold limited liability company
interests in, other Loan Parties.
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 date of
consummation of the transactions contemplated by the Contribution Agreement and
any business substantially related thereto, and neither the Borrower nor any
Subsidiary of the Borrower shall permit any material change in such business.
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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, resulting in liability under ERISA or
otherwise violate ERISA.
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 or any
Subsidiary of the Borrower other than this Agreement, the restrictions
applicable to Canyon Fuel set forth in the Canyon Fuel LLC Agreement and the
restrictions applicable to the Borrower set forth in the Arch Western LLC
Agreement.
7.2.10 MAXIMUM LEVERAGE RATIO.
The Borrower shall not at any time permit the Leverage Ratio
to exceed the ratio set forth below for the periods specified below:
PERIOD RATIO
Closing Date through and
including December 31,
1998 5.50 TO 1.00
------------
January 1, 1999 through and
including December 31,
1999 5.25 TO 1.00
------------
January 1, 2000 through and
including December 31,
2000 4.50 TO 1.00
------------
January 1, 2001 through and
including December 31,
2001 3.50 TO 1.00
------------
January 1, 2002 and
thereafter 3.00 TO 1.00
------------
7.2.11 MINIMUM FIXED CHARGE COVERAGE RATIO.
The Borrower shall not permit the Fixed Charge Coverage Ratio
to be less than the ratio specified below for the periods specified below:
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PERIOD RATIO
Closing Date through and
including December 31,
1998 2.00 TO 1.00
------------
January 1, 1999 through and
including December 31,
1999 2.25 TO 1.00
------------
January 1, 2000 through and
including December 31,
2000 2.75 TO 1.00
------------
January 1, 2001 through and
including December 31,
2001 3.50 TO 1.00
------------
January 1, 2002 and
thereafter 4.50 TO 1.00
-------------
7.2.12 MINIMUM NET WORTH.
The Borrower shall not at any time permit Consolidated
Tangible Net Worth 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 to the Parent so long as any such loan is
evidenced by the Eligible Note Receivable which is pledged to the Administrative
Agent for the benefit of the Banks pursuant to the Note Pledge Agreement; and
(iv) the investment by the Borrower in its Subsidiaries.
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7.2.14 NO AMENDMENTS TO ACQUISITION DOCUMENTS.
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 Banks without the prior written
consent of the Agents.
7.2.15 LIMITATION ON CAPITAL EXPENDITURES.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, make any payments exceeding $150,000,000 in the aggregate in
any fiscal year on account of the purchase or lease of any assets which if
purchased would constitute fixed assets or which if leased would constitute a
capitalized lease.
7.3 REPORTING REQUIREMENTS.
The Borrower covenants and agrees that until payment in full of the
Loans and interest thereon, satisfaction of all of the Loan Parties' other
Obligations hereunder and under the other Loan Documents and termination of the
Commitments, the Borrower will furnish or cause to be furnished to the
Administrative Agent and each of the Banks:
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, 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.
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, 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 Administrative Agent. The
certificate or report of accountants shall be free of qualifications (other than
any consistency
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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.
7.3.3 CERTIFICATE OF THE BORROWER.
Concurrently with the financial statements of the Borrower
furnished to the Administrative Agent and to the Banks pursuant to Sections
7.3.1 [Quarterly Financial Statements] and 7.3.2 [Annual Financial Statements],
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 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 and (iii) 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 Parent's Debt Rating, notice of such change.
Borrower will deliver
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together with such notice a copy of any written notification which Borrower
received from the applicable rating agency regarding such change of 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 Administrative Agent or any Bank 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 Form
5310, or any successor or equivalent form to Form 5310, filed with the PBGC in
connection with the termination of any Plan.
7.3.8 OTHER INFORMATION.
Promptly following request therefor, such other information as
any Agent or Bank may reasonably request.
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 Loan
(including scheduled installments, mandatory prepayments or the payment due at
maturity) when such principal is due hereunder or (ii) any interest on any 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;
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8.1.2 BREACH OF WARRANTY.
(a) Any representation or warranty made by the Borrower in
Sections 5.1.3(b), 5.1.4(b), 5.1.5(b), or 5.1.7(i) or (ii) or, with respect to
the ACC Group, in Section 5.1.9 hereof, shall prove to have been false or
misleading as of the time it was made by the Borrower without giving effect to
the qualification in each such Section that the Borrower was making such
representation or warranty "to the knowledge of the Borrower", to an extent that
could reasonably be expected to result in a Material Adverse Change;
(b) Any other representation or warranty made at any time by
the Borrower herein or by any of the Loan Parties in any other Loan Document, or
in any certificate, other instrument or statement furnished pursuant to the
provisions hereof or thereof, shall prove to have been false or misleading in
any material respect as of the time it was made or furnished;
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, 7.3.2 or 7.3.3 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 to be applicable only in the event such
default can be remedied by corrective action of the Loan Parties as determined
by the Administrative Agent in its sole discretion);
8.1.5 DEFAULTS IN OTHER AGREEMENTS OR INDEBTEDNESS.
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 $10,000,000 in the aggregate, and such breach, default or
event of default consists of the failure to pay (beyond any period of grace
permitted with respect thereto, whether waived or not) any indebtedness when due
(whether at stated maturity, by acceleration or otherwise) or if such breach or
default permits or causes (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;
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8.1.6 JUDGMENTS OR ORDERS.
Any judgments or orders for the payment of money in excess of
$10,000,000 in the aggregate shall be entered against any Loan Party or any
Subsidiary of any Loan Party by a court having jurisdiction in the premises,
which judgment is not discharged, vacated, bonded or stayed pending appeal
within a period of thirty (30) days from the date of entry; PROVIDED, HOWEVER,
that any such judgment or order shall not be an Event of Default under this
Section 8.1.6 if and for so long as (i) the amount of such judgment or order in
excess of $10,000,000 is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and (ii) such
insurer, which shall be rated at least "A" by A.M. Best Company, has been
notified of, and has not disputed the claim made for payment of, the amount of
such judgment or order;
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 UNINSURED LOSSES; 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 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;
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8.1.11 EVENTS RELATING TO PLANS AND BENEFIT ARRANGEMENTS.
Any of the following occurs: (i) any Reportable Event, which
the Administrative Agent determines in good faith constitutes grounds for the
termination of any Plan by the PBGC or the appointment of a trustee to
administer or liquidate any Plan, shall have occurred and be continuing; (ii)
proceedings shall have been instituted or other action taken to terminate any
Plan, or a termination notice shall have been filed with respect to any Plan;
(iii) a trustee shall be appointed to administer or liquidate any Plan; (iv) the
PBGC shall give notice of its intent to institute proceedings to terminate any
Plan or Plans or to appoint a trustee to administer or liquidate any Plan; and,
in the case of the occurrence of (i), (ii), (iii) or (iv) above, the
Administrative Agent determines in good faith that the amount of the Borrower's
liability is likely to exceed 10% of its Consolidated Tangible Net Worth; (v)
the Borrower or any member of the ERISA Group shall fail to make any
contributions when due to a Plan or a Multiemployer Plan; (vi) the Borrower or
any other member of the ERISA Group shall make any amendment to a Plan with
respect to which security is required under Section 307 of ERISA; (vii) the
Borrower or any other member of the ERISA Group shall withdraw completely or
partially from a Multiemployer Plan; (viii) the Borrower or any other member of
the ERISA Group shall withdraw (or shall be deemed under Section 4062(e) of
ERISA to withdraw) from a Multiple Employer Plan; or (ix) any applicable Law is
adopted, changed or interpreted by any Official Body with respect to or
otherwise affecting one or more Plans, Multiemployer Plans or Benefit
Arrangements and, with respect to any of the events specified in (v), (vi),
(vii), (viii) or (ix), the Administrative Agent determines in good faith that
any such occurrence would be reasonably likely to materially and adversely
affect the total enterprise represented by the Borrower and the other members of
the ERISA Group;
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
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) other than Ashland Inc. 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 were
directors of the Parent on the first day of such period shall cease to
constitute a majority of the board of directors of the Parent;
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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 through
8.1.13 shall occur and be continuing, the Banks and the Administrative Agent
shall be under no further
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obligation to make Loans, and the Administrative Agent may, and upon the request
of the Required Banks shall, by written notice to the Borrower, take one or both
of the following actions: (i) terminate the Commitments and thereupon the
Commitments shall be terminated and of no further force and effect, and (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 Banks hereunder and thereunder to be forthwith due and payable,
and the same shall thereupon become and be immediately due and payable to the
Administrative Agent for the benefit of each Bank without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived; 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 Banks shall be under no further obligation to make Loans hereunder and the
unpaid principal amount of the Loans then outstanding and all interest accrued
thereon, any unpaid fees and all other Indebtedness of the Borrower to the Banks
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
8.2.3 SET-OFF.
If an Event of Default shall occur and be continuing, any Bank
to whom any Obligation is owed by any Loan Party hereunder or under any other
Loan Document or any participant of such Bank which has agreed in writing to be
bound by the provisions of Section 9.13 [Equalization of Banks] and any branch,
Subsidiary or Affiliate of such Bank or participant anywhere in the world shall
have the right, in addition to all other rights and remedies available to it,
without notice to such Loan Party, to set-off against and apply to the then
unpaid balance of all the Loans and all other Obligations of the Borrower and
the other Loan Parties hereunder or under any other Loan Document any debt owing
to, and any other funds held in any manner for the account of, the Borrower or
such other Loan Party by such Bank 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 Bank or participant or such branch, Subsidiary or Affiliate.
Such right shall exist whether or not any Bank or the Administrative Agent shall
have made any demand under this Agreement or any other Loan Document, whether or
not such debt owing to or funds held for the account of the 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 Bank or the Administrative Agent; and
8.2.4 SUITS, ACTIONS, PROCEEDINGS.
If an Event of Default shall occur and be continuing, and
whether or not the Administrative Agent shall have accelerated the maturity of
the Term Loans pursuant to any of the foregoing provisions of this Section 8.2,
the Agents or any Bank, if owed any amount with respect to the Term Loans, may
proceed to protect and enforce its rights by suit in equity, action at law
and/or other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Agreement or the other Loan Documents,
including as permitted by applicable Law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of any Agent or such Bank; and
8.2.5 APPLICATION OF PROCEEDS.
From and after the date on which the Administrative Agent
shall have taken any action pursuant to this Section 8.2 and until all
Obligations of the Loan Parties have been paid in full, any and all proceeds
received by the Administrative Agent from any sale or
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other disposition of the Collateral, or any part thereof, or the exercise of any
remedy by the Administrative Agent shall be applied as follows:
(i) first, to reimburse the Administrative Agent and
the Banks for out-of-pocket costs, expenses and disbursements, including
reasonable attorneys' and paralegals' fees and legal expenses, incurred by the
Administrative Agent or the Banks 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 Banks incurred under this Agreement or
any of the other Loan Documents, whether of principal, interest, fees, expenses
or otherwise, in such manner as the Administrative 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 Administrative 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 Administrative Agent may, and upon the request of the
Required Banks shall, exercise all post-default rights granted to the
Administrative Agent and the Banks under the Loan Documents or applicable Law.
8.2.7 NOTICE OF SALE.
Any notice required to be given by the Administrative Agent of
a sale, lease, or other disposition of the Collateral or any other intended
action by the Administrative Agent, if given ten (10) days prior to such
proposed action, shall constitute commercially reasonable and fair notice
thereof to the Borrower.
9. THE AGENTS
9.1 APPOINTMENT.
Each Bank hereby designates, appoints and authorizes: (i) PNC Bank
to act as Administrative Agent for such Bank under this Agreement and the other
Loan Documents for such Bank under this Agreement and to execute and deliver or
accept on behalf of each of the Banks the other Loan Documents, and (ii)
authorizes each of PNC Bank and ▇▇▇▇▇▇ to act as Agent for such Bank under this
Agreement. Each Bank hereby irrevocably authorizes the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and any other instruments and agreements referred to
herein, and to exercise such powers and to perform such duties hereunder as are
specifically delegated to or
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required of the Agents, the Administrative Agent or any of them by the terms
hereof, together with such powers as are reasonably incidental thereto. PNC Bank
agrees to act as the Administrative Agent on behalf of the Banks to the extent
provided in this Agreement, and each of PNC Bank and ▇▇▇▇▇▇ agrees to act as
Agent on behalf of the Banks to the extent provided in this Agreement.
9.2 DELEGATION OF DUTIES.
The Agents and the Administrative Agent may perform any of their
respective duties hereunder by or through agents or employees (PROVIDED such
delegation does not constitute a relinquishment of their respective duties as
Agents or the Administrative Agent, as the case may be) and, subject to Sections
9.5 [Reimbursement and Indemnification of Agents 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. It is acknowledged and agreed that NationsBank,
N.A. has received the title of Documentation Agent under this Agreement,
however, such designation is solely to give NationsBank, N.A. such title and
NationsBank, N.A. has no duties, responsibilities, functions, obligations or
liabilities implied or otherwise under the Loan Documents solely as a result of
being so designated as Documentation Agent.
9.3 NATURE OF DUTIES; INDEPENDENT CREDIT INVESTIGATION.
Neither the Agents nor the Administrative Agent shall 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 Administrative Agent and of the Agents shall be mechanical and
administrative in nature; neither the Administrative Agent nor the Agents shall
have by reason of this Agreement a fiduciary or trust relationship in respect of
any Bank; and nothing in this Agreement, expressed or implied, is intended to or
shall be so construed as to impose upon the Administrative Agent or any 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
"Agents" in this Agreement with reference to the Agents or Administrative Agent,
as the case may be, 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 Bank expressly acknowledges (i) that neither the
Administrative Agent nor any Agent has made any representations or warranties to
it and that no act by the Administrative Agent or any 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 Administrative Agent or any
Agent to any Bank; (ii) that it has made and will continue to make, without
reliance upon the Administrative Agent or any 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 Loans hereunder; and (iii)
except as expressly provided herein, that neither the Administrative Agent
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nor any Agent shall have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other information with
respect thereto, whether coming into its possession before the making of any
Loan, the issuance of any Letter of Credit or at any time or times thereafter.
9.4 ACTIONS IN DISCRETION OF AGENTS; INSTRUCTIONS FROM THE BANKS.
The Administrative Agent and each Agent agrees, upon the written
request of the Required Banks, to take or refrain from taking any action of the
type specified as being within the Administrative Agent's or such Agent's
rights, powers or discretion herein, PROVIDED that neither the Administrative
Agent nor any Agent shall be required to take any action which exposes the
Administrative Agent or any 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 Banks, the Administrative Agent and each Agent shall
have authority, in their sole discretion, to take or not to take any such
action, unless this Agreement specifically requires the consent of the Required
Banks or all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section 9.6
[Exculpatory Provisions, etc.]. Subject to the provisions of Section 9.6, no
Bank shall have any right of action whatsoever against the Administrative Agent
or any Agent as a result of the Administrative Agent or any Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Banks, or in the absence of such instructions, in the absolute
discretion of the Administrative Agent or the Agents, as the case may be.
9.5 REIMBURSEMENT AND INDEMNIFICATION OF AGENTS BY THE BORROWER.
The Borrower unconditionally agrees to pay or reimburse the
Administrative Agent and each Agent and hold the Administrative Agent and each
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
Administrative Agent or any 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, and (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 (b) all liabilities,
obligations, losses, damages,
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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 Administrative Agent or any Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Administrative Agent or any 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
Administrative Agent's or any 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 Administrative Agent, any Agent nor any of their
respective directors, officers, employees, agents, attorneys or Affiliates shall
(a) be liable to any Bank 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 Banks 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 Banks 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 Bank,
the Administrative Agent or any Agent or any of their respective Subsidiaries
against the Administrative Agent, any Agent, any Bank 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 Loans, and the Borrower (for itself and on behalf of each
of its Subsidiaries), the Administrative Agent, each Agent and each Bank 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 Bank agrees that, except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Administrative Agent or any Agent hereunder or given to the
Administrative Agent or any Agent for the account of or with copies for the
Banks, the Administrative Agent, each Agent and each of their respective
directors, officers, employees, agents, attorneys or Affiliates shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Loan Parties which may come
into the possession of the Administrative Agent, any Agent or any of their
directors, officers, employees, agents, attorneys or Affiliates.
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9.7 REIMBURSEMENT AND INDEMNIFICATION OF AGENTS BY THE BANKS.
Each Bank agrees to reimburse and indemnify the Administrative Agent
and each 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 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 Administrative Agent, the Agents, or any
of them in their respective capacities as such, in any way relating to or
arising out of this Agreement or any other Loan Documents or any action taken or
omitted by the Administrative Agent or any Agent hereunder or thereunder,
PROVIDED that no Bank 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 Administrative
Agent's or any Agent's gross negligence or willful misconduct, as the case may
be, or (b) if such Bank was not given notice of the subject claim and the
opportunity to participate in the defense thereof, at its expense (except that
such Bank shall remain liable to the extent such failure to give notice does not
result in a loss to the Bank), or (c) if the same results from a compromise and
settlement agreement entered into without the consent of such Bank, which shall
not be unreasonably withheld. In addition, each Bank agrees promptly upon demand
to reimburse the Administrative Agent and each 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 for all amounts due and payable by
the Borrower to the Administrative Agent or the Agents, as the case may be in
connection with the periodic audit of the Loan Parties' books, records and
business properties by the Administrative Agent or the Agents.
9.8 RELIANCE BY AGENTS.
The Administrative Agent and each 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 Administrative Agent or any Agent. The Administrative Agent and each 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 Banks 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.
Neither the Administrative Agent nor any Agent shall 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 Bank 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."
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9.10 NOTICES.
Each of the Administrative Agent and each Agent agrees to promptly
send to each Bank a copy of all notices received from the Borrower pursuant to
the provisions of this Agreement or the other Loan Documents promptly upon
receipt thereof. The Administrative Agent shall promptly notify the Borrower and
the other Banks of each change in the Base Rate and the effective date thereof.
9.11 BANKS 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 Bank hereunder or under any of the
other Loan Documents, the Administrative Agent and each Agent shall have the
same rights and powers hereunder as any other Bank and may exercise the same as
though it were not the Administrative Agent or an Agent, as the case may be, and
the term "Banks" shall, unless the context otherwise indicates, include the
Administrative Agent and each Agent in its individual capacity. PNC Bank and its
Affiliates, ▇▇▇▇▇▇ and its Affiliates, each other Agent and its Affiliates and
each of the Banks 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 Administrative Agent or any Agent, as though it
were not acting as Administrative Agent or Agent, as the case may be, hereunder
and in the case of each Bank, as though such Bank were not a Bank hereunder. The
Banks acknowledge that, pursuant to such activities, the Administrative Agent or
its Affiliates or any 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 neither the Administrative Agent nor any Agent shall 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 Banks.
9.12 HOLDERS OF NOTES.
The Administrative Agent and each Agent may deem and treat any payee
of any 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 Administrative Agent and the Agents. Any request, authority or consent of
any Person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
9.13 EQUALIZATION OF BANKS.
The Banks and the holders of any participations in any Commitments
or Loans or other rights or obligations of a Bank hereunder agree among
themselves that, with respect to all amounts received by any Bank or any such
holder for application on any Obligation hereunder or
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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 Banks and such holders
in proportion to their interests in payments on the Loans, except as otherwise
provided in Sections 3.4.3 [Administrative Agent's and Bank's Rights], 4.4.2
[Replacement of a Bank] or 4.5 [Additional Compensation in Certain
Circumstances]. The Banks or any such holder receiving any such amount shall
purchase for cash from each of the other Banks an interest in such Bank's Loans
in such amount as shall result in a ratable participation by the Banks and each
such holder in the aggregate unpaid amount of the Loans, PROVIDED that if all or
any portion of such excess amount is thereafter recovered from the Bank 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 Bank
or the holder making such purchase.
9.14 SUCCESSOR AGENTS.
Any Agent or the Administrative Agent (i) may resign as Agent or
Administrative Agent, as the case may be or (ii) shall resign if such
resignation is requested by the Required Banks (if the Agent or Administrative
Agent is a Bank, such Agent's or Administrative Agent's Loans and Commitment
shall be considered in determining whether the Required Banks have requested
such resignation) or required by Section 4.4.2 [Replacement of a Bank], in
either case of (i) or (ii) by giving not less than thirty (30) days' prior
written notice to the Borrower. If any Agent or the Administrative Agent shall
resign under this Agreement, then either (a) the Required Banks shall appoint
from among the Banks a successor to such Agent or Administrative Agent, as the
case may be, for the Banks, 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 or Administrative Agent shall not be so appointed
and approved within the thirty (30) day period following an Agent's or the
Administrative Agent's notice, as the case may be, to the Banks of its
resignation, then the resigning Administrative Agent or resigning Agent, as the
case may be 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 Bank shall serve as Administrative Agent or Agent, as
the case may be, until such time as the Required Banks appoint and the Borrower
consents to the appointment of a successor to such resigning Administrative
Agent or Agent. Upon its appointment pursuant to either clause (a) or (b) above,
such successor Administrative Agent or Agent shall succeed to the rights, powers
and duties of the resigning Administrative Agent or Agent, as the case may be,
and the terms "Agent" and "Administrative Agent" shall mean such successor Agent
or Administrative Agent, as the case may be, effective upon its appointment, and
the former Administrative Agent's or Agent's rights, powers and duties as an
Agent or Administrative Agent shall be terminated without any other or further
act or deed on the part of such former Agent or Administrative Agent or any of
the parties to this Agreement. After the resignation of the Administrative Agent
or any Agent hereunder, the provisions of this Section 9 shall inure to the
benefit of such former Administrative Agent
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and each former Agent, and such former Administrative Agent and each 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 Administrative
Agent or an Agent under this Agreement.
9.15 ADMINISTRATIVE AGENT'S FEE.
The Borrower shall pay to the Administrative Agent a nonrefundable
fee (the "Administrative Agent's Fee") for the Administrative Agent's services
hereunder under the terms of a letter (the "Administrative Agent's Letter")
between the Borrower and the Administrative Agent, as amended from time to time.
9.16 AVAILABILITY OF FUNDS.
The Administrative Agent may assume that each Bank has made or will
make the proceeds of a Loan available to the Administrative Agent unless the
Administrative Agent shall have been notified by such Bank on or before the
later of (1) the close of Business on the Business Day preceding the Borrowing
Date with respect to such Loan or two (2) hours before the time on which the
Administrative Agent actually funds the proceeds of such Loan to the Borrower
(whether using its own funds pursuant to this Section 9.16 or using proceeds
deposited with the Administrative Agent by the Banks and whether such funding
occurs before or after the time on which Banks are required to deposit the
proceeds of such Loan with the Administrative Agent). The Administrative 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 Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such amount on demand from
such Bank (or, if such Bank 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 Administrative 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 Loan after the end of such three-day period.
9.17 CALCULATIONS.
In the absence of gross negligence or willful misconduct, the
Administrative Agent shall not be liable for any error in computing the amount
payable to any Bank whether in respect of the Loans, fees or any other amounts
due to the Banks under this Agreement. In the event an error in computing any
amount payable to any Bank is made, the Administrative Agent, the Borrower and
each affected Bank 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 BENEFICIARIES.
Except as expressly provided herein, the provisions of this Section
9 are solely for the benefit of the Administrative Agent, each Agent and the
Banks, and the Loan Parties shall not
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have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Administrative
Agent and each Agent shall act solely as the Administrative Agent or Agent, as
the case may be, of the Banks and do 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.
10. MISCELLANEOUS
10.1 MODIFICATIONS, AMENDMENTS OR WAIVERS.
With the written consent of the Required Banks, the Administrative
Agent, acting on behalf of all the Banks, 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 Banks 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 Banks and the Loan Parties; PROVIDED, that, without the written consent of
all the Banks, no such agreement, waiver or consent may be made which will:
10.1.1 INCREASE OF COMMITMENTS; EXTENSION OF EXPIRATION
DATE.
Increase the amount of the Term Loan Commitment of any Bank
hereunder or extend the Expiration Date;
10.1.2 EXTENSION OF PAYMENT; REDUCTION OF PRINCIPAL,
INTEREST OR FEES; MODIFICATION OF TERMS OF
PAYMENT.
Whether or not any Loans are outstanding, extend the time for
payment of principal or interest of any Loan or any fee payable to any Bank, or
reduce the principal amount of or the rate of interest borne by any Loan or
reduce the rate of any fee payable to any Bank;
10.1.3 RELEASE OF COLLATERAL OR GUARANTOR.
Release any Collateral or release any Guarantor from its
Obligations under the Guaranty Agreement or any other security for any of the
Loan Parties' Obligations, other than, prior to an Event of Default, upon the
request by the Borrower to the Administrative Agent, release from the Guaranty
Agreement of any Subsidiary which is no longer a Significant Subsidiary (which
request shall be accompanied by evidence satisfactory to the Administrative
Agent in its sole discretion that the Subsidiary which the Borrower is
requesting be so released from the Guaranty Agreement is no longer a Significant
Subsidiary), which release from the Guaranty Agreement of a non Significant
Subsidiary may be granted solely by the Administrative Agent without the
approval of any Bank; or
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10.1.4 MISCELLANEOUS
Amend Sections 4.2 [Pro Rata Treatment of Banks], 9.6
[Exculpatory Provisions, etc.] or 9.13 [Equalization of Banks] or this Section
10.1, alter any provision regarding the pro rata treatment of the Banks, change
the definition of Required Banks, or change any requirement providing for the
Banks, the Required Banks or all the Banks to authorize the taking of any action
hereunder; 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
Administrative Agent in its capacity shall be effective without the written
consent of the Administrative Agent.
10.2 NO IMPLIED WAIVERS; CUMULATIVE REMEDIES; WRITING REQUIRED.
No course of dealing and no delay or failure of the Administrative
Agent, any Agent or any Bank 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
Administrative Agent, each Agent and the Banks 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 Bank 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 BANKS BY THE BORROWER;
TAXES.
The Borrower agrees unconditionally upon demand to pay or reimburse
to each Bank (other than the Administrative Agent and the Agents, as to which
the Borrower's Obligations are set forth in Section 9.5 [Reimbursement and
Indemnification of Agents by the Borrower]) and to save such Bank 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 Bank (except with respect to (A) and (B) below), incurred by such Bank (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, and (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, 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 on, incurred by or asserted
against such Bank, in its
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capacity as such, in any way relating to or arising out of this Agreement or any
other Loan Documents or any action taken or omitted by such Bank 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 Bank'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. The Banks will attempt to minimize the fees and expenses of legal
counsel for the Banks which are subject to reimbursement by the Borrower
hereunder by considering the use of one law firm to represent the Banks, the
Administrative Agent, and the Agents 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 Administrative Agent, any Agent or any Bank to be payable in connection with
this Agreement or any other Loan Document, and the Borrower agrees
unconditionally to save the Administrative Agent, each Agent and the Banks
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 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 Loans shall be due on the Business Day preceding the
Expiration Date if the Expiration Date is not a Business Day. Whenever any
payment or action to be made or taken hereunder (other than payment of the
Loans) shall be stated to be due on a day which is not a Business Day, such
payment or action shall be made or taken on the next following Business Day
(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.
10.5 FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.
10.5.1 NOTIONAL FUNDING.
Each Bank 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 Bank) of such Bank to have made, maintained or funded any 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 4.5 [Additional
Compensation in Certain Circumstances] than it would have
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been in the absence of such change. Notional funding offices may be selected by
each Bank without regard to such Bank's actual methods of making, maintaining or
funding the Loans or any sources of funding actually used by or available to
such Bank.
10.5.2 ACTUAL FUNDING.
Each Bank shall have the right from time to time to make or
maintain any Loan by arranging for a branch, Subsidiary or Affiliate of such
Bank to make or maintain such Loan subject to the last sentence of this Section
10.5.2. If any Bank causes a branch, Subsidiary or Affiliate to make or maintain
any part of the Loans hereunder, all terms and conditions of this Agreement
shall, except where the context clearly requires otherwise, be applicable to
such part of the Loans to the same extent as if such Loans were made or
maintained by such Bank, but in no event shall any Bank's use of such a branch,
Subsidiary or Affiliate to make or maintain any part of the Loans hereunder
cause such Bank 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 Bank (including any expenses incurred or payable
pursuant to Section 4.5 [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 delivered; provided,
that notices to the Agents or to the Administrative Agent shall not be effective
until received. Any Bank giving any notice to the Borrower shall simultaneously
send a copy thereof to the Administrative Agent, and the Administrative Agent
shall promptly notify the other Banks 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.
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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 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
Loans and issuance of Letters of Credit and shall not be waived by the execution
and delivery of this Agreement, any investigation by the Administrative Agent,
any Agent or the Banks, the making of Loans or payment in full of the 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 so long
as the Borrower may borrow hereunder and until termination of the Commitments
and payment in full of the 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 Agents by the Borrower], 9.7 [Reimbursement and
Indemnification of Agents by the Banks] and 10.3 [Reimbursement and
Indemnification of Banks by the Borrower, etc.], shall survive payment in full
of the Loans and termination of the Commitments.
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 Banks, the Agents, the Administrative Agent, the Issuing Banks,
the Borrower and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights and Obligations hereunder
or any interest herein without the consent of all of the Banks.
10.11.2 ASSIGNMENTS AND PARTICIPATIONS BY BANKS.
This Section shall apply to any assignment or participation by
a Bank of its Loans or Commitments. Each Bank 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
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of the Borrower (which consent shall not be required during any period in which
an Event of Default exists) and the Administrative Agent with respect to any
assignee, such consents not to be unreasonably withheld, and PROVIDED that
assignments may not be made in amounts less than $5,000,000 unless such
assignment is an assignment of all of a Bank's Commitment or Term Loans. Each
Bank 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 Term Loan Commitment, upon receipt by the Administrative 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 Bank
hereunder, the Commitments in Section 2.1 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 Term Loan Commitment assumed by it and a new Term Note to the
assigning Bank in an amount equal to the Term Loan Commitment retained by it
hereunder. Any assigning Bank shall pay to the Administrative 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. 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 Bank in respect of
such participation to be those set forth in the agreement executed by such Bank
in favor of the participant relating thereto and not to include any voting
rights except with respect to changes of the type referenced in Sections 10.1.1,
10.1.2 and 10.1.3), all of such Bank'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 Bank 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 Administrative Agent the form of certificate described in
Section 10.17 relating to federal income tax withholding. Each Bank 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 Bank 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].
10.11.3 FOREIGN ASSIGNEES AND PARTICIPANTS.
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 Administrative Agent the form of certificate described in
Section 10.17 relating to federal income tax withholding. Each Bank 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 Bank 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].
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10.11.4 ASSIGNMENTS BY BANKS TO FEDERAL RESERVE BANKS.
Notwithstanding any other provision in this Agreement, any
Bank may at any time pledge or grant a security interest in all or any portion
of its rights under this Agreement, its Notes (if any) and the other Loan
Documents to any Federal Reserve Bank in accordance with Regulation A of the FRB
or U.S. Treasury Regulation 31 CFR Section 203.14 without notice to or consent
of the Borrower and the Administrative Agent. No such pledge or grant of a
security interest shall release the transferor Bank of its obligations hereunder
or under any other Loan Document.
10.12 CONFIDENTIALITY.
10.12.1 GENERAL.
The Agents, the Administrative Agent and the Banks 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 Agents, the Administrative Agent and the Banks
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 administration and enforcement of this Agreement, subject to
agreement of such Persons to maintain the confidentiality, (ii) to assignees and
participants as contemplated by Section 10.11 [Successors and Assigns], (iii) to
the extent requested by any bank regulatory authority, insurance company
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, (iv) 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,
(v) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access to
information about the Bank's investment portfolio or (vi) if the Borrower shall
have consented to such disclosure.
10.12.2 SHARING INFORMATION WITH AFFILIATES OF THE BANKS.
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 Bank or by one or more Subsidiaries or Affiliates of such
Bank and the Borrower (on its own behalf and on behalf of its Subsidiaries)
hereby authorizes each Bank to share any information delivered to such Bank by
the Borrower and its Subsidiaries pursuant to this Agreement, or in connection
with the decision of such Bank to enter into this Agreement, to any such
Subsidiary or Affiliate of such Bank, it being understood that any such
Subsidiary or Affiliate of any Bank receiving such information shall be bound by
the provisions of Section 10.12.1 above as if it were a Bank
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hereunder. Such authorization shall survive the repayment of the 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 BANK'S CONSENT.
Whenever the Administrative Agent's, any Agent's or any Bank'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
Administrative Agent, each Agent and each Bank 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 AND 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 AGENTS, THE ADMINISTRATIVE AGENT AND
THE BANKS 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.
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10.17 TAX WITHHOLDING CLAUSE.
Each Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a state thereof
agrees that it will deliver to each of the Borrower and the Administrative Agent
two (2) duly completed copies of the following: (i) Internal Revenue Service
Form W-9, 4224 or 1001, or other applicable form prescribed by the Internal
Revenue Service, certifying that such Bank, assignee or participant is entitled
to receive payments under this Agreement and the other Loan Documents without
deduction or withholding of any United States federal income taxes, or is
subject to such tax at a reduced rate under an applicable tax treaty, or (ii)
Internal Revenue Service Form W-8 or other applicable form or a certificate of
such Bank, assignee or participant indicating that no such exemption or reduced
rate is allowable with respect to such payments. Each Bank, assignee or
participant required to deliver to the Borrower and the Administrative Agent a
form or certificate pursuant to the preceding sentence shall deliver such form
or certificate as follows: (A) each Bank which is a party hereto on the Closing
Date shall deliver such form or 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 Bank; (B) each assignee or
participant shall deliver such form or certificate at least five (5) Business
Days before the effective date of such assignment or participation (unless the
Administrative Agent in its sole discretion shall permit such assignee or
participant to deliver such form or certificate less than five (5) Business Days
before such date in which case it shall be due on the date specified by the
Administrative Agent). Each Bank, assignee or participant which so delivers a
Form W-8, W-9, 4224 or 1001 further undertakes to deliver to each of the
Borrower and the Administrative Agent two (2) additional copies of such form (or
a successor form) on or before the date that such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the
Administrative Agent, either certifying that such Bank, assignee or participant
is entitled to receive payments under this Agreement and the other Loan
Documents without deduction or withholding of any United States federal income
taxes or is subject to such tax at a reduced rate under an applicable tax treaty
or stating that no such exemption or reduced rate is allowable. The
Administrative Agent shall be entitled to withhold United States federal income
taxes at the full withholding rate unless the Bank, assignee or participant
establishes an exemption or that it is subject to a reduced rate as established
pursuant to the above provisions.
10.18 JOINDER OF GUARANTORS.
Any Significant Subsidiary of the Borrower which is required to become a
Guarantor pursuant to Section 7.2.6 [Subsidiaries, Partnerships and Joint
Ventures] shall execute and deliver to the Administrative Agent (i) a Guarantor
Joinder in substantially the form attached hereto as EXHIBIT 1.1(G)(1) pursuant
to which it shall join as a Guarantor each of the documents to which the
Guarantors are parties; (ii) documents in the forms described in Section 6.1
[Conditions to Closing] modified as appropriate to relate to such Subsidiary;
and (iii) documents necessary to grant and perfect a Prior Security Interest to
the Administrative Agent for the benefit of the Banks in all of the equity
interests of such Subsidiary and in all Collateral held by such Subsidiary. The
Borrower shall deliver such Guarantor Joinder and related documents to the
- 85 -
Administrative Agent 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.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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[SIGNATURE PAGE 1 OF 24 TO THE CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
ATTEST: ARCH WESTERN RESOURCES, LLC
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Singer By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Singer, Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
[Seal]
[SIGNATURE PAGE 2 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
------------------------------
[SIGNATURE PAGE 3 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, individually and as
Syndication Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
------------------------------
[SIGNATURE PAGE 4 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
NATIONSBANK, N.A., individually and
as Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Senior Vice President
------------------------------
[SIGNATURE PAGE 5 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
BANK OF MONTREAL
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
------------------------------
[SIGNATURE PAGE 6 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
------------------------------
[SIGNATURE PAGE 7 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ▇▇▇▇▇
-----------------------------------
F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
-------------------------------
[SIGNATURE PAGE 8 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
------------------------------
[SIGNATURE PAGE 9 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
------------------------------
[SIGNATURE PAGE 10 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Manager
------------------------------
[SIGNATURE PAGE 11 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Midwest Regional Manager
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[SIGNATURE PAGE 12 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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[SIGNATURE PAGE 13 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
INTENTIONALLY OMITTED
[SIGNATURE PAGE 14 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
BANK ONE, KENTUCKY, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President
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[SIGNATURE PAGE 15 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
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[SIGNATURE PAGE 16 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President/Deputy
General Manager
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[SIGNATURE PAGE 17 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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[SIGNATURE PAGE 18 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
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[SIGNATURE PAGE 19 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Investment Officer
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[SIGNATURE PAGE 20 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
ABN AMRO BANK, N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Group Vice President
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
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[SIGNATURE PAGE 21 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
DRESDNER BANK AG NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
------------------------------
By: /s/ P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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[SIGNATURE PAGE 22 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
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[SIGNATURE PAGE 23 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
BANK HAPOALIM B.M. PHILADELPHIA
BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
-----------------------------
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Title: Vice President/Controller
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[SIGNATURE PAGE 24 OF 24 TO THE ARCH WESTERN RESOURCES, LLC CREDIT AGREEMENT]
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Executive Vice President
------------------------------