EXHIBIT 4.1
$600,000,000 REVOLVING CREDIT FACILITY
$300,000,000 TERM LOAN
CREDIT AGREEMENT
by and among
ARCH COAL, INC.
and
THE LENDERS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as
Syndication Agent
and
FIRST UNION NATIONAL BANK,
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.......................................................28
1.2.1 Number; Inclusion.........................................28
1.2.2 Determination.............................................28
1.2.3 Administrative Agent's Discretion and Consent.............28
1.2.4 Documents Taken as a Whole................................28
1.2.5 Headings..................................................29
1.2.6 Implied References to This Agreement......................29
1.2.7 Persons...................................................29
1.2.8 Modifications to Documents................................29
1.2.9 From, To and Through......................................29
1.2.10 Shall; Will...............................................29
1.3 Accounting Principles..............................................29
2. REVOLVING CREDIT, SWING LOAN AND TERM LOAN FACILITIES.....................30
2.1 Revolving Credit Commitments.......................................30
2.1.1 Revolving Credit Loans....................................30
2.1.2 Swing Loan Commitment.....................................30
2.2 Nature of Banks' Obligations With Respect to Revolving Credit
Loans............................................................30
2.3 Revolving Credit Facility Fee......................................31
2.4 Loan Requests......................................................31
2.4.1 Committed Loan Requests...................................31
2.4.2 Swing Loan Requests.......................................32
2.5 Making Revolving Credit Loans and Swing Loans......................32
2.5.1 Making Swing Loans........................................32
2.6 Swing Loan Note....................................................33
2.7 Use of Proceeds....................................................33
2.8 Borrowings to Repay Swing Loans....................................33
2.9 Bid Loan Facility..................................................33
2.9.1 Bid Loan Requests.........................................33
2.9.2 Bidding...................................................34
2.9.3 Accepting Bids............................................35
2.9.4 Funding Bid Loans.........................................35
2.9.5 Several Obligations.......................................36
2.9.6 Bid Notes.................................................36
2.9.7 Payments and Prepayments..................................36
2.10 Letter of Credit Subfacility......................................36
2.10.1 Issuance of Letters of Credit.............................36
2.10.2 Letter of Credit Fees.....................................37
2.10.3 Participations in Letters of Credit; Disbursements,
Reimbursement............................................37
2.10.4 [Intentionally Omitted]...................................38
2.10.5 Documentation.............................................39
2.10.6 Determinations to Honor Drawing Requests..................39
2.10.7 Nature of Participation and Reimbursement
Obligations..............................................39
2.10.8 Indemnity.................................................40
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2.10.9 Liability for Acts and Omissions..........................41
2.11 [Intentionally Omitted]...........................................41
2.12 Term Loan Commitments.............................................42
2.13 Nature of Banks' Obligations with Respect to Term Loans...........42
2.14 Term Loan Notes...................................................42
2.15 Use of Proceeds...................................................42
3. INTEREST RATES............................................................42
3.1 Interest Rate Options..............................................42
3.1.1 Interest Rate Options.....................................43
3.1.2 Rate Quotations...........................................44
3.1.3 Change in Fees or Interest Rates..........................44
3.2 Interest Periods...................................................44
3.2.1 Ending Date and Business Day..............................45
3.2.2 Amount of Borrowing Tranche...............................45
3.2.3 Termination Before Applicable Expiration Date............45
3.2.4 Renewals..................................................45
3.3 Interest After Default.............................................45
3.3.1 Letter of Credit Fees, Interest Rate......................45
3.3.2 Other Obligations.........................................45
3.3.3 Acknowledgment............................................46
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs;
Deposits Not Available...........................................46
3.4.1 Unascertainable...........................................46
3.4.2 Illegality; Increased Costs; Deposits Not Available.......46
3.4.3 Administrative Agent's and Lender's Rights................47
3.5 Selection of Interest Rate Options.................................47
4. PAYMENTS..................................................................48
4.1 Payments...........................................................48
4.2 Pro Rata Treatment of Banks........................................48
4.3 Interest Payment Dates.............................................49
4.4 Prepayments........................................................49
4.4.1 Voluntary Prepayments.....................................49
4.4.2 Replacement of a Lender...................................50
4.4.3 Change of Lending Office..................................51
4.4.4 Voluntary Reduction of Commitments........................51
4.4.5 Mandatory Prepayment Upon Issuance of Certain Debt
and Certain Equity.......................................52
4.4.6 Mandatory Prepayment Upon Sale of Assets..................52
4.5 Additional Compensation in Certain Circumstances...................53
4.5.1 Increased Costs or Reduced Return Resulting From
Taxes, Reserves, Capital Adequacy Requirements,
Expenses, Etc............................................53
4.5.2 Indemnity.................................................53
4.6 Notes..............................................................54
4.7 Settlement Date Procedures.........................................54
4.8 Taxes..............................................................55
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4.8.1 No Deductions.............................................55
4.8.2 Stamp Taxes...............................................55
4.8.3 Indemnification for Taxes Paid by Lenders.................55
4.8.4 Certificate...............................................56
4.8.5 Survival..................................................56
4.8.6 Refund and Contest........................................56
5. REPRESENTATIONS AND WARRANTIES............................................56
5.1 Representations and Warranties.....................................56
5.1.1 Organization and Qualification............................57
5.1.2 Shares of Borrower; Subsidiaries; and Subsidiary
Shares...................................................57
5.1.3 Power and Authority.......................................57
5.1.4 Validity and Binding Effect...............................58
5.1.5 No Conflict...............................................58
5.1.6 Litigation................................................59
5.1.7 Financial Statements......................................59
5.1.8 Use of Proceeds; Margin Stock.............................61
5.1.9 Full Disclosure...........................................61
5.1.10 Taxes.....................................................61
5.1.11 Consents and Approvals....................................62
5.1.12 No Event of Default; Compliance With Instruments and
Material Contracts.......................................62
5.1.13 Insurance.................................................63
5.1.14 Compliance With Laws......................................63
5.1.15 Investment Companies; Regulated Entities..................63
5.1.16 Plans and Benefit Arrangements............................63
5.1.17 Employment Matters........................................64
5.1.18 Environmental Matters.....................................64
5.1.19 Senior Debt Status........................................65
5.1.20 Title to Properties.......................................65
5.1.21 Black Lung................................................65
5.1.22 Coastal Agreement.........................................65
5.2 Continuation of Representations....................................65
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT...................66
6.1 First Loans and Letters of Credit..................................66
6.1.1 Officer's Certificate.....................................66
6.1.2 Secretary's Certificate...................................66
6.1.3 Delivery of Guaranty Agreement............................67
6.1.4 Opinion of Counsel........................................67
6.1.5 Legal Details.............................................67
6.1.6 Payment of Fees...........................................67
6.1.7 Consents..................................................68
6.1.8 Officer's Certificate Regarding No Material Adverse
Change and Solvency.....................................68
6.1.9 No Violation of Laws......................................68
6.1.10 No Actions or Proceedings.................................68
6.1.11 Acquisition...............................................68
6.1.12 Financial Projections.....................................69
6.1.13 Arch Western Capital and Financing........................69
6.1.14 Insurance.................................................69
6.1.15 Payoff of Existing Credit Facility........................69
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6.1.16 Non-Occurrence of Certain Events..........................69
6.2 Each Additional Loan or Letter of Credit...........................69
6.3 Syndication........................................................70
6.3.1 Syndication Date Representations and Warranties...........70
6.3.2 Syndication Cooperation...................................70
7. COVENANTS.................................................................70
7.1 Affirmative Covenants..............................................70
7.1.1 Preservation of Existence, Etc............................71
7.1.2 Payment of Liabilities, Including Taxes, Etc..............71
7.1.3 Maintenance of Insurance..................................71
7.1.4 Maintenance of Properties and Leases......................71
7.1.5 Visitation Rights.........................................72
7.1.6 Keeping of Records and Books of Account...................72
7.1.7 Plans and Benefit Arrangements............................72
7.1.8 Compliance With Laws......................................72
7.1.9 Use of Proceeds...........................................73
7.1.10 Operation of Mines........................................73
7.1.11 Maintenance of Material Contracts.........................73
7.2 Negative Covenants.................................................73
7.2.1 Indebtedness..............................................73
7.2.2 Liens.....................................................74
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions.......75
7.2.4 Dispositions of Assets or Subsidiaries....................75
7.2.5 Affiliate Transactions....................................77
7.2.6 Subsidiaries, Partnerships and Joint Ventures.............77
7.2.7 Continuation of or Change in Business.....................77
7.2.8 Plans and Benefit Arrangements............................77
7.2.9 Off-Balance Sheet Financing...............................78
7.2.10 Maximum Leverage Ratio....................................78
7.2.11 Minimum Fixed Charge Coverage Ratio.......................78
7.2.12 Minimum Net Worth.........................................79
7.2.13 No Restriction on Dividends...............................79
7.2.14 Loans and Investments.....................................79
7.2.15 No Amendments to Acquisition Documents....................80
7.3 Reporting Requirements.............................................80
7.3.1 Quarterly Financial Statements............................80
7.3.2 Annual Financial Statements...............................81
7.3.3 Certificate of the Borrower...............................81
7.3.4 Notice of Default.........................................81
7.3.5 Notice of Litigation......................................82
7.3.6 Notice of Change in Debt Rating...........................82
7.3.7 Notices Regarding Plans and Benefit Arrangements..........82
7.3.8 Other Information.........................................84
8. DEFAULT...................................................................84
8.1 Events of Default..................................................84
8.1.1 Payments Under Loan Documents.............................84
8.1.2 Breach of Warranty........................................84
8.1.3 Breach of Negative Covenants or Visitation Rights.........84
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8.1.4 Breach of Other Covenants.................................84
8.1.5 Defaults in Other Agreements or Indebtedness..............85
8.1.6 Judgments or Orders.......................................85
8.1.7 Loan Document Unenforceable...............................85
8.1.8 Uninsured Losses; Proceedings Against Assets..............86
8.1.9 Notice of Lien or Assessment..............................86
8.1.10 Insolvency................................................86
8.1.11 Events Relating to Plans and Benefit Arrangements.........86
8.1.12 Cessation of Business.....................................87
8.1.13 Change of Control.........................................87
8.1.14 Involuntary Proceedings...................................87
8.1.15 Voluntary Proceedings.....................................87
8.2 Consequences of Event of Default...................................88
8.2.1 Events of Default Other Than Bankruptcy, Insolvency
or Reorganization Proceedings............................88
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings......88
8.2.3 Set-off...................................................88
8.2.4 Suits, Actions, Proceedings...............................89
8.2.5 Application of Proceeds...................................89
8.2.6 Other Rights and Remedies.................................90
8.3 Right of Competitive Bid Loan Lenders..............................90
9. THE AGENTS................................................................90
9.1 Appointment......................................................90
9.2 Delegation of Duties.............................................90
9.3 Nature of Duties; Independent Credit Investigation...............91
9.4 Actions in Discretion of Agents; Instructions From the Banks.....91
9.5 Reimbursement and Indemnification of Agents by the Borrower......92
9.6 Exculpatory Provisions; Limitation of Liability..................92
9.7 Reimbursement and Indemnification of Agents by the Lenders.......93
9.8 Reliance by Agents...............................................94
9.9 Notice of Default................................................94
9.10 Notices..........................................................94
9.11 Banks in Their Individual Capacities.............................94
9.12 Holders of Notes.................................................95
9.13 Equalization of Lenders..........................................95
9.14 Successor Agents.................................................95
9.15 Administrative Agent's Fees......................................96
9.16 Availability of Funds............................................96
9.17 Calculations.....................................................97
9.18 Beneficiaries....................................................97
10. MISCELLANEOUS............................................................97
10.1 Modifications, Amendments or Waivers.............................97
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10.1.1 Increase of Revolving Credit Commitments; Extension
of Expiration Date; Modification of Terms of
Payment.................................................98
10.1.2 Increase of Term Loan Commitments; Extension of Term
Loan Expiration Date; Modification of Terms of
Payment.................................................98
10.1.3 Release of Guarantor.....................................98
10.1.4 Miscellaneous............................................98
10.2 No Implied Waivers; Cumulative Remedies; Writing Required........99
10.3 Reimbursement and Indemnification of Lenders by the
Borrower; Taxes..................................................99
10.4 Holidays........................................................100
10.5 Funding by Branch, Subsidiary or Affiliate......................100
10.5.1 Notional Funding........................................100
10.5.2 Actual Funding..........................................101
10.6 Notices.........................................................101
10.7 Severability....................................................101
10.8 Governing Law...................................................102
10.9 Prior Understanding.............................................102
10.10 Duration; Survival..............................................102
10.11 Successors and Assigns..........................................102
10.11.1 Binding Effect; Assignments by Borrower................102
10.11.2 Assignments and Participations by Banks Other Than
Assignments of Bid Loans Among Designating Banks
and Designated Lenders................................103
10.11.3 Assignments of Bid Loans Among Designating Banks
and Designated Lenders................................104
10.11.4 Foreign Assignees and Participants.....................105
10.11.5 Assignments by Lenders to Federal Reserve Banks........105
10.12 Confidentiality.................................................106
10.12.1 General................................................106
10.12.2 Sharing Information With Affiliates of the Lenders.....106
10.13 Counterparts....................................................106
10.14 Agent's or Lender's Consent.....................................106
10.15 Exceptions......................................................107
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL..........................107
10.17 Tax Withholding Clause..........................................107
10.18 Joinder of Guarantors...........................................108
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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
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(B) - BID NOTE
EXHIBIT 1.1(D) - DESIGNATION AGREEMENT
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(G)(2) - CONTINUING GUARANTY AND SURETYSHIP AGREEMENT
EXHIBIT 1.1(R) - REVOLVING CREDIT NOTE
EXHIBIT 1.1(S) - SWING LOAN NOTE
EXHIBIT 1.1(T) - TERM NOTE
EXHIBIT 2.4.1 - COMMITTED LOAN REQUEST
EXHIBIT 2.4.2 - SWING LOAN REQUEST
EXHIBIT 2.9.1 - BID LOAN REQUEST
EXHIBIT 4.4.4 - COMMITMENT REDUCTION NOTICE
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 COAL, INC., a Delaware corporation (the "Borrower"), the LENDERS (as
hereinafter defined), ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, in its capacity
as syndication agent, FIRST UNION NATIONAL BANK, 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 a revolving
credit facility to the Borrower in an aggregate principal amount not to exceed
$600,000,000 and a $300,000,000 term loan facility;
WHEREAS, the revolving credit and term loan facilities shall be used to
finance the Acquisition Transactions (as hereinafter defined), to refinance the
Existing Credit Facility and for general corporate purposes; 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 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
7.2.15.
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
7.2.15.
ACQUISITION TRANSACTIONS shall mean transactions contemplated
by the Purchase Agreement.
ADMINISTRATIVE AGENT shall mean PNC Bank, National
Association, in its capacity as administrative agent for the Lenders 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.
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 (other than an Excluded Subsidiary) 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.
ANNUAL STATEMENTS shall have the meaning assigned to that term
in Section 5.1.7(i).
APPLICABLE FACILITY FEE RATE shall mean the percentage rate
per annum at the indicated level (i) of Leverage Ratio for any period during
which a Debt Rating is not in
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effect as set forth in the pricing grid on SCHEDULE 1.1(A) PART (A) below the
heading "Facility Fee"; or (ii) of Debt Rating for any period a Debt Rating is
in effect as set forth in the pricing grid on SCHEDULE 1.1(A) PART (B) below the
heading "Facility Fee." The Applicable Facility Fee Rate shall be computed in
accordance with the parameters set forth on SCHEDULE 1.1(A). Notwithstanding the
foregoing, it is expressly agreed that through and including the Initial
Delivery Date, the Applicable Facility Fee Rate shall be such rate as computed
in accordance with the parameters set forth on SCHEDULE 1.1(A) but no less than
the rate set forth in the pricing grid in Level IV of PART (A) of SCHEDULE
1.1(A). For periods after the Initial Delivery Date until such time as the
Borrower's senior unsecured long-term debt, on a consolidated basis, has been
rated Investment Grade, the Applicable Facility Fee Rate shall be the amount
determined under Part (A) of SCHEDULE 1.1(A) (based upon the Leverage Ratio),
and for any period thereafter when a Debt Rating is in effect the Applicable
Facility Fee Rate shall be the amount determined under Part (B) of SCHEDULE
1.1(A).
APPLICABLE LETTER OF CREDIT FEE RATE shall mean the rate per
annum at the indicated level (i) 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 "Letter of Credit Fee," or (ii) of Debt Rating, for
any period a Debt Rating is in effect as set forth in the pricing grid on
SCHEDULE 1.1(A) PART (B) below the heading "Letter of Credit Fee." The
Applicable Letter of Credit Fee Rate shall be computed in accordance with the
parameters set forth on SCHEDULE 1.1(A). Notwithstanding the foregoing, it is
expressly agreed that through and including the Initial Delivery Date, the
Applicable Letter of Credit Fee Rate shall be such rate as computed in
accordance with the parameters set forth on SCHEDULE 1.1(A) but no less than the
rate set forth in the pricing grid in Level IV of PART (A) of SCHEDULE 1.1(A).
For periods after the Initial Delivery Date until such time as the Borrower's
senior unsecured long-term debt, on a consolidated basis, has been rated
Investment Grade, the Applicable Letter of Credit Fee Rate shall be the amount
determined under PART (A) of SCHEDULE 1.1(A) (based upon the Leverage Ratio),
and for any period thereafter when a Debt Rating is in effect, the Applicable
Letter of Credit Fee Rate shall be the amount determined under PART (B) of
SCHEDULE 1.1(A).
APPLICABLE MARGIN shall mean, as applicable:
(A) the percentage spread to be added to Euro-Rate under the
Revolving Credit 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 "Revolving Credit
Euro-Rate Spread,"
(B) the percentage spread to be added to Euro-Rate under the
Revolving Credit Euro-Rate Option at the indicated level of Debt Rating 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 "Revolving Credit Euro-Rate
Spread,"
(C) the percentage spread to be added to Euro-Rate under the
Term Loan Euro-Rate Option at the indicated level of Leverage Ratio for any
period during which a
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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
Term Loan Euro-Rate Option at the indicated level of Debt Rating 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 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 IV of PART (A) of SCHEDULE 1.1(A). For periods after the Initial Delivery
Date, until such time as the Borrower'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 COAL GROUP shall mean, as of any date of determination,
the Borrower and its Subsidiaries (other than the Excluded Subsidiaries).
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 shall mean Arch Western Resources, LLC, a limited
liability company organized and existing under the laws of the State of
Delaware.
ARCH WESTERN CREDIT FACILITY shall mean that certain Credit
Agreement by and among Arch Western, PNC Bank as administrative agent, ▇▇▇▇▇▇ as
syndication agent and NationsBank N.A. as documentation agent, providing for a
$675,000,000 term loan facility to Arch Western, as the same may be amended,
restated, modified or supplemented from time to time after the date hereof.
ARCH WESTERN GROUP shall mean, as of any date of
determination, AWAC, Arch Western and the Subsidiaries of Arch Western.
ARCH WESTERN LLC AGREEMENT shall mean that certain Limited
Liability Company Agreement by and between AWAC and Delta Housing, Inc., a
Delaware corporation,
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dated as of June 1, 1998, with AWAC and Delta Housing, Inc. as members and
creating Arch Western Resources, LLC, a Delaware limited liability company.
ARCO shall mean Atlantic Richfield Company, a corporation
organized and existing under the laws of the State of Delaware.
ARRANGERS shall mean PNC 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).
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 such list of individuals from time to
time by giving written notice of such amendment to the Administrative Agent.
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 $500,000,000, 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 80% of the net increase in Consolidated
Tangible Net Worth resulting from the issuance of any equity securities by the
Borrower, for the period from April 1, 1998 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 either the Revolving Credit Base
Rate Option or the Term Loan Base Rate Option.
- 5 -
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.
BID shall have the meaning assigned to such term in Section
2.9.2.
BID LOAN BORROWING DATE shall mean, with respect to any Bid
Loan, the date for the making thereof which shall be a Business Day.
BID LOAN EURO-RATE RATE OPTION shall mean the option of the
Borrower to request that the Banks submit Bids to make Bid Loans bearing
interest at a rate per annum quoted by such Banks at the Euro-Rate in effect two
Business Days before the Borrowing Date of such Bid Loan plus a Euro-Rate Bid
Loan Spread.
BID LOAN FIXED RATE OPTION shall mean the option of the
Borrower to request that the Banks submit Bids to make Bid Loans bearing
interest at a fixed rate per annum quoted by such Banks as a numerical
percentage (and not as a spread over another rate such as the Euro-Rate).
BID LOAN INTEREST PERIOD shall have the meaning assigned to
such term in Section 2.9.1.
BID LOAN LENDERS shall have the meaning assigned to such term
in Section 8.3.
BID LOAN PROCESSING FEE shall have the meaning assigned to
such term in Section 9.15.
BID LOAN REQUEST shall have the meaning assigned to such term
in Section 2.9.1.
BID LOANS shall mean collectively and Bid Loan shall mean
separately all of the Bid Loans or any Bid Loan made by any of the Lenders to
the Borrower pursuant to Section 2.9.
BID NOTES shall mean collectively and Bid Note shall mean
separately all of the Bid Notes of the Borrower in the form of EXHIBIT 1.1(B)
evidencing the Bid Loans, together with all amendments, extensions, renewals,
replacements, refinancings or refunds thereof in whole or in part.
BORROWER shall mean Arch Coal, Inc., a corporation organized
and existing under the laws of the State of Delaware.
BORROWER SHARES shall have the meaning set forth in Section
5.1.2.
- 6 -
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 either a Euro-Rate Option or a
Bid Loan Fixed Rate Option applies which become subject to the same Interest
Rate Option under the same Loan Request by the Borrower and which have the same
Interest Period shall constitute one Borrowing Tranche, and (ii) all Loans to
which a Base Rate 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.
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 Arch Western (or a Subsidiary of Arch
Western) and Itochu Coal International, Inc., a Delaware corporation, dated as
of January 1, 1997, as amended, with Arch Western and Itochu Coal International,
Inc. as members of Canyon Fuel Company, LLC, a Delaware limited liability
company,.
CLOSING DATE shall mean the Business Day on which the first
Loan 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.
COMMERCIAL LETTER OF CREDIT shall mean any Letter of Credit
which is a commercial letter of credit issued in respect of the purchase of
goods or services by one or more of the Loan Parties in the ordinary course of
their business.
COMMITMENT shall mean as to any Bank the aggregate of its
Revolving Credit Commitment and Term Loan Commitment and, in the case of PNC
Bank, its Swing Loan Commitment, and Commitments shall mean the aggregate of the
Revolving Credit Commitments, Term Loan Commitments and Swing Loan Commitment of
all of the Banks.
- 7 -
COMMITMENT REDUCTION NOTICE shall have the meaning set forth
in Section 4.4.4.
COMMITTED LOAN shall mean either a Revolving Credit Loan, a
Swing Loan or a Term Loan.
COMMITTED LOAN INTEREST PERIOD shall have the meaning set
forth in Section 3.2.
COMMITTED LOAN REQUEST shall mean a request for a Revolving
Credit Loan or a Swing Loan or a request to select, convert to or renew a Base
Rate Option or Euro-Rate Option with respect to an outstanding Revolving Credit
Loan or Term Loan in accordance with Sections 2.4, 3.1 and 3.2.
CONSOLIDATED TANGIBLE NET WORTH shall mean as of any date of
determination total stockholders' equity less intangible assets of the Borrower
and its Subsidiaries as of such date determined and consolidated in accordance
with GAAP less the positive number, if any, equal to the amount of the
Investment by the Borrower and its Subsidiaries in Permitted Joint Ventures in
excess of $30,000,000 and adjusted to exclude the after tax effect of any
changes in accounting principles subsequent to March 31, 1998.
CONTRIBUTION AGREEMENT shall mean that certain Contribution
Agreement among the Borrower, AWAC, ARCO, Delta Housing, Inc., a Delaware
corporation, and Arch Western.
DEBT shall mean for any Person as of any date of determination
the aggregate 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 (other than, with respect
to the Borrower and its Subsidiaries, contingent reimbursement obligations
aggregating at any time up to $10,000,000 and other than contingent
reimbursement obligations in respect of the letter of credit issued to support
the Port Bond) and (v) the amount of all indebtedness (whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, or joint or several) in respect of all Guarantees by such Person
(the "Guaranteeing Person") of Debt of other Persons (each such other Person
being a "Primary Obligor" and the obligations of a Primary Obligor which are
subject to a Guarantee by a Guaranteeing Person being "Primary Obligations") (it
being understood that if the Primary Obligations of the Primary Obligor do not
constitute Debt, then the Guarantee by the Guaranteeing Person of the Primary
Obligations of the Primary Obligor shall not constitute Debt). It is expressly
agreed that the amount of the indebtedness in respect of
- 8 -
the Guaranty by the Borrower of the Port Bond, shall be excluded from the amount
determined under clause (v) of the previous sentence. Further, it is expressly
agreed that the difference between actual funded indebtedness and the fair
market value of funded indebtedness recorded as required by Accounting
Principles Board Opinion No. 16 (as in effect on the Closing Date) will be
excluded from indebtedness in the determination of Debt.
DEBT RATING shall mean the rating of the Borrower's senior
unsecured long-term debt by either of Standard & Poor's or ▇▇▇▇▇'▇.
DELIVERY DATE shall mean the earlier of (i) the date on which
the Borrower delivers its consolidated financial statements pursuant to Sections
7.3.1 and 7.3.2, together with the duly executed compliance certificate required
by Section 7.3.3 or (ii) one Business Day following the date on which such
financial statements are due to be delivered pursuant to such Sections.
DERIVATIVES OBLIGATIONS shall mean, for any Person, all
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 any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
DESIGNATED LENDER shall mean any Person who has been
designated by a Bank to fund Bid Loans and has executed a Designation Agreement
and thereby becomes a party to this Agreement pursuant to Section 10.11.3.1.
DESIGNATING BANK shall have the meaning assigned to such term
in Section 10.11.3.1.
DESIGNATION AGREEMENT shall mean a designation agreement
entered into by a Bank and a Designated Lender and accepted by the
Administrative Agent, in substantially the form of EXHIBIT 1.1(D).
DOCUMENTATION AGENT shall mean First Union National Bank 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.
DRAWING DATE shall have the meaning assigned to that term in
Section 2.10.3.2.
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,
- 9 -
depletion and amortization for such period determined in accordance with GAAP.
For purposes of calculating the Fixed Charge Coverage Ratio and the Leverage
Ratio: (i) EBITDDA of Arch Western 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
Arch Western 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 Arch Western 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 Arch Western and its
Subsidiaries for such months to be reasonably acceptable to the Agents. Further,
for purposes of calculating the Fixed Charge Coverage Ratio and the Leverage
Ratio for the fiscal quarters ended June 30, 1998, and September 30, 1998,
EBITDDA of Arch Western 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 Arch Western 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 Arch Western 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).
ENVIRONMENTAL CLAIM shall mean any administrative, regulatory
or judicial action, suit, claim, notice of non-compliance 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 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.
- 10 -
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 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 BID LOAN shall mean any Bid Loan that bears interest
under the Bid Loan Euro-Rate Option.
EURO-RATE BID LOAN SPREAD shall mean the spread quoted by a
Bank in its Bid to apply to such Bank's Bid Loan if such Bank's Bid is accepted.
The Euro-Rate Bid Loan Spread shall be quoted as a percentage rate per annum and
expressed in multiples of 1/1000 of one percentage point to be either added to
(if it is positive) or subtracted from (if it is negative) the Euro-Rate in
effect two (2) Business Days before the Borrowing Date with respect to such Bid
Loan. Interest on Euro-Rate Bid Loans shall be computed based on a year of 360
days and actual days elapsed.
EURO-RATE INTEREST PERIOD shall mean the Interest Period
applicable to a Loan subject to the Euro-Rate Option.
- 11 -
EURO-RATE OPTION shall mean either the Revolving Credit
Euro-Rate Option, the Bid Loan Euro-Rate Option or the Term Loan Euro-Rate
Option.
EURO-RATE RESERVE PERCENTAGE shall mean the maximum percentage
(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the 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."
EXCLUDED SUBSIDIARIES shall mean, collectively, AWAC, Arch
Western and the Subsidiaries of Arch Western.
EXISTING CREDIT FACILITY shall mean collectively all interest,
principal, fees and other amounts due and owing by the Borrower and its
Significant Subsidiaries under that certain Credit Agreement by and among the
Borrower, certain of its Subsidiaries, ▇▇▇▇▇▇ Guaranty Trust Company of New York
as Documentation and Syndication Agent and PNC Bank, National Association, as
Administrative and Syndication Agent, dated July 1, 1997, as amended, providing
for a $500,000,000 credit facility.
EXPIRATION DATE shall mean, with respect to the Revolving
Credit Commitments and Swing Loan Commitment, and as applicable to the Bid
Loans, May 31, 2003.
FACILITY FEE shall mean the fee referred to in Section 2.3.
FEDERAL FUNDS EFFECTIVE RATE for any day shall mean the rate
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day as being the weighted average of the rates
on overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve Bank (or
any successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; PROVIDED, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
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 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,
- 12 -
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 interest
expense (other than Permitted Loan Origination Expense) of the Borrower and its
Subsidiaries, plus the Appropriate Percentage of interest expense of each
Special Subsidiary, each on a consolidated basis in accordance with GAAP, plus
operating lease expense of the Borrower and its Subsidiaries, plus the
Appropriate Percentage of operating lease expense of each Special Subsidiary,
each on a consolidated basis in accordance with GAAP, with the amounts under the
numerator and denominator of such ratio all calculated as of the last day of
each fiscal quarter for the four fiscal quarters of the Borrower then ended. It
is assumed that operating lease expense of Arch Western 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 Arch Western 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 Arch Western
and its Subsidiaries for such fiscal quarter determined and consolidated in
accordance with GAAP, 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 Arch
Western 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 Arch Western 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, interest expense of Arch Western and its
Subsidiaries, including the Appropriate Percentage of 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, interest expense of Arch
Western and its Subsidiaries for such fiscal quarter determined and consolidated
in accordance with GAAP, plus the Appropriate Percentage of 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, interest expense of Arch Western
and its Subsidiaries for the two fiscal quarters then ended determined and
consolidated in accordance with GAAP, plus the Appropriate Percentage of
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,
interest expense of Arch Western and its Subsidiaries for the three fiscal
quarters then ended determined and consolidated in accordance with GAAP, plus
the Appropriate Percentage of interest expense of Canyon Fuel for
- 13 -
the three fiscal quarters then ended determined in accordance with GAAP,
multiplied by (y) four-thirds (4/3).
FIXED RATE shall mean a fixed interest rate quoted by a Bank
in its Bid to apply to such Bank's Bid Loan over the term of such Bid Loan if
such Bank's Bid is accepted.
FIXED RATE BID LOAN shall mean a Bid Loan that bears interest
under the Bid Loan Fixed Rate Option.
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.
GOVERNMENTAL ACTS shall have the meaning assigned to that term
in Section 2.10.8.
GUARANTOR shall mean at any time each of the Significant
Subsidiaries of the Borrower.
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.
HISTORICAL STATEMENTS shall have the meaning assigned to that
term in Section 5.1.7(i).
- 14 -
INDEBTEDNESS shall mean, as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations (contingent or
otherwise) under any letter of credit, (iv) any other transaction (including
production payments (excluding royalties), installment purchase agreements,
forward sale or purchase agreements, capitalized leases and conditional sales
agreements) having the commercial effect of a borrowing of money entered into by
such Person to finance its operations or capital requirements (but not including
trade payables and accrued expenses incurred in the ordinary course of business
which are not represented by a promissory note or other evidence of indebtedness
and which are not more than thirty (30) days past due), or (v) any Guaranty of
any such Indebtedness. It is understood that Derivatives Obligations shall not
be deemed to be Indebtedness.
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 and consolidating statements
of income and stockholders' 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, the Applicable Facility Fee Rate
and the Applicable Letter of Credit Fee Ratio. 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.
- 15 -
INTEREST PERIOD shall mean either a Committed Loan Interest
Period or a Bid Loan Interest Period.
INTEREST RATE OPTION shall mean any Revolving Credit Euro-Rate
Option, Term Loan Euro-Rate Option, Bid Loan Euro-Rate Option, Bid Loan Fixed
Rate Option, Term Loan Base Rate Option, Revolving Credit Base Rate Option or
Offered Rate Option.
INTERIM STATEMENTS shall have the meaning assigned to that
term in Section 5.1.7(i).
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 Borrower'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.
ISSUING BANKS shall mean, with respect to a Letter of Credit,
including any replacements therefor or extensions thereof, PNC Bank or any other
Bank which shall have consented to its designation by the Borrower as an
"Issuing Bank" by providing prior written notice of such designation and consent
to the Administrative Agent.
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.
LENDER shall mean each of the Banks and each of the Designated
Lenders.
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LETTER OF CREDIT shall have the meaning assigned to that term
in Section 2.10.1.
LETTER OF CREDIT FEE shall have the meaning assigned to that
term in Section 2.10.2.
LETTERS OF CREDIT OUTSTANDING shall mean at any time the sum
of (i) the aggregate undrawn face amount of outstanding Letters of Credit and
(ii) the aggregate amount of all unpaid and outstanding Reimbursement
Obligations.
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 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, Canyon Fuel LLC Agreement, Mountain Coal LLC Agreement, Arch of
Wyoming LLC Agreement, AU Sub LLC Agreement, State Leases LLC Agreement and
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 Guaranty 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.
LOAN REQUEST shall mean either a Bid Loan Request or a
Committed Loan Request.
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LOANS shall mean collectively and Loan shall mean separately
all Revolving Credit Loans, Term Loans, Swing Loans and Bid Loans or any
Revolving Credit Loan, Term Loan, Swing Loan or Bid Loan.
MANDATORY PREPAYMENT shall have the meaning assigned to such
term in Section 4.4.5.
MATERIAL ADVERSE CHANGE shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of this Agreement
or any other Loan Document, (b) is or could reasonably be expected to be
materially adverse to the business, financial condition or results of operations
of the Borrower and its Subsidiaries taken as a whole, or (c) impairs materially
or could reasonably be expected to impair materially the ability of any Agent or
any of the Lenders, to the extent permitted, to enforce their legal remedies
pursuant to this Agreement or any other Loan Document.
MATERIAL CONTRACTS shall mean collectively: (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 Borrower is required to
file as an exhibit to any annual, quarterly or other report required to be filed
by the Borrower 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.
MATERIAL 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.
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,
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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 CASH PROCEEDS shall mean, with respect to any transaction,
an amount equal to the cash proceeds received by the Borrower or any of its
Subsidiaries (other than Excluded Subsidiaries) from or in respect of such
transaction (including, when received, any cash proceeds received as income or
other cash proceeds of any non-cash proceeds of such transaction), less (x) any
expenses or charges (including commissions, fees and taxes paid or payable)
reasonably incurred by such Person in respect of such transaction, (y) any
amounts considered appropriate by the chief financial officer of the Borrower to
provide reserves in accordance with GAAP for payment of indemnities or
liabilities that may be incurred in connection with such sale or disposition,
and (z) in the case of any asset sale permitted by Section 7.2.4(v), the amount
of any debt secured by a Lien on the related asset and discharged as part of
such asset sale. For purposes of this definition, if taxes or other expenses
payable in connection with the sale or other disposition of any asset are not
known as of the date of such sale or other disposition, then such fees,
commissions, expenses or taxes shall be estimated in good faith by the chief
financial officer of the Borrower and such estimated amounts shall be deducted.
At such time as any reserved amount described in clause (y) above is no longer
required to be held in reserve, the balance thereof, after payment of the
related liabilities or indemnities, shall be used to make a mandatory prepayment
of the Term Loans in accordance with Section 4.4.6.
NOTES shall mean the Revolving Credit Notes, Term Notes, Swing
Loan Notes and Bid Notes, if any.
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 Lenders, howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, under or in connection with this
Agreement, any Notes, the Letters of Credit, the Administrative Agent's Letter
or any other Loan Document.
OFFERED AMOUNT shall have the meaning assigned to such term in
Section 2.9.2.
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OFFERED RATE OPTION shall mean the rate of interest quoted
from time to time by the Administrative Agent to the Borrower and accepted by
the Borrower with respect to a Swing Loan.
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.
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 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 INVESTMENTS IN ARCH WESTERN shall have the meaning
assigned to that term in Section 7.2.14(v).
PERMITTED JOINT VENTURE shall mean any Person (i) with respect
to which the ownership of equity interests thereof by the Borrower or any
Subsidiary of the Borrower is accounted for in accordance with the "equity
method" in accordance with GAAP; (ii) engaged in a line of business permitted by
Section 7.2.7 [Continuation of or Change in Business]; and (iii) with respect to
which the equity interests thereof were acquired by the Borrower or Subsidiary
of the Borrower in an arms-length transaction; provided that any such Person
shall be treated for purposes of this Agreement as a Subsidiary and not a
Permitted Joint Venture if (A) the Borrower has management control over the
operations of such Person and (B) the Borrower owns directly or indirectly a
majority of the economic equity interest in such Person.
- 20 -
PERMITTED LIENS shall mean:
(i) Liens for taxes, assessments, or similar charges,
incurred in the ordinary course of business and which are not yet due and
payable;
(ii) Pledges or deposits made in the ordinary course of
business to secure payment of reclamation liabilities, worker's compensation, or
to participate in any fund in connection with worker's compensation,
unemployment insurance, old-age pensions or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers,
or other like Liens, securing obligations incurred in the ordinary course of
business that are not yet due 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 on property leased by any Loan Party or Subsidiary
of a Loan Party under capital or operating leases (in either case, as the nature
of such lease is determined in accordance with GAAP) securing obligations of
such Loan Party or Subsidiary to the lessor under such leases;
(vii) Purchase Money Security Interests;
(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 in the aggregate materially
impair the ability of any member of the Arch Coal Group 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 member of the Arch Coal Group maintains such reserves
or other appropriate provisions as
- 21 -
shall be required by GAAP and pays all such taxes, assessments or
charges forthwith upon the commencement of proceedings to foreclose
any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of
title to, real or personal property, including any attachment of
personal or real property or other legal process prior to
adjudication of a dispute on the merits;
(3) Claims or Liens of mechanics, materialmen,
warehousemen, carriers, or other statutory nonconsensual Liens; or
(4) Liens resulting from judgments or orders described
in Section 8.1.6;
(xi) any Lien or restriction resulting from ownership, by an
entity other than an Affiliate of the Borrower, of a minority interest in Canyon
Fuel: and
(xii) the pledge by Coal-Mac, Inc. and Ashland Terminal, Inc.
of their respective partnership interests in Dominion Terminal Associates in
connection with the Port Bond.
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 and under the Arch Western
Credit Facility which are required to be capitalized in accordance with GAAP.
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.
PNC BANK shall mean PNC Bank, National Association, its
successors and assigns.
PORT BOND shall mean collectively, those certain Coal Terminal
Revenue Refunding Bonds (Dominion Terminal Associates Project), Series 1987-A,
B, C and D Bonds issued by Peninsula Ports Authority of Virginia, a political
subdivision of the Commonwealth of Virginia, in the face amount of $23,240,000,
together with any renewals thereof or replacements therefor so long as the face
amount thereof is not in excess of $23,240,000.
- 22 -
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.
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
Borrower 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.
REGULATED SUBSTANCES shall mean any substance, the generation,
manufacture, extraction, processing, distribution, treatment, storage, disposal,
transport, 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.
REIMBURSEMENT OBLIGATION shall have the meaning assigned to
such term in Section 2.10.3.2.
REPLACEMENT SALES CERTIFICATE shall HAVE THE MEANING ASSIGNED
TO SUCH TERM IN SECTION 7.2.4 (III).
REPORTABLE EVENT shall mean a reportable event described in
Section 4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer Plan.
REQUESTED AMOUNT shall have the meaning assigned to such term
in Section 2.9.1.
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REQUIRED BANKS shall mean
(A) if there are no Loans or Reimbursement Obligations
outstanding, Required Banks shall mean Banks whose Commitments (excluding the
Swing Loan Commitment) aggregate at least 51% of the Commitments (excluding the
Swing Loan Commitment) of all of the Banks, or
(B) if there are Loans or Reimbursement Obligations
outstanding, and the Revolving Credit Commitments remain in effect, Required
Banks shall mean any Bank or group of Banks if the sum of the principal amount
of the Term Loans then outstanding and Revolving Credit Commitments of such
Banks aggregates at least 51% of the sum of the total principal amount of all of
the Term Loans then outstanding plus the aggregate Revolving Credit Commitments,
or
(C) if there are Loans or Reimbursement Obligations
outstanding but the Revolving Credit Commitments no longer remain in effect,
Required Banks shall mean any Bank or group of Banks if the sum of the principal
amount of the Loans and Revolving Credit Ratable Shares of Reimbursement
Obligations then outstanding of such Banks aggregate at least 51% of the sum of
the total principal amount of all Loans then outstanding plus the aggregate
principal amount of all Reimbursements Obligations then outstanding.
REQUIRED SHARE shall have the meaning assigned to such term in
Section 4.7.
REVOLVING CREDIT BASE RATE OPTION shall mean the option of the
Borrower to have Revolving Credit Loans bear interest at the rate and under the
terms and conditions set forth in Section 3.1.1(a)(i).
REVOLVING CREDIT 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 Revolving Credit Loans," and thereafter
on Schedule I to the most recent Assignment and Assumption Agreement executed by
such Bank, and Revolving Credit Commitments shall mean the aggregate Revolving
Credit Commitments of all of the Banks.
REVOLVING CREDIT EURO-RATE OPTION shall mean the option of the
Borrower to have Revolving Credit Loans bear interest at the rate and under the
terms and conditions set forth in Section 3.1.1(a)(ii).
REVOLVING CREDIT LOANS shall mean collectively and Revolving
Credit Loan shall mean separately all Revolving Credit Loans or any Revolving
Credit Loan made by the Banks or one of the Banks to the Borrower pursuant to
Section 2.1 or 2.10.3. A Bid Loan is not a Revolving Credit Loan, except that it
will be treated as a Revolving Credit Loan following a termination of the
Commitments hereunder pursuant to Section 8.2.1 or 8.2.2 as provided in Section
8.3.
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REVOLVING CREDIT NOTE shall mean any Revolving Credit Note of
the Borrower in the form of EXHIBIT 1.1(R) issued by the Borrower at the request
of a Bank pursuant to Section 4.6 evidencing the Revolving Credit Loans to such
Bank, together with all amendments, extensions, renewals, replacements,
refinancings or refundings thereof in whole or in part.
REVOLVING CREDIT RATABLE SHARE shall mean the proportion that
a Bank's Revolving Credit Commitment (excluding the Swing Loan Commitment) bears
to the Revolving Credit Commitments (excluding the Swing Loan Commitments) of
all of the Banks.
REVOLVING FACILITY USAGE shall mean at any time the sum of the
Revolving Credit Loans outstanding, the Bid Loans outstanding, the Swing Loans
outstanding and the Letters of Credit Outstanding.
SEC shall mean the Securities and Exchange Commission or any
governmental agencies substituted therefor.
SETTLEMENT DATE shall mean each Business Day on which the
Administrative Agent effects settlement pursuant to Section 4.7.
SIGNIFICANT SUBSIDIARY shall mean any Subsidiary of Borrower
(other than the Excluded Subsidiaries) 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 to be treated as a Subsidiary in accordance with the proviso to the
definition of Permitted Joint Venture.
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STANDARD & POOR'S shall mean Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
STANDBY LETTER OF CREDIT shall mean a Letter of Credit issued
to support obligations of one or more Persons, contingent or otherwise, which
finance the working capital and business needs of such Persons incurred in the
ordinary course of business.
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 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. It is
expressly agreed that each Special Subsidiary shall be deemed to be a Subsidiary
of the Borrower for the 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, the Fixed Charge Coverage Ratio and inclusion in Section
7.2.9 [OFF-BALANCE SHEET FINANCING], as described more fully in the definitions
of "EBITDDA," "Leverage Ratio," "Fixed Charge Coverage Ratio" and Section 7.2.9.
SUBSIDIARY SHARES shall have the meaning assigned to that term
in Section 5.1.2.
SWING LOAN COMMITMENT shall mean PNC Bank's commitment to make
Swing Loans to the Borrower pursuant to Section 2.4.2 hereof, in an aggregate
principal amount up to $50,000,000.
SWING LOAN NOTE shall mean the Swing Loan Note of the Borrower
in the form of EXHIBIT 1.1(S) evidencing the Swing Loans, together with all
amendments, extensions, renewals, replacements, refinancings or refundings
thereof in whole or in part.
SWING LOAN REQUEST shall mean a request for Swing Loans made
in accordance with Section 2.4.2 hereof.
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SWING LOANS shall mean collectively and Swing Loan shall mean
separately all Swing Loans or any Swing Loan made by PNC Bank to the Borrower
pursuant to Section 2.5.
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) the 90th day following the Closing Date.
SYNTHETIC LEASE shall have the meaning assigned to such term
in Section 7.2.9.
TAX SHARING AGREEMENT shall mean that certain Tax Sharing
Agreement dated as of June 1, 1998 by and among the Borrower, AWAC, Arch Western
and Delta Housing, Inc., a Delaware corporation.
TERM LOAN shall have the meaning given to such term in Section
2.12; Term Loans shall mean collectively all of the Term Loans.
TERM LOAN 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(b)(i). 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 LOAN EURO-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(b)(ii).
TERM LOAN EXPIRATION DATE shall mean, with respect to the Term
Loan Commitments, May 31, 2003.
TERM LOAN RATABLE SHARE shall mean the proportion that a
Bank's Term Loan Commitment bears to the 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 2.14
evidencing the Term Loans, together with all
- 27 -
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, 1998, 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.
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 Lenders shall be deemed to include good-faith estimates by the
Administrative Agent or the Lenders (in the case of quantitative determinations)
and good-faith beliefs by the Administrative Agent or the Lenders (in the case
of qualitative determinations) and such determination shall be conclusive absent
manifest error;
1.2.3 ADMINISTRATIVE AGENT'S DISCRETION AND CONSENT.
whenever the Administrative Agent or the Lenders are granted
the right herein to act in its or their sole discretion or to grant or withhold
consent such right shall be exercised in good faith;
1.2.4 DOCUMENTS TAKEN AS A WHOLE.
the words "hereof," "herein," "hereunder," "hereto" and
similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole and not to any particular
provision of this Agreement or such other Loan Document;
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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
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
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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. REVOLVING CREDIT, SWING LOAN AND TERM LOAN FACILITIES
2.1 REVOLVING CREDIT COMMITMENTS.
2.1.1 REVOLVING CREDIT LOANS.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, each Bank severally agrees
to make Revolving Credit Loans to the Borrower at any time or from time to time
on or after the date hereof to the Expiration Date, PROVIDED that (subject to
Section 2.9.1 with respect to taking into account outstanding Bid Loans) after
giving effect to such Revolving Credit Loan the aggregate amount of Revolving
Credit Loans from such Bank shall not exceed such Bank's Revolving Credit
Commitment minus such Bank's Revolving Credit Ratable Share of the Letters of
Credit Outstanding PROVIDED FURTHER that the Revolving Facility Usage at any
time, shall not exceed the Revolving Credit Commitments of all the Banks. Within
such limits of time and amount, and subject to the other provisions of this
Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section
2.1.
2.1.2 SWING LOAN COMMITMENT.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, PNC Bank agrees to make
Swing Loans (the "Swing Loans") to the Borrower at any time or from time to time
after the date hereof to, but not including, the Expiration Date, in an
aggregate principal amount of up to but not in excess of $50,000,000 (the "Swing
Loan Commitment"), PROVIDED that the Revolving Facility Usage at any time, shall
not exceed the Revolving Credit Commitments of all the Banks. Within such limits
of time and amount and subject to the other provisions of this Agreement, the
Borrower may borrow, repay and reborrow pursuant to this Section 2.1.2.
2.2 NATURE OF BANKS' OBLIGATIONS WITH RESPECT TO REVOLVING
CREDIT LOANS.
Each Bank shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.4 [Loan Requests] in accordance
with its Revolving Credit Ratable Share. Subject to Section 2.9.1 with respect
to taking into account outstanding Bid Loans, the aggregate of each Bank's
Revolving Credit Loans outstanding hereunder to the Borrower at any time shall
never exceed its Revolving Credit Commitment minus its Revolving Credit Ratable
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Share of the Letters of Credit Outstanding. The obligations of each Bank
hereunder are several. The failure of any Bank to perform its obligations
hereunder shall not affect the Obligations of the Borrower to any other party
nor shall any other party be liable for the failure of such Bank to perform its
obligations hereunder. The Banks shall have no obligation to make Revolving
Credit Loans hereunder on or after the Expiration Date.
2.3 REVOLVING CREDIT FACILITY FEE.
Accruing from the date hereof until the Expiration Date, the
Borrower agrees to pay to the Administrative Agent for the account of each Bank,
as consideration for such Bank's Revolving Credit Commitment hereunder, a
nonrefundable facility fee (the "Facility Fee") equal to the Applicable Facility
Fee Rate computed (on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed) on the amount of such Bank's Revolving Credit
Commitment as the same may be constituted from time to time. All Facility Fees
shall be payable in arrears on the first Business Day of each July, October,
January and April after the date hereof and on the Expiration Date or upon
acceleration of the Loans.
2.4 LOAN REQUESTS.
2.4.1 COMMITTED LOAN REQUESTS.
Except as otherwise provided herein, the Borrower may from
time to time prior to the Expiration Date request the Banks to make Revolving
Credit Loans, or renew or convert the Interest Rate Option applicable to
existing Revolving Credit Loans or 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
making of Revolving Credit Loans to which the Euro-Rate Option applies or the
conversion to or the renewal of the Euro-Rate Option for any Revolving Credit
Loans or Term Loans; and (ii) one (1) Business Day prior to either the proposed
Borrowing Date with respect to the making of the Term Loans on the Closing Date
or the making of a Revolving Credit Loan to which the Base Rate Option applies
or the last day of the preceding Committed Loan Interest Period with respect to
the conversion to the Base Rate Option for any Revolving Credit Loan or Term
Loan, of a duly completed Committed Loan Request therefor substantially in the
form of EXHIBIT 2.4.1 or a Committed Loan Request 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 Committed Loan Request shall be irrevocable
and shall specify (i) the proposed Borrowing Date; (ii) the aggregate amount of
the proposed Revolving Credit Loans and Term Loans comprising each Borrowing
Tranche, which shall be in integral multiples of $5,000,000 and not less than
$10,000,000 for each Borrowing Tranche to which the Revolving Credit Euro-Rate
Option or Term Loan Euro-Rate Option, as the case may be, applies and in
integral multiples of $1,000,000 and not less than the lesser of $5,000,000 or
the maximum amount available for Borrowing Tranches to which the Base Rate
Option applies; (iii) whether the Revolving Credit Euro-Rate Option or Revolving
Credit Base Rate Option shall apply to the proposed Revolving Credit Loans
comprising an applicable Borrowing Tranche; and
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(iv) in the case of a Borrowing Tranche to which the applicable Euro-Rate Option
applies, an appropriate Committed Loan Interest Period for the Loans comprising
such Borrowing Tranche.
2.4.2 SWING LOAN REQUESTS.
Except as otherwise provided herein, the Borrower may from
time to time prior to the Expiration Date request PNC Bank to make a Swing Loan
by delivery to PNC Bank, not later than 12:00 noon Pittsburgh time, on the
proposed Borrowing Date of a duly completed request therefor substantially in
the form of EXHIBIT 2.4.2 hereto or a request by telephone immediately confirmed
in writing by letter, facsimile or telex (each, a "Swing Loan Request"), it
being understood that PNC Bank may rely on the authority of any individual
making such a telephonic request without the necessity of receipt of such
written confirmation. Each Swing Loan Request shall be irrevocable and shall
specify (i) the proposed Borrowing Date, (ii) the term of the proposed Swing
Loan, which shall be no less than one day and no longer than three days, and
(iii) the principal amount of such Swing Loan, which shall be not less than
$1,000,000 and shall be an integral multiple of $100,000.
2.5 MAKING REVOLVING CREDIT LOANS AND SWING LOANS.
The Administrative Agent shall, promptly after receipt by it of a
Loan Request pursuant to Section 2.4.1 [Committed Loan Requests], notify the
Banks of its receipt of such Loan Request specifying: (i) the proposed Borrowing
Date and the time and method of disbursement of the Revolving Credit Loans
requested thereby; (ii) the amount and type of each such Revolving Credit Loan
and the applicable Interest Period (if any); and (iii) the apportionment among
the Banks of such Revolving Credit Loans as determined by the Administrative
Agent in accordance with Section 2.2 [Nature of Banks' Obligations, etc.]. Each
Bank shall remit the principal amount of each Revolving Credit Loan to the
Administrative Agent such that the Administrative Agent is able to, and the
Administrative Agent shall, to the extent the Banks have made funds available to
it for such purpose and subject to Section 6.2 [Each Additional Loan or Letter
of Credit], fund such Revolving Credit Loans to the Borrower in U.S. Dollars and
immediately available funds at the Principal Office prior to 2:00 p.m.,
Pittsburgh time, on the applicable Borrowing Date, PROVIDED that if any Bank
fails to remit such funds to the Administrative Agent in a timely manner, the
Administrative Agent may elect in its sole discretion to fund with its own funds
the Revolving Credit Loans of such Bank on such Borrowing Date, and such Bank
shall be subject to the repayment obligation in Section 9.16 [Availability of
Funds].
2.5.1 MAKING SWING LOANS.
PNC Bank shall, after receipt by it of a Swing Loan Request
pursuant to Section 2.4.2, fund such Swing Loan to the Borrower in U.S. Dollars
and immediately available funds at the Principal Office prior to 3:00 p.m.,
Pittsburgh time, on the Borrowing Date. Swing Loans shall bear interest at the
Offered Rate Option.
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2.6 SWING LOAN NOTE.
The obligation of the Borrower to repay the unpaid principal amount
of the Swing Loans made to it by PNC Bank together with interest thereon shall
be evidenced by a demand promissory note of the Borrower dated the Closing Date
in substantially the form attached hereto as EXHIBIT 1.1(S) payable to the order
of PNC Bank in a face amount equal to the Swing Loan Commitment of PNC Bank.
2.7 USE OF PROCEEDS.
The proceeds of the Loans shall be used to finance the Acquisition
Transactions, to refinance the Existing Credit Facility, for general corporate
purposes and in accordance with Section 7.1.9 [Use of Proceeds]. Subject to
Section 7.2.14 (v), proceeds of Loans may be used by the Borrower to make loans
to or investments in Arch Western and Letters of Credit may be issued for the
benefit or the use of any member of the Arch Western Group.
2.8 BORROWINGS TO REPAY SWING LOANS.
PNC Bank may, at its option, exercisable at any time for any reason
whatsoever, demand repayment of the Swing Loans, and each Bank shall make
available to the Administrative Agent, on behalf of PNC Bank, an amount equal to
such Bank's Revolving Credit Ratable Share of the aggregate principal amount of
the outstanding Swing Loans, plus, if PNC Bank so requests, accrued interest
thereon, PROVIDED that no Bank shall be obligated in any event to make Revolving
Credit Loans in excess of its Revolving Credit Commitment minus its Revolving
Credit Ratable Share of the Letters of Credit Outstanding. Revolving Credit
Loans made pursuant to the preceding sentence shall bear interest at the Base
Rate Option and shall be deemed to have been properly requested in accordance
with Section 2.4.1 without regard to any of the requirements of that provision.
PNC Bank shall provide notice to all of the Banks (which may be telephonic or
written notice by letter, facsimile or telex) of the amount of such Bank's
Revolving Credit Ratable Share of the aggregate principal amount of the
outstanding Swing Loans, plus accrued interest thereon, to be made available to
the Administrative Agent on behalf of PNC Bank under this Section 2.8. The
Administrative Agent shall promptly provide to each Bank notice of the
apportionment thereof among the Banks, and the Banks shall be unconditionally
obligated to fund such amount (whether or not the conditions specified in
Section 2.4.1 are then satisfied) by the time PNC Bank so requests, which shall
not be earlier than 3:00 p.m., Pittsburgh time, on the Business Day next after
the date the Banks receive such notice of apportionment from the Administrative
Agent.
2.9 BID LOAN FACILITY.
2.9.1 BID LOAN REQUESTS.
Except as otherwise provided herein, beginning on the date
that the Borrower's senior unsecured long-term debt, on a consolidated basis,
has been rated Investment Grade and during any period thereafter when the
Borrower's senior unsecured long-term debt, on a consolidated basis, is rated
BBB- or better by Standard & Poor's or Baa3 or better by ▇▇▇▇▇'▇,
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the Borrower may from time to time prior to the Expiration Date request that the
Banks make Bid Loans by delivery to the Administrative Agent not later than
10:00 a.m., Pittsburgh time, of a duly completed request therefor substantially
in the form of EXHIBIT 2.9.1 hereto or a request by telephone immediately
confirmed in writing by letter, facsimile or telex (each, a "Bid Loan Request")
at least one (1) Business Day prior to the proposed Bid Loan Borrowing Date if
Borrower is requesting Fixed Rate Bid Loans and four (4) Business Days prior to
the proposed Bid Loan Borrowing Date if Borrower is requesting Euro-Rate Bid
Loans. The Administrative Agent may rely on the authority of any individual
making a telephonic request referred to in the preceding sentence without the
necessity of receipt of written confirmation. Each Bid Loan Request shall be
irrevocable and shall specify (i) the proposed Bid Loan Borrowing Date, (ii)
whether Borrower is electing the Bid Loan Fixed Rate Option or the Bid Loan
Euro-Rate Option, (iii) the term of the proposed Bid Loan (the "Bid Loan
Interest Period"), which may be no less than 7 days and no longer than 270 days
if Borrower is requesting a Fixed Rate Bid Loan and one, two, three or six
Months if Borrower is requesting a Euro-Rate Bid Loan, and (iv) the maximum
principal amount (the "Requested Amount") of such Bid Loan (provided that a Bid
Loan Interest Period shall in no event expire later than one (1) Business Days
prior to the Expiration Date), which shall be not less than $10,000,000 and
shall be an integral multiple of $5,000,000. After giving effect to such Bid
Loan and any other Loan made on or before the Bid Loan Borrowing Date, the
aggregate amount of all Revolving Credit Loans, Swing Loans and Bid Loans
outstanding plus the Letters of Credit Outstanding shall not exceed the
aggregate amount of the Revolving Credit Commitments of the Banks. There shall
be at least one Business Day between each Bid Loan Borrowing Date. There shall
be no requests for Bid Loans nor any Bid Loans made until the Business Day
following the Syndication Date.
2.9.2 BIDDING.
The Administrative Agent shall promptly after receipt by it of
a Bid Loan Request pursuant to Section 2.9.1 notify the Banks of its receipt of
such Bid Loan Request specifying (i) the proposed Bid Loan Borrowing Date, (ii)
whether the proposed Bid Loan shall be a Fixed Rate Bid Loan or a Euro-Rate Bid
Loan, (iii) the Bid Loan Interest Period and (iv) the principal amount of the
proposed Bid Loan. Each Bank may submit a bid (a "Bid") to the Administrative
Agent not later than 10:00 a.m., Pittsburgh time, on the proposed Bid Loan
Borrowing Date if Borrower is requesting a Fixed Rate Bid Loan or three (3)
Business Days before the proposed Bid Loan Borrowing Date if Borrower is
requesting a Euro-Rate Bid Loan by telephone (immediately confirmed in writing
by letter, facsimile or telex). Each Bid shall specify: (A) the principal amount
of proposed Bid Loans offered by such Bank (the "Offered Amount") (such Bid
Loans may be funded by such Bank's Designated Lender as provided in Section
2.9.4; however, such Bank shall not be required to specify in its Bid whether
such Bid Loans will be funded by such Designated Lender) which (i) may be less
than, but shall not exceed, the Requested Amount, (ii) shall be at least
$10,000,000 and shall be an integral multiple of $5,000,000 and (iii) may exceed
such Bank's Revolving Credit Commitment, and (B) the Fixed Rate which shall
apply to such proposed Bid Loan if Borrower has requested a Fixed Rate Bid Loan
or the Euro-Rate Bid Loan Spread which shall apply to such proposed Bid Loan if
Borrower has requested a Euro-Rate Bid Loan. If any Bid omits information
required hereunder, the Administrative Agent may in its sole discretion attempt
to notify the Bank submitting such
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Bid. If the Administrative Agent so notifies a Bank, such Bank may resubmit its
Bid provided that it does so prior to time set forth in this Section 2.9.2 above
by which such Bank is required to submit its Bid to the Administrative Agent.
The Administrative Agent shall promptly notify the Borrower of the Bids which it
timely received from the Banks. If the Administrative Agent in its capacity as a
Bank shall, in its sole discretion, make a Bid, it shall notify the Borrower of
such Bid before 9:00 a.m., Pittsburgh time, on the proposed Bid Loan Borrowing
Date if Borrower is requesting a Fixed Rate Bid Loan and three (3) Business Days
before the proposed Borrowing Date if Borrower is requesting a Euro-Rate Bid
Loan.
2.9.3 ACCEPTING BIDS.
The Borrower shall irrevocably accept or reject Bids by
notifying the Administrative Agent of such acceptance or rejection by telephone
(immediately confirmed in writing by letter, facsimile or telex) not later than
11:00 a.m., Pittsburgh time, on the proposed Bid Loan Borrowing Date if Borrower
is requesting a Fixed Rate Bid Loan and three (3) Business Days before the
proposed Borrowing Date if Borrower is requesting a Euro-Rate Bid Loan. If the
Borrower elects to accept any Bids, its acceptance must meet the following
conditions: (1) the total amount which Borrower accepts from all Banks must not
be less than $10,000,000 and be in integral multiples of $5,000,000 and may not
exceed the aggregate Requested Amount; (2) the Borrower must accept Bids based
solely on the amount of the Fixed Rates or Euro-Rate Bid Loan Spreads, as the
case may be, which each of the Banks quoted in their Bids in ascending order of
the amount of Fixed Rates or Euro-Rate Bid Loan Spreads; (3) the Borrower may
not borrow Bid Loans from any Bank (or such Bank's Designated Lender) on the Bid
Loan Borrowing Date in an amount exceeding such Bank's Offered Amount; (4) if
two or more Lenders make Bids at the same Fixed Rate (if Borrower Requested a
Fixed Rate Bid Loan) or Euro-Rate Bid Loan Spread (if Borrower Requested a
Euro-Rate Bid Loan) and the Borrower desires to accept a portion but not all of
the Bids at such Fixed Rate or Euro-Rate Bid Loan Spread, as the case may be,
the Borrower shall accept a portion of each Bid equal to the product of the
Offered Amount of such Bid times the fraction obtained by dividing the total
amount of Bids which Borrower is accepting at such Fixed Rate or Euro-Rate Bid
Loan Spread, as the case may be, by the sum of the Offered Amounts of the Bids
at such Fixed Rate or Euro-Rate Bid Loan Spread, PROVIDED that the Borrower
shall round the Bid Loans allocated to each such Lender upward or downward as
the Borrower may select to integral multiples of $5,000,000. The Administrative
Agent shall (i) promptly notify a Bank that has made a Bid of the amount of its
Bid that was accepted or rejected by the Borrower and (ii) as promptly as
practical notify all of the Banks which submitted Bids of all Bids submitted and
those which have been accepted.
2.9.4 FUNDING BID LOANS.
Each Bank whose Bid or portion thereof is accepted shall, or
at its option shall cause its Designated Lender to, remit the principal amount
of its Bid Loan to the Administrative Agent by 12:00 noon, Pittsburgh time, on
the Borrowing Date. The Administrative Agent shall make such funds available to
the Borrower on or before 1:00 p.m., Pittsburgh time, on the Borrowing Date
PROVIDED that the conditions precedent to the making of
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such Bid Loan set forth in Section 6.2 [Each Additional Loan or Letter of
Credit] have been satisfied not later than 10:00 a.m., Pittsburgh time, on the
proposed Borrowing Date. If such conditions precedent have not been satisfied
prior to such time, then (i) the Administrative Agent shall not make such funds
available to the Borrower, (ii) the Bid Loan Request shall be deemed to be
canceled, and (iii) the Administrative Agent shall return the amount previously
funded to the Administrative Agent by each applicable Lender no later than the
next following Business Day. The Borrower shall immediately notify the
Administrative Agent of any failure to satisfy the conditions precedent to the
making of Bid Loans under Section 6.2. The Administrative Agent may assume that
Borrower has satisfied such conditions precedent if (i) the Borrower has
delivered to the Administrative Agent the documents required to be delivered
under Section 6.2, (ii) the Borrower has not notified the Administrative Agent
that the Loan Parties have not satisfied any other conditions precedent, and
(iii) the Administrative Agent has no actual notice of such a failure. Any
Designated Lender which funds a Bid Loan shall on and after the time of such
funding become the obligee under such Bid Loan and be entitled to receive
payment thereof when due. A Bank shall be relieved of its obligation to fund a
Bid Loan upon the funding of such Bid Loan by its Designated Lender and not
prior to such time.
2.9.5 SEVERAL OBLIGATIONS.
The obligations of the Banks to make Bid Loans after their
Bids have been accepted are several. No Bank shall be responsible for the
failure of any other Lender to make any Bid Loan which another Lender has agreed
to make.
2.9.6 BID NOTES.
The obligation of the Borrower to repay the aggregate unpaid
principal amount of the Bid Loans made to it by each Bank or its Designated
Lender, as the case may be, together with interest thereon, shall be evidenced
by a Bid Note dated as of the Closing Date payable to the order of such Bank and
a Bid Note dated as of the date of the applicable Designation Agreement in favor
of the Designated Lender named in such Designation Agreement in a face amount
equal to the aggregate Revolving Credit Commitments of all of the Banks.
2.9.7 PAYMENTS AND PREPAYMENTS.
The Borrower shall repay each Bid Loan on the last day of the
Interest Period with respect to such Bid Loan. The Borrower may not voluntarily
prepay the Bid Loans.
2.10 LETTER OF CREDIT SUBFACILITY.
2.10.1 ISSUANCE OF LETTERS OF CREDIT.
Borrower may request the issuance of a letter of credit (each
a "Letter of Credit") on behalf of itself or another Loan Party by delivering to
the Issuing Bank selected by the Borrower (with a copy to the Administrative
Agent) a completed application and agreement for letters of credit in such form
as such Issuing Bank may specify from time to time by no later
- 36 -
than 10:00 a.m., Pittsburgh time, at least three (3) Business Days, or such
shorter period as may be agreed to by the selected Issuing Bank, in advance of
the proposed date of issuance. Each Letter of Credit shall be either a Standby
Letter of Credit or a Commercial Letter of Credit. Subject to the terms and
conditions hereof and in reliance on the agreements of the other Banks set forth
in this Section 2.10, the Issuing Bank will issue a Letter of Credit PROVIDED
that each Letter of Credit shall (A) have a maximum maturity of twelve (12)
Months from the date of issuance, and (B) in no event expire later than ten (10)
Business Days prior to the Expiration Date and PROVIDED that in no event shall
(i) the Letters of Credit Outstanding exceed, at any one time, $150,000,000 or
(ii) the Revolving Facility Usage exceed, at any one time, the Revolving Credit
Commitments. Subject to Section 7.2.14(v), Letters of Credit may be issued for
the benefit or the use of, directly or indirectly, any member of the Arch
Western Group. No Letters of Credit shall be issued for the benefit or the use
of, directly or indirectly, any Significant Subsidiary which is a member of the
Arch Coal Group which is not a party to the Guaranty Agreement until such time
as such Significant Subsidiary has joined the Guaranty Agreement in accordance
with Section 10.18 [Joinder of Guarantors].
2.10.2 LETTER OF CREDIT FEES.
Subject to the terms and conditions of this Agreement, any
Issuing Bank selected by the Borrower shall issue the requested Letter of
Credit. The Borrower shall also pay to the Issuing Bank for the Issuing Bank's
sole account the Issuing Bank's then-in-effect customary fees and administrative
expenses payable with respect to the Letters of Credit as the Issuing Bank may
generally charge or incur from time to time in connection with the issuance,
maintenance, modification (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit. The Borrower shall pay to
the Administrative Agent for the ratable account of the Banks a fee (the "Letter
of Credit Fee") equal to the Applicable Letter of Credit Fee Rate then in effect
(computed on the basis of a year of 360 days and actual days elapsed), which fee
shall be computed on the daily average Letters of Credit Outstanding and shall
be payable quarterly in arrears commencing with the first Business Day of each
January, April, July and October following issuance of each Letter of Credit and
on the Expiration Date.
2.10.3 PARTICIPATIONS IN LETTERS OF CREDIT; DISBURSEMENTS,
REIMBURSEMENT.
2.10.3.1 Immediately upon issuance of each Letter of
Credit, and without further action, each Bank shall be deemed to, and hereby
agrees that it shall, have irrevocably purchased, for such Bank's own account
and risk, from the applicable Issuing Bank an individual participation interest
in such Letter of Credit in an amount equal to such Bank's Revolving Credit
Ratable Share of the maximum amount which is or at any time may become available
to be drawn thereunder, and each Bank shall be responsible to reimburse such
Issuing Bank immediately for its Revolving Credit Ratable Share of any
disbursement under any Letter of Credit which has not been reimbursed by
Borrower in accordance with Section 2.10.3.2 by making its Revolving Credit
Ratable Share of the Revolving Credit Loans referred to in Section 2.10.3.3
available to the Administrative Agent for the account of the Issuing Bank. Upon
the
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request of any Bank and no less frequently than once in each calendar month,
the Administrative Agent shall notify each Bank of the amount of such Bank's
participation in Letters of Credit.
2.10.3.2 In the event of any request for a drawing
under a Letter of Credit by the beneficiary or transferee thereof, the Issuing
Bank will promptly notify the Borrower and the Administrative Agent. Provided
that it shall have received such notice, the Borrower shall reimburse (such
obligation to reimburse the Issuing Bank shall sometimes be referred to as a
"Reimbursement Obligation") the Administrative Agent on behalf of the Issuing
Bank prior to 12:00 noon, Pittsburgh time, on each date that an amount is paid
by the Issuing Bank under any Letter of Credit (each such date, a "Drawing
Date") in an amount equal to the amount so paid by the Issuing Bank. In the
event the Borrower fails to reimburse the Administrative Agent on behalf of the
Issuing Bank for the full amount of any drawing under any Letter of Credit by
12:00 noon, Pittsburgh time, on the Drawing Date, the Issuing Bank will promptly
notify the Administrative Agent and each Bank thereof, and the Borrower shall be
deemed to have requested that Revolving Credit Loans be made by the Banks under
the Revolving Credit Base Rate Option to be disbursed on the Drawing Date under
such Letter of Credit. Any notice given by the Administrative Agent or the
Issuing Bank pursuant to this Section 2.10.3.2 may be oral if immediately
confirmed in writing; PROVIDED that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
2.10.3.3 Each Bank shall upon any notice pursuant to
Section 2.10.3.2 make available to the Administrative Agent, on behalf of the
Issuing Bank, an amount in immediately available funds equal to its Revolving
Credit Ratable Share of the amount of the drawing, whereupon the participating
Banks shall each be deemed to have made a Revolving Credit Loan under the
Revolving Credit Base Rate Option to the Borrower in that amount. If any Bank so
notified fails to make available to the Administrative Agent for the account of
the Issuing Bank the amount of such Bank's Revolving Credit Ratable Share of
such amount by no later than 2:00 p.m., Pittsburgh time, on the Drawing Date,
then interest shall accrue on such Bank's obligation to make such payment from
the Drawing Date to the date on which such Bank makes such payment (i) at a rate
per annum equal to the Federal Funds Effective Rate during the first three days
following the Drawing Date and (ii) at a rate per annum equal to the rate
applicable to Revolving Credit Loans under the Revolving Credit Base Rate Option
on and after the fourth day following the Drawing Date; PROVIDED, however, that
in the event that a Bank does not timely receive notice in order to so fund its
Revolving Credit Ratable Share to the Administrative Agent prior to 2:00 p.m.,
Pittsburgh time, on the Drawing Date, interest, with respect to the Drawing Date
only, shall not accrue as previously described in this sentence. The Issuing
Bank will promptly give notice to the Administrative Agent and each other Bank
of the occurrence of the Drawing Date, but failure of the Issuing Bank to give
any such notice on the Drawing Date or in sufficient time to enable any Bank to
effect such payment on such date shall not relieve such Bank from its obligation
under this Section 2.10.3.3.
2.10.4 [INTENTIONALLY OMITTED]
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2.10.5 DOCUMENTATION.
Each Loan Party agrees to be bound by the terms of the
selected Issuing Bank's application and agreement for letters of credit and the
Issuing Bank's written regulations and customary practices relating to letters
of credit, though such interpretation may be different from such Loan Party's
own. In the event of a conflict between such application or agreement and this
Agreement, this Agreement shall govern. It is understood and agreed that, except
in the case of gross negligence or willful misconduct, neither the Agents nor
any Issuing Bank shall be liable for any error, negligence and/or mistakes,
whether of omission or commission, in following any Loan Party's instructions or
those contained in the Letters of Credit or any modifications, amendments or
supplements thereto.
2.10.6 DETERMINATIONS TO HONOR DRAWING REQUESTS.
In determining whether to honor any request for drawing under
any Letter of Credit by the beneficiary thereof, the Issuing Bank shall be
responsible only to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they comply
on their face with the requirements of such Letter of Credit.
2.10.7 NATURE OF PARTICIPATION AND REIMBURSEMENT
OBLIGATIONS.
Each Bank's obligation in accordance with this Agreement to
participate in Letters of Credit and make the Revolving Credit Loans, as
contemplated by Section 2.10.3 [Participations in Letters of Credit;
Disbursements, Reimbursement], as a result of a drawing under a Letter of
Credit, and the Obligations of the Borrower to reimburse the Issuing Bank upon a
draw under a Letter of Credit, shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Section
2.10.7 under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense
or other right which such Bank may have against any Issuing Bank, either Agent,
the Borrower or any other Person for any reason whatsoever;
(ii) the failure of any Loan Party or any other
Person to comply with the conditions set forth in Sections 2.1 [Revolving Credit
Commitments], 2.4 [Loan Requests], 2.5 [Making Revolving Credit Loans and Swing
Loans] or 6.2 [Each Additional Loan or Letter of Credit] or as otherwise set
forth in this Agreement for the making of a Revolving Credit Loan, it being
acknowledged that such conditions are not required for the making of a Revolving
Credit Loan under Section 2.10.3 [Participations in Letters of Credit;
Disbursements; Reimbursement];
(iii) any lack of validity or enforceability of any
Letter of Credit;
(iv) the existence of any claim, set-off, defense or
other right which any Loan Party or any Bank may have at any time against a
beneficiary or any
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transferee of any Letter of Credit (or any Persons for whom any such transferee
may be acting), either Agent, any Issuing Bank, or any Bank or any other Person
or, whether in connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying transaction
between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for
which any Letter of Credit was procured);
(v) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect even if the Issuing Bank has been notified thereof;
(vi) payment by any Issuing Bank under any Letter
of Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit;
(vii) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of any Loan Party or Subsidiaries of a Loan Party;
(viii) any breach of this Agreement or any other
Loan Document by any party thereto;
(ix) the occurrence or continuance of an
Insolvency Proceeding with respect to any Loan Party;
(x) the fact that an Event of Default or a
Potential Default shall have occurred and be continuing;
(xi) the fact that the Expiration Date shall have
passed or this Agreement or the Commitments hereunder shall have been
terminated; and
(xii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
2.10.8 INDEMNITY.
In addition to amounts payable as provided in Section 9.5
[Reimbursement and Indemnification of Agents by the Borrower], the Borrower
hereby agrees to protect, indemnify, pay and save harmless the Agents and each
Issuing Bank from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel) which any Agent or any Issuing Bank may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit, other than as a result of (A) the gross negligence or willful
misconduct of any Agent or any Issuing Bank as determined by a final judgment of
a court of competent jurisdiction or (B) subject to the following clause (ii),
the wrongful dishonor by an Issuing Bank of a proper demand for payment made
under any Letter of Credit, or (ii) the failure of an Issuing Bank to honor a
drawing under
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any such Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "Governmental
Acts").
2.10.9 LIABILITY FOR ACTS AND OMISSIONS.
As between any Loan Party, each Issuing Bank and the Agents,
such Loan Party assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither any Agent nor any
Issuing Bank shall be responsible for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for an issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged (even if the Issuing Bank shall
have been notified thereof); (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) the
failure of the beneficiary of any such Letter of Credit, or any other party to
which such Letter of Credit may be transferred, to comply fully with any
conditions required in order to draw upon such Letter of Credit or any other
claim of any Loan Party against any beneficiary of such Letter of Credit, or any
such transferee, or any dispute between or among any Loan Party and any
beneficiary of any Letter of Credit or any such transferee; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of any Issuing Bank or any Agent, including any
Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any of the Agents' rights or powers hereunder or of any of the
rights or powers hereunder of any Issuing Bank. Nothing in the preceding
sentence shall: (x) relieve any Agent from liability for such Agent's gross
negligence or willful misconduct in connection with actions or omissions
described in such clauses (i) through (viii) of such sentence, or (y) relieve
any Issuing Bank from liability for such Issuing Bank's gross negligence or
willful misconduct in connection with actions or omissions described in such
clauses (i) through (viii) of such sentence.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by any Agent or
any Issuing Bank under or in connection with the Letters of Credit issued by it
or any documents and certificates delivered thereunder, if taken or omitted in
good faith, shall not put any Agent or any Issuing Bank under any resulting
liability to the Borrower or any other Bank.
2.11 [INTENTIONALLY OMITTED].
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2.12 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.
2.13 NATURE OF BANKS' OBLIGATIONS WITH RESPECT TO TERM LOANS.
The obligations of each Bank to make Term Loans 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 under Section 2.12 [Term Loan Commitments].
2.14 TERM LOAN NOTES.
The Obligation of the Borrower to repay the unpaid principal amount
of the Term Loans 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
as provided therein of the Term Notes shall be payable quarterly in arrears in
installments of $15,000,000 each on the first day of each January, April, July
and October after the Closing Date, commencing October 1, 1998 and the entire
outstanding principal amount of the Term Notes shall be due and payable on the
Term Loan Expiration Date.
2.15 USE OF PROCEEDS.
The proceeds of the Term Loans shall be used to finance the
Acquisition Transaction, to refinance the Existing Credit Facility, for general
corporate purposes and in accordance with Section 7.1.9 [Use of Proceeds].
3. INTEREST RATES
3.1 INTEREST RATE OPTIONS.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Revolving Credit Loans and Term Loans as selected by it
from the Base Rate Option, Revolving Credit Euro-Rate Option or Term Loan
Euro-Rate Option set forth below applicable to the Revolving Credit Loans or
Term Loans, it being understood that, subject to the provisions of this
Agreement, the Borrower may select different Interest Rate Options and different
Interest Periods to apply simultaneously to the Revolving Credit Loans and Term
Loans
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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 Revolving Credit
Loans or Term Loans comprising any Borrowing Tranche, PROVIDED that there shall
not be at any one time outstanding more than nine (9) Borrowing Tranches in the
aggregate among all of the Revolving Credit Loans and Term Loans accruing
interest at a Revolving Credit Euro-Rate Option or Term Loan Euro-Rate Option,
and PROVIDED further that only the Offered Rate Option shall apply to the Swing
Loans. The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of each Bid Loan at the rate specified in the related Bid
accepted by the Borrower with respect to which a Bid Loan is made. If at any
time the designated rate applicable to any Loan exceeds such Lender's highest
lawful rate, the rate of interest on such Loan shall be limited to such Lender's
highest lawful rate.
3.1.1 INTEREST RATE OPTIONS.
(a) The Borrower shall have the right to select from the
following Interest Rate Options applicable to the Revolving Credit Loans
(subject to the provisions above regarding Swing Loans):
(i) REVOLVING CREDIT BASE RATE OPTION: A fluctuating
rate per annum (computed on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed) equal to the Base Rate, 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) REVOLVING CREDIT 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.
(b) The Borrower shall have the right to select from the
following Interest Rate Options applicable to the Term Loans:
(i) TERM LOAN 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, 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) TERM LOAN 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, 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 in the pricing grid under Level IV of PART (A) of SCHEDULE 1.1(A). It is
expressly agreed that after the Initial Delivery Date until such time as the
Borrower'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
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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 Committed Loan Request is to be delivered to receive an
indication of the rates then in effect as to Revolving Credit Loans or 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 or Applicable Facility Fee Rate is
increased or reduced with respect to any period for which the Borrower has
already paid interest or Facility Fees, the Administrative Agent shall
recalculate the additional interest or Facility Fees due from or to the Borrower
and shall, within fifteen (15) Business Days after 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 or Facility Fees 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 Loans outstanding or if the Loans are due and
payable, such additional interest or Facility Fees shall be paid promptly after
receipt of written request for payment from the Administrative Agent.
3.1.3.2 Any interest or Facility Fees 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 Loans have been repaid
and the Banks are no longer committed to lend under this Agreement, the Banks
shall pay the Administrative Agent for the account of the Borrower such interest
or Facility Fee 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
Revolving Credit Euro-Rate Option or Term Loan 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 Loan
Request. The notice shall specify an interest period (the "Committed Loan
Interest Period") during which such Interest Rate Option shall apply, such
Committed Loan 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 Borrower
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 Revolving Credit Euro-Rate
Option or Term Loan Euro-Rate Option:
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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 Revolving Credit Loans or Term Loans
to which the Revolving Credit Euro-Rate Option or Term Loan Euro-Rate Option
applies shall be in integral multiples of $5,000,000 and not less than
$10,000,000;
3.2.3 TERMINATION BEFORE APPLICABLE EXPIRATION DATE.
the Borrower shall not select, convert to or renew an Interest
Period for any portion of the Loans that would end, in the case of Revolving
Credit Loans or Bid Loans after the Expiration Date, or in the case of Term
Loans, after the Term Loan Expiration Date; and
3.2.4 RENEWALS.
in the case of the renewal of a Revolving Credit Euro-Rate
Option or Term Loan 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 LETTER OF CREDIT FEES, INTEREST RATE.
the Letter of Credit Fees and the rate of interest for each
Loan otherwise applicable pursuant to Section 2.10.2 [Letter of Credit Fees] or
Section 3.1 [Interest Rate Options], respectively, 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.
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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 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 Loan may be made,
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 Committed Loans or Bid 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.
3.4.2 ILLEGALITY; INCREASED COSTS; DEPOSITS NOT AVAILABLE.
If at any time any Lender shall have determined that:
(i) the making, maintenance or funding of any Loan
to which a Euro-Rate Option applies has been made impracticable or unlawful by
compliance by such Lender in good faith with any Law or any interpretation or
application thereof by any Official Body or with any request or directive of any
such Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and
fairly reflect the cost to such Lender of the establishment or maintenance of
any such Loan, or
(iii) after making all reasonable efforts, deposits
of the relevant amount in Dollars for the relevant Interest Period for a Loan to
which a Euro-Rate Option applies are not available to such Lender with respect
to such Loan, in the London interbank market,
then the Administrative Agent and the Lenders shall have the rights specified in
Section 3.4.3.
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3.4.3 ADMINISTRATIVE AGENT'S AND LENDER'S RIGHTS.
In the case of any event specified in Section 3.4.1 above, the
Administrative Agent shall promptly so notify the Lenders and the Borrower
thereof, and in the case of an event specified in Section 3.4.2 above, such
Lender shall promptly so notify the Administrative Agent and endorse a
certificate to such notice as to the specific circumstances of such notice, and
the Administrative Agent shall promptly send copies of such notice and
certificate to the other Lenders and the Borrower. Upon such date as shall be
specified in such notice (which shall not be earlier than the date such notice
is given), the obligation of (A) the Lenders, in the case of such notice given
by the Administrative Agent, or (B) such Lender, in the case of such notice
given by such Lender, to allow the Borrower to select, convert to or renew a
Euro-Rate Option shall be suspended until the Administrative Agent shall have
later notified the Borrower, or such Lender shall have later notified the
Administrative Agent, of the Administrative Agent's or such Lender's, as the
case may be, determination that the circumstances giving rise to such previous
determination no longer exist. 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 termination of Borrower's
Bid Loan Request (without penalty) for such Loans if the Borrower has requested
Bid Loans under the Bid Loan Euro-Rate Option and 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 Revolving Credit Loans or
Term Loans if the Borrower has requested the Euro-Rate Option with respect to
such Revolving Credit Loans or Term Loans. If any Lender 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 Loan of the Lender to which a Euro-Rate Option applies,
on the date specified in such notice either convert such Loan to the Base Rate
Option otherwise available with respect to such Loan or prepay such Loan in
accordance with Section 4.4.1 [Voluntary Prepayments]. Absent due notice from
the Borrower of conversion or prepayment, such Loan shall automatically be
converted to the Base Rate Option otherwise available with respect to such Loan
upon such specified date.
3.5 SELECTION OF INTEREST RATE OPTIONS.
If the Borrower fails to select a new Interest Period to apply to
any Borrowing Tranche of Revolving Credit Loans under the Revolving Credit
Euro-Rate Option or of Term Loans under the Term Loan 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
Revolving Credit Base Rate Option in the case of Revolving Credit Loans or Term
Loan Base Rate Option in the case of Term Loans commencing upon the last day of
the existing Interest Period.
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4. PAYMENTS
4.1 PAYMENTS.
All payments and prepayments to be made in respect of principal,
interest, Facility Fees, Letter of Credit Fees, Administrative Agent's Fee or
other fees or amounts due from the Borrower hereunder shall be payable prior to
11:00 a.m., Pittsburgh time, on the date when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by the
Borrower, and without set-off, counterclaim or other deduction of any nature,
and an action therefor shall immediately accrue. Such payments shall be made to
the Administrative Agent at the Principal Office for the account of PNC Bank
with respect to the Swing Loans and for the ratable accounts of the Banks with
respect to the Revolving Credit Loans and Term Loans and for the account of the
lending Lender with respect to the Bid Loans, in U.S. Dollars and in immediately
available funds, and the Administrative Agent shall promptly distribute such
amounts to the applicable Lenders in immediately available funds, PROVIDED that
in the event payments are received by 11:00 a.m., Pittsburgh time, by the
Administrative Agent with respect to the Loans and such payments are not
distributed to the Lenders (or applicable Lender, as the case may be) on the
same day received by the Administrative Agent, the Administrative Agent shall
pay the Lenders (or applicable Lender, as the case may be) the Federal Funds
Effective Rate with respect to the amount of such payments for each day held by
the Administrative Agent and not distributed to the Lenders (or applicable
Lender, as the case may be). The Administrative Agent's and each Lender's
statement of account, ledger or other relevant record shall, in the absence of
manifest error, be conclusive as the statement of the amount of principal of and
interest on the Loans and other amounts owing under this Agreement and shall be
deemed an "account stated."
4.2 PRO RATA TREATMENT OF BANKS.
Each borrowing of Revolving Credit Loans shall be allocated to each
Bank according to its Revolving Credit Ratable Share (irrespective of the amount
of Bid Loans outstanding), the Term Loans shall be allocated to each Bank
according to its Term Loan Ratable Share and each selection of, conversion to or
renewal of any Interest Rate Option applicable to Revolving Credit Loans or Term
Loans and each payment or prepayment by the Borrower with respect to principal
or interest on the Revolving Credit Loans or Term Loans or Facility Fees, Letter
of Credit Fees, or other fees (except for the Administrative Agent's Fee) or
amounts due from the Borrower hereunder to the Banks with respect to the
Revolving Credit Loans or Term Loans, shall (except as provided in Section 3.4.3
[Administrative Agent's and Lender's Rights] in the case of an event specified
in Sections 3.4 [Euro-Rate Unascertainable, etc.], 4.4.2 [Replacement of a
Lender] or 4.5 [Additional Compensation in Certain Circumstances]) be made in
proportion to the applicable Revolving Credit Loans or Term Loans outstanding
from each Bank and, if no such Loans are then outstanding, in proportion, as
applicable, to the Revolving Credit Ratable Share or Term Loan Ratable Share, as
the case may be, of each Bank. Each borrowing of a Bid Loan shall be made
according to the provisions in Section 2.9 hereof and each payment or prepayment
by the Borrower of principal, interest, fees or other amounts from the Borrower
with respect to Bid Loans shall be made to the Lenders in proportion to the
amounts of such items due to such Lenders. Notwithstanding any of the foregoing,
each
- 48 -
borrowing or payment or prepayment by the Borrower of principal, interest or
other amounts from the Borrower with respect to Swing Loans shall be made by or
to PNC Bank according to Section 2.
4.3 INTEREST PAYMENT DATES.
Interest on Swing Loans or Revolving Credit 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 Loans. 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 Term Loan Expiration Date or upon acceleration of the Loans.
Interest on Committed Loans (other than Swing Loans) and Bid Loans to which the
Euro-Rate Option applies and Bid Loans to which the Bid Loan Fixed 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 each Loan or other monetary Obligation shall be due and
payable on demand after such principal amount or other monetary Obligation
becomes due and payable (whether on the stated 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 Committed 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 any Committed Loan to
which the Base Rate Option applies,
(ii) on the last day of the applicable Interest Period
with respect to Committed Loans to which a Euro-Rate Option applies,
(iii) on the date specified in a notice by any Lender
pursuant to Section 3.4 [Euro-Rate Unascertainable, etc.] with respect to any
Committed Loan to which a Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the Committed 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 Committed Loans or no later than 1:00 p.m., Pittsburgh time, on the date
of prepayment of Swing Loans setting forth the following information:
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(x) the date, which shall be a Business Day, on which
the proposed prepayment is to be made;
(y) the application of the prepayment among the Swing
Loans, Term Loans and the Revolving Credit Loans; and
(z) the total principal amount of such prepayment,
which shall not be less than $10,000,000 for any Revolving Credit Loan, and in
increments of $1,000,000 above $10,000,000, not less than $10,000,000 for Term
Loans and in increments of $1,000,000 above $10,000,000, and not less than
$1,000,000 for Swing Loans, and in increments of $100,000 above $1,000,000.
All prepayment notices shall be irrevocable. The principal amount of the
Committed Loans for which a prepayment notice is given, together with interest
on such principal amount (except with respect to interest on Revolving Credit
Loans to which the Revolving Credit Base Rate Option applies which shall be paid
in accordance with this Agreement on the next due date for the payment thereof),
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 Section 4.4.1 shall be applied to the unpaid installments of
principal of the Term Loans in the inverse order of scheduled maturities. Except
as provided in Section 3.4.3 [Administrative Agent's and Lender's Rights], if
the Borrower prepays a Committed Loan but fails to specify the applicable
Borrowing Tranche which the Borrower is prepaying, the prepayment shall be
applied (i) first to Swing Loans, then (ii) second to Revolving Credit Loans to
which the Revolving Credit Base Rate Option applies, then (iii) third to Term
Loans to which the Term Loan Base Rate Option applies, then (iv) fourth to
Revolving Credit Loans to which the Revolving Credit Euro-Rate Option applies,
and then (v) finally to Term Loans to which the Term Loan 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]. Bid Loans can not be
voluntarily prepaid by the Borrower.
4.4.2 REPLACEMENT OF A LENDER.
In the event any Lender (i) gives notice under Section 3.4
[Euro-Rate Unascertainable, etc.] or Section 4.5.1 [Increased Costs, etc.], (ii)
does not fund Revolving Credit Loans, Term Loans or Bid Loans because the making
of such Loans would contravene any Law applicable to such Lender, or (iii)
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 Loans of such Lender in whole, together with all
interest accrued thereon, and terminate such Lender's Commitment within ninety
(90) days after (x) receipt of such Lender's notice under Section 3.4 [Euro-Rate
Unascertainable, etc.] or 4.5.1 [Increased Costs, Etc.], (y) the date such
Lender has failed to fund Revolving Credit Loans or Bid Loans because the making
of such Loans would contravene Law applicable to such Lender, or (z) the date
such Lender became subject to the control of an
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Official Body, as applicable; PROVIDED that the Borrower shall also pay to such
Lender at the time of such prepayment any amounts required under Section 4.5
[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 Lender as a consequence of the
prepayment of the Loans of such Lender in accordance with this Section 4.4.2 on
a day other than the last day of an Interest Period with respect to Loans to
which a Euro-Rate Option or Bid Loan Fixed Rate Option applies if the 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, any Term Loan and any Bid
Loan of such Lender shall be provided by one or more of the remaining Lenders or
a replacement bank acceptable to the Agents and the Issuing Banks; PROVIDED,
further, that the remaining Lenders shall have no obligation hereunder to
increase their Commitments or provide the Bid Loan of such Lender.
Notwithstanding the foregoing, the Administrative Agent may only be replaced
subject to the requirements of Section 9.14 [Successor Agents] and an Issuing
Bank may only be replaced if all Letters of Credit issued by such Issuing Bank
have expired or been terminated or replaced.
4.4.3 CHANGE OF LENDING OFFICE.
Each Lender agrees that upon the occurrence of any event
giving rise to increased costs or other special payments under Section 3.4.2
[Illegality, etc.] or 4.5.1 [Increased Costs, etc.] with respect to such Lender,
it will if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans or Letters of Credit affected by such event, PROVIDED that such
designation is made on such terms that such Lender and its lending office suffer
no economic, legal or regulatory disadvantage on such Lender's good faith
determination, with the object of avoiding the consequence of the event giving
rise to the operation of such Section. Nothing in this Section 4.4.3 shall
affect or postpone any of the Obligations of the Borrower or any other Loan
Party or the rights of any Agent or any Lender provided in this Agreement.
4.4.4 VOLUNTARY REDUCTION OF COMMITMENTS.
The Borrower shall have the right, upon not less than five (5)
Business Days' written irrevocable notice to the Administrative Agent, to
terminate the Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments, which notice shall specify the date
and amount of any such reduction and otherwise be substantially in the form of
EXHIBIT 4.4.4 (a "Commitment Reduction Notice"). Any such reduction shall be in
a minimum amount equal to $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, PROVIDED, that the Revolving Credit Commitments may not be
reduced below the sum of the aggregate principal amount of all Revolving
Facility Usage. Each reduction of Revolving Credit Commitments shall ratably
reduce the Revolving Credit Commitments of the Banks.
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4.4.5 MANDATORY PREPAYMENT UPON ISSUANCE OF CERTAIN DEBT AND
CERTAIN EQUITY.
Within five (5) Business Days of the issuance by the Borrower
or any Subsidiary of the Borrower (other than Excluded Subsidiaries), of any
debt or equity securities for cash proceeds (including any hybrid equity
securities), the Borrower shall make a mandatory prepayment of principal on the
Term Loans equal to 75% of the Net Cash Proceeds of any debt securities and
equal to 50% of the Net Cash Proceeds of any equity securities (each a
"Mandatory Prepayment") (PROVIDED that no mandatory prepayment shall be required
with respect to the issuance of debt or equity securities by such Persons
following the Closing Date of up to $300,000,000 in the aggregate of such
securities). Each Mandatory Prepayment shall be applied to payment in full of
the principal amount of the Term Loans by application to the unpaid installments
of principal in the inverse order of scheduled maturities. Any prepayment
hereunder shall be subject to the Borrower's Obligation to indemnify the Banks
under Section 4.5.2 [Indemnity]. To the extent that a Mandatory Prepayment
exceeds the outstanding principal amount of the Term Loans, such prepayment
shall be limited to the amount necessary to prepay the Term Loans in full. If
the Borrower's senior unsecured long-term debt, on a consolidated basis, is
rated Investment Grade, then at any time thereafter when the Borrower issues
debt or equity securities if the senior unsecured long-term debt of the Borrower
is rated, as of the date of issuance of such debt or equity securities, by
either Moody's at Baa3 or better or Standard & Poor's at BBB- or better, no
Mandatory Prepayment pursuant to this Section 4.4.5 will be required to be made.
4.4.6 MANDATORY PREPAYMENT UPON SALE OF ASSETS.
Within five (5) Business Days of any sale of assets by any
member of the Arch Coal Group authorized by Section 7.2.4(v) [Disposition of
Assets or Subsidiaries], the Borrower shall make a mandatory prepayment of
principal on the Term Loans equal to the Net Cash Proceeds of such sale (as
estimated in good faith by the Borrower), together with accrued interest on such
principal amount. All prepayments pursuant to this Section 4.4.6 shall be
applied to payment in full of the principal amount of the Term Loans by
application to the unpaid installments of principal in the inverse order of
scheduled maturities. Any prepayment hereunder shall be subject to the
Borrower's Obligation to indemnify the Banks under Section 4.5.2 [Indemnity]. If
the Borrower's senior unsecured long-term debt, on a consolidated basis, is
rated Investment Grade, then at any time thereafter when any member of the Arch
Coal Group sells assets in accordance with Section 7.2.4(v), if the senior
unsecured long-term debt of the Borrower is rated, as of the date of such asset
sale, by either Moody's at Baa3 or better or by Standards & Poor's at BBB- or
better, no prepayment pursuant to this Section 4.4.6 will be required to be
made.
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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 Lender to any tax or changes the
basis of taxation with respect to this Agreement, the Committed Loans or the Bid
Loans or payments by the Borrower of principal, interest, Facility Fees, or
other amounts due from the Borrower hereunder (except for taxes on the overall
net income of such Lender),
(ii) imposes, modifies or deems applicable any
reserve, special deposit or similar requirement against credits or commitments
to extend credit extended by, or assets (funded or contingent) of, deposits with
or for the account of, or other acquisitions of funds by, any Lender, 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 Lender, or (B) otherwise applicable to the obligations of any Lender 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
Lender with respect to this Agreement, or the making, maintenance or funding of
any part of the Committed Loans or the Bid Loans (or, in the case of any capital
adequacy or similar requirement, to have the effect of reducing the rate of
return on any Lender's capital, taking into consideration such Lender's
customary policies with respect to capital adequacy) by an amount which such
Lender in its sole discretion deems to be material, such Lender shall from time
to time notify the Borrower and the Administrative Agent of the amount
determined in good faith (using any averaging and attribution methods employed
in good faith) by such Lender to be necessary to compensate such Lender for such
increase in cost, reduction of income, additional expense or reduced rate of
return. Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such
Lender ten (10) Business Days after such notice is given.
4.5.2 INDEMNITY.
In addition to the compensation required by Section 4.5.1
[Increased Costs, etc.], the Borrower shall indemnify each Lender against all
liabilities, losses or expenses (including loss of margin, any loss or expense
incurred in liquidating or employing deposits from third parties and any loss or
expense incurred in connection with funds acquired by a Lender to
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fund or maintain Loans subject to a Euro-Rate Option or the Bid Loan Fixed Rate
Option) which such Lender sustains or incurs as a consequence of any
(i) payment, prepayment, conversion or renewal of any
Loan to which a Euro-Rate Option or the Bid Loan Fixed Rate Option applies on a
day other than the last day of the corresponding Interest Period (whether or not
such payment or prepayment is mandatory, voluntary or automatic and whether or
not such payment or prepayment is then due);
(ii) attempt by the Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or part any Loan Requests
under Section 2.4.1 [Committed Loan Requests], Section 2.4.2 [Swing Loan
Requests], Section 2.9 [Bid Loan Facility] or Section 3.2 [Interest Periods] or
notice relating to prepayments under Section 4.4.1 [Voluntary Prepayments];
(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 Committed Loans
or the Bid Loans, Facility Fees or any other amount due hereunder; or
(iv) payment or prepayment of any Bid Loan on a day
other than the maturity date thereof (whether or not such payment or prepayment
is mandatory or voluntary).
If any Lender sustains or incurs any such loss or expense, it shall from time to
time notify the Borrower of the amount determined in good faith by such Lender
(which determination may include such assumptions, allocations of costs and
expenses and averaging or attribution methods as such Lender shall deem
reasonable) to be necessary to indemnify such Lender for such loss or expense.
Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such
Lender ten (10) Business Days after such notice is given.
4.6 NOTES.
Upon the request of any Bank, the Revolving Credit Loans or Term
Loans made by such Bank may be evidenced by a Revolving Credit Note in the form
of EXHIBIT 1.1(R) or a Term Note in the form of EXHIBIT 1.1(T).
4.7 SETTLEMENT DATE PROCEDURES.
In order to minimize the transfer of funds between the Banks and the
Administrative Agent, the Borrower may borrow, repay and reborrow Swing Loans
and PNC Bank may make Swing Loans as provided in Section 2.5 hereof during the
period between Settlement Dates. Not later than 11:00 a.m., on each Settlement
Date, the Administrative Agent shall notify each Bank of its Revolving Credit
Ratable Share of the total of the Revolving Credit
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Loans and the Swing Loans (each a "Required Share"). Prior to 2:00 p.m.,
Pittsburgh time, on such Settlement Date, each Bank shall pay to the
Administrative Agent the amount equal to the difference between its Required
Share and its Revolving Credit Loans, and the Administrative Agent shall pay to
each Bank its Revolving Credit Ratable Share of all payments made by the
Borrower to the Administrative Agent with respect to the Revolving Credit Loans.
The Administrative Agent shall also effect settlement in accordance with the
foregoing sentence on the proposed Borrowing Dates for Revolving Credit Loans
and may at its option effect settlement on any other Business Day. These
settlement procedures are established solely as a matter of administrative
convenience, and nothing contained in this Section 4.7 shall relieve the Banks
of their obligations to fund Revolving Credit Loans on dates other than a
Settlement Date pursuant to Sections 2.1.1 and 2.2. The Administrative Agent may
at any time for any reason whatsoever require each Bank to pay immediately to
the Administrative Agent such Bank's Revolving Credit Ratable Share of the
outstanding Revolving Credit Loans, and each Bank may at any time require the
Administrative Agent to pay immediately to such Bank its Revolving Credit
Ratable Share of all payments made by the Borrower to the Administrative Agent
with respect to the Revolving Credit Loans.
4.8 TAXES.
4.8.1 NO DEDUCTIONS.
All payments made by the Borrower hereunder shall be made free
and clear of and without deduction for any present or future taxes, levies,
imposts, deductions, charges, or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on the net income of the Lenders and all income
and franchise taxes of the United States applicable to the Lenders (all such
non-excluded taxes, levies, imposts deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable under
the Credit Agreement, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this subsection) the 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.
4.8.2 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").
4.8.3 INDEMNIFICATION FOR TAXES PAID BY LENDERS.
The Borrower shall indemnify the Lenders for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any
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jurisdiction on amounts payable under this subsection) paid by such Lender and
any liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender makes written demand therefor.
4.8.4 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 Lenders the original or a certified copy of a receipt evidencing
payment thereof. If no Taxes are payable in respect of any payment by the
Borrower, the Borrower shall, if so requested by any Lender, provide a
certificate of an officer of the Borrower to that effect.
4.8.5 SURVIVAL.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in subsections 4.8.1 through 4.8.4 shall survive the payment in full of
principal and interest under any promissory note made by Borrower to any Lender
under the Credit Agreement.
4.8.6 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 4.8.1, the relevant Lender (to the extent such Lender reasonably
determines in good faith that it will not suffer any adverse effect as a result
thereof) shall cooperate with the Borrower in challenging the imposition of such
Taxes or Other Taxes at the Borrower's expense if so requested by the Borrower
in writing. If such Lender receives a refund of Taxes or Other Taxes for which
the payment has been made by the Borrower pursuant to this Agreement, which
refund in the good faith judgment of such Lender is attributable to the
Borrower, then such Lender shall reimburse the Borrower for such amount as such
Lender determines to be the proportion of the refund as will leave it, after
such reimbursement, in no better or worse position than it would have been in if
the payment had not been required. No Lender nor any Agent shall be obliged to
disclose information regarding its tax affairs or computations to Borrower in
connection with this Section 4.8.6 or any other provision of Section 4.8.
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agents and each of the
Lenders as follows:
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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 SHARES OF BORROWER; SUBSIDIARIES; AND SUBSIDIARY
SHARES.
On the Closing Date, SCHEDULE 5.1.2 states the name of each of
the Borrower's Subsidiaries, its jurisdiction of incorporation, 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. On the Closing Date,
SCHEDULE 5.1.2 also sets forth the jurisdiction of incorporation of the
Borrower, its authorized capital stock (the "Borrower Shares") and the voting
rights associated therewith. 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. All Borrower Shares, Subsidiary Shares, Partnership Interests and LLC
Interests have been validly issued, and all Borrower Shares and all Subsidiary
Shares are fully paid and nonassessable. All capital contributions and other
consideration required to be made or paid in connection with the issuance of the
Partnership Interests and LLC Interests have been made or paid, as the case may
be. On the Closing Date, there are no options, warrants or other rights
outstanding to purchase any such Borrower Shares, 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 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
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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 of its Subsidiaries
party thereto. On the Closing Date, the Acquisition 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 of its Subsidiaries 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 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
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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 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) HISTORICAL STATEMENTS.
(a) The Borrower has delivered to the Administrative
Agent copies of its audited consolidated year-end financial statements for and
as of the end of the fiscal year ended December 31, 1997 (the "Annual
Statements"). In addition, the Borrower has delivered to the Administrative
Agent copies of its unaudited consolidated interim financial statements for the
fiscal year to date and as of the end of the fiscal quarter ended March 31, 1998
(the "Interim Statements") (the Annual and Interim Statements being collectively
referred to as the "Historical Statements"). The Historical Statements were
compiled from the books and records maintained by the Borrower's management, are
correct and complete and fairly represent
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the consolidated financial condition of the Borrower and its Subsidiaries as of
their dates and the results of operations for the fiscal periods then ended and
have been prepared in accordance with GAAP consistently applied, subject (in the
case of the Interim Statements) to normal year-end audit adjustments. 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 flows for
each of the three years in the period ended December 31, 1997 (collectively, the
"ACC Annual Statements").
(b) To the knowledge of the Borrower, as of 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 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.
(a) Neither the Borrower nor any Subsidiary of the
Borrower has on the Closing Date any liabilities, contingent or otherwise, or
forward or long-term commitments that are not disclosed in the Historical
Statements or in the notes thereto, and except as disclosed therein there are no
unrealized or anticipated losses from any commitments of the Borrower or any
Subsidiary of the Borrower which could reasonably be expected to result in a
Material Adverse Change. Since December 31, 1997, no Material Adverse Change has
occurred.
(b) To the knowledge of the Borrower, as of the Closing
Date, 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.
(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"). On the
Closing Date, the Financial Projections represent a reasonable range of possible
results in light of the history of the business (in the case of Arch Western,
taking into consideration the ACC Annual Statements and the history of
performance of Arch of Wyoming LLC), present and foreseeable conditions and the
intentions of the Borrower's management. The Financial Projections accurately
reflect the liabilities of the Borrower and its Subsidiaries upon consummation
of the Acquisition and of the transactions contemplated hereby as of the Closing
Date.
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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 2.7, 2.15 and 7.1.9.
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.
5.1.8.3 [INTENTIONALLY OMITTED].
5.1.9 FULL DISCLOSURE.
On the Closing Date, 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 Lender
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 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. On the Closing Date, 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
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assessments received, except to the extent that such taxes, fees, assessments
and other charges are being contested in good faith by appropriate proceedings
diligently conducted and for which such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made. There are
no agreements or waivers extending the statutory period of limitations
applicable to any federal income tax return of any Loan Party or Subsidiary of
any Loan Party for any period.
5.1.11 CONSENTS AND APPROVALS.
No consent, approval, exemption, order or authorization of, or
a registration or filing with, any Official Body or any other Person is required
by any Law or any 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 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.
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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. Such policies and bonds
provide adequate coverage from reputable and financially sound insurers in
amounts sufficient to insure the assets and risks of each Loan Party and each
Subsidiary of each Loan Party in accordance with prudent business practice in
the industry of the Loan Parties and their Subsidiaries.
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 and 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
(other than premium payments), and (iii) have not had asserted against them any
penalty for failure to fulfill the minimum funding requirements of ERISA. All
Plans and Benefit Arrangements have been administered in all material respects
with their terms and applicable Law.
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(ii) No event requiring notice to the PBGC under
Section 302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur
with respect to any Plan, and no amendment with respect to which security is
required under Section 307 of ERISA has been made or is reasonably expected to
be made to any Plan.
(iii) Neither the Borrower nor any other member of
the ERISA Group has incurred or reasonably expects to incur any material
withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither the Borrower nor any other member of the ERISA Group has been
notified by any Multiemployer Plan or Multiple Employer Plan that such
Multiemployer Plan or Multiple Employer Plan has been terminated within the
meaning of Title IV of ERISA and, to the best knowledge of the Borrower, no
Multiemployer Plan or Multiple Employer Plan is reasonably expected to be
reorganized or terminated, within the meaning of Title IV of ERISA.
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.
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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.
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, Arch Western, 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 Arch Western).
5.1.21 BLACK LUNG.
As of the Closing Date, the Historical Statements, in the case
of the Borrower and its Subsidiaries, and 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 in the case of
ACC, contain reasonably adequate reserves in accordance with GAAP for the
respective black lung liabilities of the Borrower and its Subsidiaries and for
ACC.
5.1.22 COASTAL AGREEMENT.
Canyon Fuel is a "Buyer Indemnitee" under the Coastal
Agreement and, as such, has the rights of an "Indemnified Party" under the
Coastal Agreement. Consummation of the Acquisition 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 and on the Closing Date, each date
thereafter on which a Loan is made or a Letter of Credit is issued as provided
in and subject to Sections 6.1 [First Loans and Letters of Credit] and
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6.2 [Each Additional Loan or Letter of Credit] and on the Syndication Date as
provided in and subject to Section 6.3 [Syndication].
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Lender to make Loans and of the Issuing Banks to
issue Letters of Credit hereunder is subject to the performance by the Borrower
of its Obligations to be performed hereunder at or prior to the making of any
such Loans or issuance of such Letters of Credit and to the satisfaction of the
following further conditions:
6.1 FIRST LOANS AND LETTERS OF CREDIT.
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) with the same effect as though such representations and warranties
had been made on and as of such date (except representations and warranties
which relate solely to an earlier date or time, which representations and
warranties shall be true and correct on and as of the specific dates or times
referred to therein), and each of the Loan Parties shall have performed and
complied with all covenants and conditions hereof and thereof, no Event of
Default or Potential Default shall have occurred and be continuing or shall
exist; and there shall be delivered to the Administrative Agent for the benefit
of each Lender a certificate of the Borrower dated the Closing Date and signed
by the Chief Executive Officer, President or Chief Financial Officer 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 Lender a certificate dated the Closing Date and signed by the
Secretary or an Assistant Secretary of each of the Loan Parties, certifying as
appropriate as to:
(i) all action taken by each Loan Party in connection
with this Agreement and the other Loan Documents;
(ii) the names of the officer or officers authorized
to sign this Agreement and the other Loan Documents and the true signatures of
such officer or officers and specifying the Authorized Officers permitted to act
on behalf of each Loan Party for purposes of this Agreement and the true
signatures of such officers, on which the Administrative Agent and each Lender
may conclusively rely; and
(iii) in the case of the Borrower, copies of its
organizational documents, including its certificate of incorporation and bylaws
as in effect on the Closing Date
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and, in the case of the certificate of incorporation 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 the Borrower in the state of its
formation and the state of its principal place of business.
6.1.3 DELIVERY OF GUARANTY AGREEMENT.
The Guaranty Agreement shall have been duly executed and
delivered to the Administrative Agent for the benefit of the Lenders.
6.1.4 OPINION OF COUNSEL.
There shall be delivered to the Administrative Agent for the
benefit of each Lender a written opinion of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and of
▇▇▇▇▇▇ ▇▇▇▇▇, the 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 General Counsel to ARCO.
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 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, to the
Administrative Agent for itself and for the account of the Lenders to the extent
not previously paid the Facility Fees, all other commitment and other fees
accrued through the Closing Date and the costs and expenses for which the
Arrangers and the Lenders are entitled to be reimbursed.
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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 AND SOLVENCY.
Since December 31, 1997, no Material Adverse Change shall have
occurred; since December 31, 1997 and through the Closing Date, 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 Lender a
certificate dated the Closing Date, in form and substance satisfactory to the
Agents and signed by the Chief Executive Officer, President or Chief Financial
Officer of the Borrower to each such effect and further certifying that the
Borrower and its Subsidiaries, on a consolidated basis are Solvent and 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.
6.1.9 NO VIOLATION OF LAWS.
The making of the Loans, the issuance of the Letters of Credit
and the consummation of the Acquisition and of the transactions contemplated by
the Acquisition Documents shall not contravene any Law applicable to any Loan
Party or any of the Lenders.
6.1.10 NO ACTIONS OR PROCEEDINGS.
No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, this Agreement, the other Loan Documents, the
Acquisition, the Acquisition Documents or the consummation of the transactions
contemplated hereby or thereby or which, in the Administrative Agent's sole
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement or any of the other Loan Documents or which in
the good faith judgment of the Agents could adversely affect the syndication of
the Loans.
6.1.11 ACQUISITION.
Any material changes 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 in
their sole discretion. The organization and capital structure of Arch Western
shall be satisfactory to the Agents in their sole discretion. All conditions to
closing shall have been satisfied under the Acquisition Documents or waived to
the satisfaction of the Agents. The Acquisition shall have been consummated in
accordance with the
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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
Lender.
6.1.12 FINANCIAL PROJECTIONS.
The Financial Projections shall be satisfactory in form and
substance to the Agents.
6.1.13 ARCH WESTERN CAPITAL AND FINANCING.
Contributions to the equity of Arch Western shall have been
consummated on terms and conditions and in the amounts required by the
Acquisition Documents. All conditions to closing shall have been satisfied under
the Arch Western Credit Facility.
6.1.14 INSURANCE.
The Borrower shall have delivered to the Agents evidence of
the insurance required under the Loan Documents.
6.1.15 PAYOFF OF EXISTING CREDIT FACILITY.
On or before the Closing Date, the Borrower shall have repaid
the Existing Credit Facility and shall have terminated the Existing Credit
Facility and all commitments to make loans or issue letters of credit
thereunder, and the Borrower shall have provided evidence of all of the
foregoing to the Agents to the satisfaction of the Agents.
6.1.16 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.
6.2 EACH ADDITIONAL LOAN OR LETTER OF CREDIT.
At the time of making any Loans or issuing any Letters of Credit
other than Loans made or Letters of Credit issued on the Closing Date and after
giving effect to the proposed extensions of credit: the representations and
warranties of the Borrower contained in Section 5 and of the Loan Parties in the
other Loan Documents shall be true on and as of the date of such additional Loan
or Letter of Credit with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time, which
representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein) and the Borrower shall have
performed and complied with all covenants and conditions hereof; no Event of
Default or Potential Default shall have occurred and be continuing or shall
exist; the making of the Loans or issuance of such Letter of Credit shall not
contravene any Law applicable to the Borrower or any Subsidiary of the Borrower
or any of the Lenders; and the Borrower shall have delivered to the
Administrative Agent (and the Issuing Banks in the case of a request for a
Letter of Credit,
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and PNC Bank in the case of a request for a Swing Loan) a duly executed and
completed Loan Request or application for a Letter of Credit as the case may be.
6.3 SYNDICATION.
6.3.1 SYNDICATION DATE REPRESENTATIONS AND WARRANTIES.
(a) On the Syndication Date, the representations and
warranties of the Borrower contained in Section 5 and of the Loan Parties in the
other Loan Documents shall be true with the 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 Lenders (i) an Officer's
Certificate dated as of the Syndication Date with respect to the matters set
forth in Sections 6.3.1(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) Revolving
Credit Notes, Term Notes and Bid 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 Revolving Credit Notes, Term Notes and Bid Notes issued to such
Lenders, (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.
6.3.2 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 credit facilities, 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
Loans and Reimbursement Obligations and interest thereon, expiration or
termination of all Letters of Credit, satisfaction of all of the Loan Parties'
other Obligations under the Loan Documents and
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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, and shall cause Arch Western to, maintain
its legal existence as a corporation or limited liability company, as the case
may be. The Borrower shall cause each of its Subsidiaries (other than Arch
Western, which is subject to the previous sentence) 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, and shall cause Arch Western
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
or maintain such qualification could be corrected without a material adverse
effect on the Borrower or Arch Western. The Borrower shall cause each of its
Subsidiaries (other than Arch Western, which is subject to the previous
sentence) 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.
7.1.3 MAINTENANCE OF INSURANCE.
The Borrower shall, and shall cause each of its Subsidiaries
to, insure its properties and assets against loss or damage by fire and such
other insurable hazards as such assets are commonly insured (including fire,
extended coverage, property damage, workers' compensation, public liability and
business interruption insurance) and against other risks (including errors and
omissions) in such amounts as similar properties and assets are insured by
prudent companies in similar circumstances carrying on similar businesses, and
with reputable and financially sound insurers, including self-insurance to the
extent customary.
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
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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 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
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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 Letters of Credit and the proceeds
of the Loans only for (i) general corporate purposes and for working capital for
the Borrower and its Subsidiaries, (ii) to finance the Acquisition Transactions
or (iii) to refinance the Existing Credit Facility. The Borrower's use of the
Letters of Credit and the proceeds of the Loans shall not be for any purpose
which contravenes any applicable Law or any provision hereof.
7.1.10 OPERATION OF MINES.
The Borrower shall, and shall cause each of its Subsidiaries
to, operate their mines in all material respects in accordance with sound coal
mining practices 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
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 a Material Contract
could not be reasonably expected to result in a Material Adverse Change.
7.2 NEGATIVE COVENANTS.
The Borrower covenants and agrees that until payment in full of the
Loans and Reimbursement Obligations and interest thereon, expiration or
termination of all Letters of Credit, satisfaction of all of the Loan Parties'
other Obligations hereunder and termination of the Commitments, the Borrower
shall, and shall cause each of its Subsidiaries to, comply with the following
negative covenants:
7.2.1 INDEBTEDNESS.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, at any time create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) additional Indebtedness of the Borrower or any
other Loan Party incurred after the Closing Date (not to exceed $300,000,000 in
the aggregate outstanding for all Loan Parties at any time during any period
prior to the date on which the senior unsecured long-term debt of the Borrower,
on a consolidated basis, has been rated
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Investment Grade) so long as, both before and after giving effect to any
proposed additional Indebtedness:
(y) the Borrower and its Subsidiaries shall be
in compliance with Section 7.2.10 [Maximum Leverage Ratio], Section 7.2.11
[Minimum Fixed Charge Coverage Ratio], and Section 7.2.12 [Minimum Net Worth]
determined on a pro forma basis (in the case of the Fixed Charge Coverage Ratio,
the Minimum Net Worth test and the Leverage Ratio as of the end of the fiscal
quarter most recently ended and as if such proposed additional Indebtedness was
outstanding as of the first day of such fiscal quarter), and
(z) the covenants and defaults applicable in
respect of such proposed additional Indebtedness are not, taken as a whole,
materially more restrictive with respect to the Borrower and its Subsidiaries
than the covenants and defaults under this Agreement;
(iii) Indebtedness of Arch Western payable to Borrower,
subject to the limitations of Section 7.2.14(v);
(iv) Indebtedness of Arch Western and its Subsidiaries
pursuant to the Arch Western Credit Facility;
(v) Indebtedness of any Subsidiary of the Borrower
which is a member of the Arch Coal Group payable to the Borrower or to any other
member of the Arch Coal Group;
(vi) Indebtedness of the Borrower payable to Arch
Western; and
(vii) Indebtedness of the Borrower and its Subsidiaries
reflected in the Historical Statements (other than Indebtedness refinanced with
the proceeds of the Loans) and any refinancings thereof or amendments thereto
that do not increase the amount of such Indebtedness beyond an amount otherwise
permitted by this Agreement.
7.2.2 LIENS.
The Borrower shall not, and shall not permit any member of the
Arch Coal Group 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 so long as the aggregate amount of all payments by any such
Person in respect of all Indebtedness secured by such Permitted Liens does not
at any time exceed seven and one-half percent (7 1/2%) of the total assets of
the Arch Coal Group (exclusive of Investment in the Arch Western Group), as
determined and consolidated in accordance with GAAP.
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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 the Excluded
Subsidiaries),
(2) the Borrower and Arch Western may complete the Acquisition
in accordance with the Acquisition Documents, and
(3) any Loan Party may acquire, whether by purchase or by
merger, (A) all of the ownership interests of another Person or (B)
substantially all of assets of another Person or of a business or division of
another Person (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];
(iii) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Permitted
Acquisition;
(iv) the Borrower and its Subsidiaries shall be in
compliance with the covenants contained in Sections 7.2.10 [Maximum Leverage
Ratio], 7.2.11 [Minimum Fixed Charge Coverage Ratio], and 7.2.12 [Minimum Net
Worth] determined on a pro forma basis after giving effect to such Permitted
Acquisition (including in such computation Indebtedness or other liabilities
assumed or incurred in connection with such Permitted Acquisition as if such
liabilities 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:
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(i) transactions involving the sale of inventory in
the ordinary course of business;
(ii) any sale, transfer or lease of assets by any
Subsidiary of the Borrower which is a member of the Arch Coal Group to any other
member of the Arch Coal Group or any sale, transfer or lease of assets by any
Subsidiary of Arch Western which is a member of the Arch Western Group to any
other member of the Arch Western Group;
(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; and PROVIDED FURTHER that if and to the extent such
Net Cash Proceeds are not so applied to the purchase of substitute assets within
such 90-day period, such sale shall be deemed to have been made on the last day
of such period pursuant to clause (v) below;
(iv) any sale, transfer or lease (including any lease
transaction under Section 7.2.9 [Off Balance Sheet Financing]) of assets, other
than those specifically excepted pursuant to clauses (i) through (iii) above,
PROVIDED that (a) at the time of any disposition, no Event of Default shall
exist or shall result from such disposition, (b) 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 each such sale, transfer or lease of assets, and (c) the aggregate net
book value of all assets so sold by the Borrower and its Subsidiaries shall not
exceed in any calendar year the greater of (x) $100,000,000 or (y) 5% of the
total assets of the Arch Coal Group (exclusive of investment in the Arch Western
Group) (as of the last day of such calendar year), determined and consolidated
in accordance with GAAP; (v) any sale, transfer or lease of assets, other than
those specifically excepted pursuant to clauses (i) through (iv) above or clause
(vi) below, so long as the Net Cash Proceeds are applied as a mandatory
prepayment of the Term Loans in accordance with the provisions of Section 4.4.6;
(vi) any transfer of assets by the Borrower to Arch
Western as contemplated by the Contribution Agreement; or
(vii) any transfer of assets by any member of the Arch
Western Group permitted by the Arch Western Credit Facility, as in effect on the
Closing Date.
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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) the Excluded Subsidiaries, (ii) any Significant Subsidiary which has
joined the Guaranty Agreement as Guarantor on the Closing Date; (iii) any
Significant Subsidiary formed or acquired after the Closing Date which becomes a
Guarantor in accordance with Section 10.18 [Joinder of Guarantors]; (iv) 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 (v) 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]. 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 may make an
Investment in a Permitted Joint Venture; PROVIDED, HOWEVER, that the aggregate
permitted Investments in all Permitted Joint Ventures shall not at any time
exceed, for all Loan Parties and their Subsidiaries, $50,000,000, or (2) become
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
and except that the Borrower may hold a limited liability company interest in
Arch Western and Arch Western may hold limited liability company interests in
its Subsidiaries which are members of the Arch Western Group.
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 Acquisition and any business substantially related thereto,
and neither the Borrower nor any Subsidiary of the Borrower shall permit any
material change in such business.
7.2.8 PLANS AND BENEFIT ARRANGEMENTS.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in a Prohibited Transaction with any Plan, Benefit
Arrangement or Multiemployer Plan which, alone or in conjunction with any other
circumstances or set of circumstances results in liability under ERISA which
could reasonably be expected to result in a Material Adverse Change.
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7.2.9 OFF-BALANCE SHEET FINANCING.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in any off-balance sheet transaction (i.e., the
liabilities in respect of which do not appear on the liability side of the
balance sheet) providing the functional equivalent of borrowed money (including
asset securitizations [other than accounts receivable or inventory
securitizations], sale/leasebacks, or Synthetic Leases), in excess, in the
aggregate for the Borrower and its Subsidiaries as of any date of determination,
of 7.5% of the sum, without duplication, of (y) the total assets of the Borrower
and its Subsidiaries, determined and consolidated in accordance with GAAP as of
the date of determination, and (z) with respect to each Special Subsidiary, an
amount equal to the Appropriate Percentage multiplied by the total assets of
such Person, determined in accordance with GAAP. For purposes of this Section
7.2.9, (a) "Synthetic Lease" shall mean any lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended, and (ii) the lessee will be entitled to various tax benefits ordinarily
available to owners (as opposed to lessees) of like property and (b) the amount
of any lease which is not a capital lease in accordance with GAAP is the
aggregate amount of minimum lease payments due pursuant to such lease for any
noncancelable portion of its term.
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 4.50 TO 1.00
------------
January 1, 1999 through and
including December 31, 1999 4.25 TO 1.00
------------
January 1, 2000 through and
including December 31, 2000 4.00 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 set forth below for the periods specified below:
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PERIOD RATIO
Closing Date through and including
December 31, 1998 2.50 TO 1.00
------------
January 1, 1999 through and
including December 31, 1999 2.75 TO 1.00
------------
January 1, 2000 through and
including December 31, 2000 3.00 TO 1.00
------------
January 1, 2001 and thereafter 3.25 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 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 (whether in cash, securities,
property or otherwise), other than restrictions applicable to the Arch Western
Group set forth in the Arch Western Credit Facility, other than restrictions
applicable to Arch Western set forth in the Arch Western LLC Agreement and other
than restrictions applicable to Canyon Fuel set forth in the Canyon Fuel LLC
Agreement.
7.2.14 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 (an "investment"), 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) investments by the Borrower in its Subsidiaries
which are members of the Arch Coal Group;
(iii) Permitted Investments;
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(iv) investments in Permitted Joint Ventures in
accordance with Section 7.2.6 [Subsidiaries, Partnerships and Joint Ventures];
(v) investments by the Borrower in, or reimbursement
obligations by the Borrower to an Issuing Bank with respect to any Letter of
Credit issued for the direct or indirect benefit of, Arch Western (collectively
the "Permitted Investments in Arch Western"); PROVIDED, HOWEVER, that the
Borrower shall not make any Permitted Investment in Arch Western if at the time
such investment is proposed to be made and after giving effect thereto (x) the
aggregate amount of the Permitted Investments in Arch Western would exceed
$100,000,000 and (y) the Leverage Ratio would be greater than 3.00 to 1.00; and
(vi) loans and advances permitted by Section 7.2.1(v).
7.2.15 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.
7.3 REPORTING REQUIREMENTS.
The Borrower covenants and agrees that until payment in full of the
Loans and Reimbursement Obligations, and interest thereon, expiration or
termination of all Letters of Credit, 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 stockholders' 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 or Chief Financial Officer of the
Borrower as having been prepared in accordance with GAAP, consistently applied,
and setting forth in comparative form the respective financial statements for
the corresponding date and period in the previous fiscal year. The Borrower will
be deemed to have complied with the delivery requirements with respect to the
consolidated financial statements required to be delivered under this Section
7.3.1 if within forty-five (45) days after the end of its fiscal quarter, the
Borrower delivers to the Administrative Agents and each of the Banks a copy of
the Borrower's Form 10-Q as filed with the SEC and the financial statements
contained therein meet the requirements described in this Section.
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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 stockholders' 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 certified, in the case
of the consolidated financial statements, 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 qualification that may result from a change in the
method used to prepare the financial statements as to which such accountants
concur) and shall not indicate the occurrence or existence of any event,
condition or contingency which would materially impair the prospect of payment
or performance of any covenant, agreement or duty of any Loan Party under any of
the Loan Documents. The Borrower will be deemed to have complied with the
delivery requirements with respect to the consolidated financial statements
required to be delivered under this Section 7.3.2 if within ninety (90) days
after the end of its fiscal year, the Borrower delivers to the Administrative
Agent and each of the Banks a copy of the Borrower's Annual Report and Form 10-K
as filed with the SEC and the financial statements and certification of public
accountants contained therein meet the requirements described in this Section.
7.3.3 CERTIFICATE OF THE BORROWER.
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
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
- 81 -
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 $20,000,000, 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.
7.3.6 NOTICE OF CHANGE IN DEBT RATING.
Within five (5) Business Days after Standard & Poor's or
▇▇▇▇▇'▇ announces a change in the Borrower's Debt Rating, notice of such change.
Borrower will deliver 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 which has not been waived by the PBGC,
(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 but only if the assessment of such civil penalty or
tax could reasonably be expected to result in a Material Adverse Change,
(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,
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(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 where such cessation of operations is
likely to result in a material liability under ERISA Sections 4060 or 4064,
(vi) withdrawal by the Borrower or any other member
of the ERISA Group from a Multiple Employer Plan where such withdrawal is likely
to result in material withdrawal liability,
(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 the unfunded benefit liability or obligation to make
periodic contributions.
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 Lender, each annual report (IRS Form 5500
series) and all accompanying schedules, the most recent actuarial reports, the
most recent financial information concerning the financial status of each Plan
administered or maintained by the Borrower or any other member of the ERISA
Group, and schedules showing the amounts contributed to each such Plan by or on
behalf of the Borrower or any other member of the ERISA Group in which any of
their personnel participate or from which such personnel may derive a benefit,
and each Schedule B (Actuarial Information) to the annual report filed by the
Borrower or any other member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.
7.3.7.3 NOTICE OF VOLUNTARY TERMINATION.
Promptly upon the filing thereof, copies of any notice
of standard termination with the PBGC, or any successor or equivalent form,
filed with the PBGC in connection with the termination of any Plan.
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7.3.8 OTHER INFORMATION.
Promptly following request therefor, such other information as
any Agent or Lender 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) or Reimbursement Obligation when such principal is due hereunder or
(ii) any interest on any Loan or Reimbursement Obligation or any other amount
owing hereunder or under the other Loan Documents within three (3) Business Days
after such interest or other amount becomes due in accordance with the terms
hereof or thereof;
8.1.2 BREACH OF WARRANTY.
(a) Any representation or warranty made by the Borrower in
Sections 5.1.3(b), 5.1.4(b), 5.1.5(b), 5.1.7(i)(b), 5.1.7(ii)(b) 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 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 [Reporting Requirements]
and such default shall continue
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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 (other than Excluded Subsidiaries)
may be obligated as a borrower or guarantor in excess of $20,000,000 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;
8.1.6 JUDGMENTS OR ORDERS.
Any judgments or orders for the payment of money in excess of
$20,000,000 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 $20,000,000 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;
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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 $20,000,000 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 taxes
or debts owing at any time or times hereafter to any one of these becomes
payable and the same is not paid within thirty (30) days after the same becomes
payable;
8.1.10 INSOLVENCY.
The Borrower and its Subsidiaries, taken as a whole, cease
to be Solvent;
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;
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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.
(i) 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 Borrower; or (ii) within a period of twelve (12)
consecutive calendar months, individuals who were directors of the Borrower on
the first day of such period shall cease to constitute a majority of the board
of directors of the Borrower;
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
any Loan Party or any Material Subsidiary of a Loan Party in an involuntary case
under any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or similar official) of
any Loan Party or any Material 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.
Any Loan Party or any Material 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.
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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, the Issuing Banks and the
Administrative Agent shall be under no further obligation to make Revolving
Credit Loans, Swing Loans or Bid Loans or issue Letters of Credit, as the case
may be (and the Administrative Agent shall not make any Swing Loans without the
consent of the Required Banks nor shall any Issuing Bank issue any Letter of
Credit without consent of the Required Banks), 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, or (ii) declare the unpaid principal amount of the Revolving
Credit Loans, Term Loans, Bid Loans and Swing Loans then outstanding and all
interest accrued thereon, any unpaid fees and all other Indebtedness of the
Borrower to the Lenders hereunder and thereunder to be forthwith due and
payable, and the same shall thereupon become and be immediately due and payable
to the 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 (iii) require the Borrower to, and the Borrower shall
thereupon, deposit in a non-interest-bearing account with the Administrative
Agent, as cash collateral for its Obligations under the Loan Documents, an
amount equal to the maximum amount currently or at any time thereafter available
to be drawn on all outstanding Letters of Credit, and the Borrower hereby
pledges to the Administrative Agent and the Banks, and grants to the
Administrative Agent and the Banks a security interest in, all such cash as
security for such Obligations. Upon the curing of all existing Events of Default
to the satisfaction of the Required Banks, the Administrative Agent shall return
such cash collateral to the Borrower; and
8.2.2 BANKRUPTCY, INSOLVENCY OR REORGANIZATION PROCEEDINGS.
If an Event of Default specified under Section 8.1.14
[Involuntary Proceedings] or 8.1.15 [Voluntary Proceedings] shall occur, the
Commitments shall automatically terminate and be of no further force and effect,
the Lenders shall be under no further obligation to make Revolving Credit Loans,
Swing Loans or Bid Loans hereunder or to issue Letters of Credit and the unpaid
principal amount of the Loans then outstanding and all interest accrued thereon,
any unpaid fees and all other Indebtedness of the Borrower to the Lenders
hereunder and thereunder shall be immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived; and
8.2.3 SET-OFF.
If an Event of Default shall occur and be continuing, any
Lender to whom any Obligation is owed by any Loan Party hereunder or under any
other Loan Document or any participant of such Lender which has agreed in
writing to be bound by the provisions of Section 9.13 [Equalization of Lenders]
and any branch, Subsidiary or Affiliate of such Lender or participant anywhere
in the world shall have the right, in addition to all other rights and remedies
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available to it, without notice to such Loan Party, to set-off against and apply
to the then unpaid balance of all the Loans and all other Obligations of the
Borrower and the other Loan Parties hereunder or under any other Loan Document
any debt owing to, and any other funds held in any manner for the account of,
the Borrower or such other Loan Party by such Lender or participant or by such
branch, Subsidiary or Affiliate, including all funds in all deposit accounts
(whether time or demand, general or special, provisionally credited or finally
credited, or otherwise) now or hereafter maintained by the Borrower or such
other Loan Party for its own account (but not including funds held in custodian
or trust accounts) with such Lender or participant or such branch, Subsidiary or
Affiliate. Such right shall exist whether or not any Lender or the
Administrative Agent shall have made any demand under this Agreement or any
other Loan Document, whether or not such debt owing to or funds held for the
account of the Borrower or such other Loan Party is or are matured or unmatured
and regardless of the existence or adequacy of any Guaranty or any other
security, right or remedy available to any Lender 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 Committed Loans pursuant to any of the foregoing provisions of this Section
8.2, the Agents or any Lender, if owed any amount with respect to the Loans, may
proceed to protect and enforce its rights by suit in equity, action at law
and/or other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Agreement or the other Loan Documents,
including as permitted by applicable Law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of any Agent or such Lender; 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 the exercise of any remedy by the
Administrative Agent shall be applied as follows:
(i) first, to reimburse the Administrative Agent and
the Lenders for out-of-pocket costs, expenses and disbursements, including
reasonable attorneys' and paralegals' fees and legal expenses, incurred by the
Administrative Agent or the Lenders in connection with collection of any
Obligations of any of the Loan Parties under any of the Loan Documents;
(ii) second, to the repayment of all Indebtedness then
due and unpaid of the Loan Parties to the Lenders incurred under this Agreement
or any of the other Loan Documents, whether of principal, interest, fees,
expenses or otherwise, in such manner as the Administrative Agent may determine
in its discretion; and
(iii) the balance, if any, as required by Law.
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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 Lenders under the Loan Documents or applicable Law.
8.3 RIGHT OF COMPETITIVE BID LOAN LENDERS.
If any Event of Default shall occur and be continuing, the Lenders
which have any Bid Loans then outstanding to the Borrower (the "Bid Loan
Lenders") shall not be entitled to accelerate payment of the Bid Loans or to
exercise any right or remedy related to the collection of the Bid Loans until
the Commitments shall be terminated hereunder pursuant to Section 8.2. Upon such
a termination of the Commitments, references to Revolving Credit Loans in
Section 8.2 shall be deemed to apply also to the Bid Loans and the Bid Loan
Lenders shall be entitled to all enforcement rights given to a holder of a
Revolving Credit Loan in Section 8.2.
9. THE AGENTS
9.1 APPOINTMENT.
Each Lender hereby designates, appoints and authorizes: (i) PNC Bank
to act as Administrative Agent for such Lender under this Agreement and the
other Loan Documents for such Lender under this Agreement and to execute and
deliver or accept on behalf of each of the Lenders the other Loan Documents, and
(ii) authorizes each of PNC Bank and ▇▇▇▇▇▇ to act as Agent for such Lender
under this Agreement. Each Lender 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 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 Lenders 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.
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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 Lender; 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 Lender 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 Lender; (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 nor
any Agent shall have any duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before the making of
any 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
Lender 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
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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, 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 Lender for any action taken or omitted to be taken by it or
them hereunder, or in connection herewith including pursuant to any Loan
Document, unless caused by its or their own gross negligence or willful
misconduct, (b) be responsible in any manner to any of the Lenders for the
effectiveness, enforceability, genuineness, validity or the due execution of
this Agreement or any other Loan Documents or for any recital, representation,
warranty, document, certificate, report or statement herein or made or furnished
under or in connection with this Agreement or any other Loan Documents, or (c)
be under any obligation to any of the Lenders to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions
hereof or thereof on
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the part of the Loan Parties, or the financial condition of the Loan Parties, or
the existence or possible existence of any Event of Default or Potential
Default. No claim may be made by any of the Loan Parties, any Lender, the
Administrative Agent or any Agent or any of their respective Subsidiaries
against the Administrative Agent, any Agent, any Lender or any of their
respective directors, officers, employees, agents, attorneys or Affiliates, or
any of them, for any special, indirect or consequential damages or, to the
fullest extent permitted by Law, for any punitive damages in respect of any
claim or cause of action (whether based on contract, tort, statutory liability,
or any other ground) based on, arising out of or related to any Loan Document or
the transactions contemplated hereby or any act, omission or event occurring in
connection therewith, including the negotiation, documentation, administration
or collection of the Loans, and the Borrower (for itself and on behalf of each
of its Subsidiaries), the Administrative Agent, each Agent and each Lender
hereby waives, releases and agrees never to ▇▇▇ upon any claim for any such
damages, whether such claim now exists or hereafter arises and whether or not it
is now known or suspected to exist in its favor. Each Lender agrees that, except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent or any Agent hereunder or given to the
Administrative Agent or any Agent for the account of or with copies for the
Lenders, 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 Lender 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.
9.7 REIMBURSEMENT AND INDEMNIFICATION OF AGENTS BY THE LENDERS.
Each Lender 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 Revolving
Credit Ratable Share and/or Term Loan Ratable Share, as applicable, 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
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
(a) if the same results from the Administrative Agent's or any Agent's gross
negligence or willful misconduct, as the case may be, or (b) if such Lender was
not given notice of the subject claim and the opportunity to participate in the
defense thereof, at its expense (except that such Lender shall remain liable to
the extent such failure to give notice does not result in a loss to the Lender),
or (c) if the same results from a compromise and settlement agreement entered
into without the consent of such Lender, which shall not be unreasonably
withheld. In addition, each Lender agrees promptly upon demand to reimburse the
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
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proportion to its Revolving Credit Ratable Share and its Term Loan Ratable
Share, as applicable, 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 Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
9.9 NOTICE OF DEFAULT.
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."
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 Revolving Credit Commitment, Term Loan
Commitment, the Revolving Credit Loans, the Term Loans, the Swing Loans, the
issuance of any Letter of Credit and any Bid 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 Lenders and their respective Affiliates may, without liability to
account, except as prohibited herein, make loans to, accept deposits from,
discount drafts for, act as trustee under indentures of, and generally engage in
any kind of banking or trust business with
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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 Lender, as though such Lender
were not a Lender hereunder. The Lenders 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 Lenders.
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 LENDERS.
The Lenders and the holders of any participations in any Commitments
or Loans or other rights or obligations of a Lender hereunder agree among
themselves that, with respect to all amounts received by any Lender or any such
holder for application on any Obligation hereunder or under any such
participation, whether received by voluntary payment, by realization upon
security, by the exercise of the right of set-off or banker's lien, by
counterclaim or by any other non-pro rata source, equitable adjustment will be
made in the manner stated in the following sentence so that, in effect, all such
excess amounts will be shared ratably among the Lenders and such holders in
proportion to their interests in payments on the Loans, except as otherwise
provided in Sections 3.4.3 [Administrative Agent's and Lender's Rights], 4.4.2
[Replacement of a Lender] or 4.5 [Additional Compensation in Certain
Circumstances]. The Lenders or any such holder receiving any such amount shall
purchase for cash from each of the other Lenders an interest in such Lender's
Loans in such amount as shall result in a ratable participation by the Lenders
and each such holder in the aggregate unpaid amount of the Loans, PROVIDED that
if all or any portion of such excess amount is thereafter recovered from the
Lender or the holder making such purchase, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by law (including court order) to be
paid by the Lender or the holder making such purchase.
9.14 SUCCESSOR 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
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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 Lender], 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 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 FEES.
The Borrower shall pay to the Administrative Agent a nonrefundable
fee (the "Bid Loan Processing Fee") in connection with processing Bid Loans and
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 Lender 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 Lender 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
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with the Administrative Agent by the Lenders and whether such funding occurs
before or after the time on which Lenders are required to deposit the proceeds
of such 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 Lender, the Administrative
Agent shall be entitled to recover such amount on demand from such Lender (or,
if such Lender fails to pay such amount forthwith upon such demand from the
Borrower) together with interest thereon, in respect of each day during the
period commencing on the date such amount was made available to the Borrower and
ending on the date the 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 Lender whether in respect of the Loans, fees or any other amounts
due to the Lenders under this Agreement. In the event an error in computing any
amount payable to any Lender is made, the Administrative Agent, the Borrower and
each affected Lender shall, forthwith upon discovery of such error, make such
adjustments as shall be required to correct such error, and any compensation
therefor will be calculated at the Federal Funds Effective Rate.
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
Lenders, and the Loan Parties shall not have any rights to rely on or enforce
any of the provisions hereof. In performing its functions and duties under this
Agreement, the Administrative Agent and each Agent shall act solely as the
Administrative Agent or Agent, as the case may be, of the Lenders 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 Lenders, and the Borrower, on behalf of the
Loan Parties, may from time to time enter into written agreements amending or
changing any provision of this Agreement or any other Loan Document or the
rights of the Lenders or the Loan Parties hereunder or thereunder, or may grant
written waivers or consents to a departure from the due performance of the
Obligations of the Loan Parties hereunder or thereunder. Any such agreement,
waiver or consent made with such written consent shall be effective to bind all
the Lenders and the Loan Parties; PROVIDED, that no such agreement, waiver or
consent may be made which will:
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10.1.1 INCREASE OF REVOLVING CREDIT COMMITMENTS; EXTENSION
OF EXPIRATION DATE; MODIFICATION OF TERMS OF PAYMENT.
Without the written consent of the Required Banks and all
Banks which have a Revolving Credit Commitment, increase the amount of the
Revolving Credit Commitment of any Bank hereunder, extend the Expiration Date,
whether or not any Revolving Credit Loans are outstanding, extend the time for
payment of principal or interest of any Revolving Credit Loan, the Facility Fee
or any other fee payable to any Bank which has a Revolving Credit Commitment,
reduce the principal amount of or the rate of interest borne by any Revolving
Credit Loan, reduce the rate of the Facility Fee or any other fee payable to any
Bank which has a Revolving Credit Commitment;
10.1.2 INCREASE OF TERM LOAN COMMITMENTS; EXTENSION OF TERM
LOAN EXPIRATION DATE; MODIFICATION OF TERMS OF PAYMENT.
Without the written consent of the Required Banks and all
Banks which have a Term Loan Commitment, increase the amount of the Term Loan
Commitment of any Bank hereunder, extend the Term Loan Expiration Date, whether
or not any Term Loans are outstanding, extend the time for payment of principal
or interest of any Term Loan, or any fee payable to any Bank which has a Term
Loan Commitment, reduce the principal amount of or the rate of interest borne by
any Term Loan, reduce the rate of the Facility Fee or any other fee payable to
any Bank which has a Term Loan Commitment;
10.1.3 RELEASE OF GUARANTOR.
Without the written consent of all Banks, 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 and that at the time of the requested release no Letters
of Credit are outstanding directly or indirectly for the benefit of such
Subsidiary nor are any Reimbursement Obligations due and owing by such
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
10.1.4 MISCELLANEOUS.
Without the written consent of all Banks, amend Sections 4.2
[Pro Rata Treatment of Banks], 9.6 [Exculpatory Provisions, etc.] or 9.13
[Equalization of Lenders] or this Section 10.1, alter any provision regarding
the pro rata treatment of the Lenders, change the definition of Required Banks,
or change any requirement providing for the Lenders, all the Lenders or the
Required 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 shall be effective without
the written consent of such Agent; no
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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; and no agreement,
waiver or consent which would modify the interests, rights or obligations of any
Issuing Bank as the issuer of Letters of Credit shall be effective without the
written consent of such Issuing Bank.
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 Lender in exercising any right, power, remedy or
privilege under this Agreement or any other Loan Document shall affect any other
or future exercise thereof or operate as a waiver thereof, nor shall any single
or partial exercise thereof or any abandonment or discontinuance of steps to
enforce such a right, power, remedy or privilege preclude any further exercise
thereof or of any other right, power, remedy or privilege. The rights and
remedies of the Administrative Agent, each Agent and the Lenders under this
Agreement and any other Loan Documents are cumulative and not exclusive of any
rights or remedies which they would otherwise have. Any waiver, permit, consent
or approval of any kind or character on the part of any Lender of any breach or
default under this Agreement or any such waiver of any provision or condition of
this Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing.
10.3 REIMBURSEMENT AND INDEMNIFICATION OF LENDERS BY THE BORROWER;
TAXES.
The Borrower agrees unconditionally upon demand to pay or reimburse
to each Lender (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 Lender harmless
against (i) liability for the payment of all reasonable out-of-pocket costs,
expenses and disbursements (including fees and expenses of outside counsel) for
each Lender (except with respect to (A) and (B) below), incurred by such Lender
(a) in connection with the administration and interpretation of this Agreement,
and other instruments and documents to be delivered hereunder, (b) relating to
any amendments, waivers or consents pursuant to the provisions hereof, (c) in
connection with the enforcement of this Agreement or any other Loan Document, or
collection of amounts due hereunder or thereunder or the proof and allowability
of any claim arising under this Agreement or any other Loan Document, whether in
bankruptcy or receivership proceedings or otherwise, 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 Lender, 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 such Lender hereunder or thereunder, PROVIDED that the Borrower shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (A) if
the same results from such Lender's gross negligence or willful misconduct,
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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 Lenders will attempt to
minimize the fees and expenses of legal counsel for the Lenders which are
subject to reimbursement by the Borrower hereunder by considering the use of one
law firm to represent the Lenders, 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 Lender 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 Lenders harmless from and against any and all present
or future claims, liabilities or losses with respect to or resulting from any
omission to pay or delay in paying any such taxes, fees or impositions.
10.4 HOLIDAYS.
Whenever payment of a 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 Revolving Credit Loans, Bid Loans and Swing Loans
shall be due on the Business Day preceding the Expiration Date if the Expiration
Date is not a Business Day and the Term Loans shall be due on the Business Day
preceding the Term Loan Expiration Date if the Term Loan 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 Lender shall have the right from time to time, without
notice to the Borrower, to deem any branch, Subsidiary or Affiliate (which for
the purposes of this Section 10.5 shall mean any corporation or association
which is directly or indirectly controlled by or is under direct or indirect
common control with any corporation or association which directly or indirectly
controls such Lender) of such Lender to have made, maintained or funded any 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 been in the absence of
such change. Notional funding offices may be selected by each Lender without
regard to such Lender's actual methods of making, maintaining or funding the
Loans or any sources of funding actually used by or available to such Lender.
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10.5.2 ACTUAL FUNDING.
Each Lender shall have the right from time to time to make or
maintain any Loan by arranging for a branch, Subsidiary or Affiliate of such
Lender to make or maintain such Loan subject to the last sentence of this
Section 10.5.2. If any Lender causes a branch, Subsidiary or Affiliate to make
or maintain any part of the 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 Lender, but in no event shall any Lender's use of
such a branch, Subsidiary or Affiliate to make or maintain any part of the Loans
hereunder cause such Lender or such branch, Subsidiary or Affiliate to incur any
cost or expenses payable by the Borrower hereunder or require the Borrower to
pay any other compensation to any Lender (including any expenses incurred or
payable pursuant to Section 4.5 [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 Lender 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 Lenders of the receipt by
it of any such notice. Each Designated Lender appoints its Designating Bank as
its agent for the purpose of delivering and receiving all notices hereunder as
more fully set forth in Section 10.11 [Successors and Assigns] and in its
Designation Agreement with such Designating Bank. 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.
Each Letter of Credit and Section 2.10 [Letter of Credit
Subfacility] shall be subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be revised or amended from time to time,
and to the extent not inconsistent therewith, the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles,
and the balance of 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 Lenders, the making of Loans, issuance of Letters of Credit, 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 or request Letters
of Credit hereunder and until termination of the Commitments and payment in full
of the Loans and expiration or termination of all Letters of Credit. 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 Lenders] and 10.3 [Reimbursement
and Indemnification of Lenders by the Borrower, etc.], shall survive payment in
full of the Loans, expiration or termination of the Letters of Credit 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 Lenders, 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
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consent of all of the Banks (each on its own behalf and on behalf of any
Designated Lenders of such Bank).
10.11.2 ASSIGNMENTS AND PARTICIPATIONS BY BANKS OTHER THAN
ASSIGNMENTS OF BID LOANS AMONG DESIGNATING BANKS AND
DESIGNATED LENDERS.
This Section shall apply to any assignment or participation by
a Lender of its Loans, Letters of Credit Outstanding or Commitments except for
assignments or designations of Bid Loans among Designating Banks or Designated
Lenders described in Section 10.11.3. Each Bank may, at its own cost, make
assignments of all or any part of its Revolving Credit Commitment and Revolving
Credit Loans, Term Loan Commitment and Term Loans, Bid Loans and its Revolving
Credit Ratable Share of Letters of Credit Outstanding to one or more banks or
other entities, subject to the consent of the Borrower (which consent shall not
be required during any period in which an Event of Default exists), the
applicable Issuing Banks, 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 Banks Loans or Commitments) and a Lender
may assign a Bid Loan to another Person only if either such Lender is a Bank and
is simultaneously assigning all or a portion of its Revolving Credit Commitment
to such Person, or the assignee is already a Bank hereunder. Each Lender may, at
its own cost, grant participations in all or any part of its Revolving Credit
Commitment and the Revolving Credit Loans, Term Loan Commitment and Term Loans,
and Bid Loans made by it and of its Revolving Credit Ratable Share of Letters of
Credit Outstanding 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 or a Revolving Credit 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 any Revolving Credit Note or Term
Note subject to such assignment, the Borrower shall execute and deliver a new
Revolving Credit Note or Term Note to the assignee in an amount equal to the
amount of the Revolving Credit Commitment or Term Loan Commitment assumed by it
and a new Revolving Credit Note or Term Note to the assigning Bank in an amount
equal to the Revolving Credit Commitment or Term Loan Commitment retained by it
hereunder. The assigning Lender shall surrender its Bid Note if it is assigning
all of its Revolving Credit Commitment. The Borrower shall execute and deliver
to the assignee a Bid Note in the form of EXHIBIT 1.1(B). Any assigning Lender
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 Lender in respect of such participation
to be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto and not to include 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 Lender's obligations under this Agreement or any other Loan
Document shall remain unchanged, and all amounts payable by any Loan Party
hereunder
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or thereunder shall be determined as if such Lender had not sold such
participation. Any assignee or participant which is not incorporated under the
Laws of the United States of America or a state thereof shall deliver to the
Borrower and the Administrative Agent the form of certificate described in
Section 10.17 relating to federal income tax withholding. Each Lender may
furnish any publicly available information concerning any Loan Party or its
Subsidiaries and any other information concerning any Loan Party or its
Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees or participants), PROVIDED that
such assignees and participants agree to be bound by the provisions of Section
10.12.
10.11.3 ASSIGNMENTS OF BID LOANS AMONG DESIGNATING
BANKS AND DESIGNATED LENDERS.
10.11.3.1 ASSIGNMENTS TO DESIGNATED LENDERS.
Any Bank (each a "Designating Bank") may at any time,
subject to the consent of the Borrower, which consent shall not be unreasonably
withheld, and subject to the terms of this Section 10.11.3.1, designate one or
more Designated Lenders to fund Bid Loans which the Designating Bank is required
to fund. The provisions of Section 10.11.2 [Assignments and Participations,
etc.] shall not apply to any such designation. No Bank shall be entitled to make
more than two such designations. The parties to each such designation shall
execute and deliver to the Administrative Agent, for its acceptance, a
Designation Agreement. Upon its receipt of an appropriately completed
Designation Agreement executed by a Designating Bank, a designee representing
that it is a Designated Lender and the Borrower, the Administrative Agent will
accept such Designation Agreement. From and after the later of the date on which
the Administrative Agent receives the executed Designation Agreement and the
effective date specified in the Designation Agreement, the Designated Lender
shall become a party to this Agreement with a right to make any Bid Loan on
behalf of its Designating Bank pursuant to Section 2.9 after the Borrower has
accepted a Bid (or a portion thereof) of the Designating Bank. The Designating
Bank shall not be obligated to designate its Designated Lender to fund any Bid
Loan, and such Designated Lender shall not be obligated to fund any Bid Loan,
each such designation being subject to the agreement of the Designating Bank and
its Designated Lender and to be made at the time that such Bid Loan is made.
Each Designating Bank shall serve as the agent of the Designated Lender for
purposes of giving and receiving all communications and notices and taking all
actions hereunder, including without limitation votes, approvals, waivers,
consents and amendments under or relating to this Agreement or the other Loan
Documents. Any such notice, communication, vote, approval, waiver, consent or
amendment shall be signed by the Designating Bank as agent for the Designated
Lender and shall not be signed by the Designated Lender. The Borrower, the
Agents, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. Any
Designated Lender 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 [Tax
Withholding Clause] relating to federal income tax withholding.
- 104 -
10.11.3.2 ASSIGNMENTS BY DESIGNATED LENDERS.
Any Designated Lender may assign its Bid Loan to its
Designating Bank or to another Designated Lender designated by such Designating
Bank and such assignment shall not be subject to the requirements of Section
10.11.2 [Assignments and Participations, etc.], PROVIDED that the Designated
Lender and Designating Bank shall notify the Administrative Agent promptly of
such assignment.
10.11.3.3 WAIVERS AND CERTAIN MATTERS REGARDING
CONDUITS AS DESIGNATING BANKS.
Notwithstanding any provision of this Agreement or
any other Loan Document to the contrary, neither the Administrative Agent, any
Agent, the Borrower nor any Lender shall institute or join any other person in
instituting against Wood Street Funding Corporation, a Delaware corporation (and
a Designating Bank, designated by PNC Bank) or against any similar conduit
established by any other Designated Lender which has been designated by such
Designated Lender as a Designating Bank, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and a day after the
later to occur of the Expiration Date or the Term Loan Expiration Date.
10.11.4 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 Lender may
furnish any publicly available information concerning any Loan Party or its
Subsidiaries and any other information concerning any Loan Party or its
Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees or participants), provided that
such assignees and participants agree to be bound by the provisions of Section
10.12 [Confidentiality].
10.11.5 ASSIGNMENTS BY LENDERS TO FEDERAL RESERVE Banks.
Notwithstanding any other provision in this Agreement, any
Lender may at any time pledge or grant a security interest in all or any portion
of its rights under this Agreement, its 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 Lender of its obligations
hereunder or under any other Loan Document.
- 105 -
10.12 CONFIDENTIALITY.
10.12.1 GENERAL.
The Agents, the Administrative Agent and the Lenders each
agree to keep confidential all information obtained from any Loan Party or its
Subsidiaries which is nonpublic and confidential or proprietary in nature
(including any information the Borrower specifically designates 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
Lenders shall be permitted to disclose such information (i) to outside legal
counsel, accountants and other professional advisors who need to know such
information in connection with the 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 or,
with notice to the Borrower as permitted by applicable Law, as otherwise
required by applicable Law or by any subpoena or similar 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, or (v) if the Borrower
shall have consented to such disclosure.
10.12.2 SHARING INFORMATION WITH AFFILIATES OF THE LENDERS.
The Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Borrower or one or more of its Affiliates (in connection with this Agreement
or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such
Lender and the Borrower (on its own behalf and on behalf of its Subsidiaries)
hereby authorizes each Lender to share any information delivered to such Lender
by the Borrower and its Subsidiaries pursuant to this Agreement, or in
connection with the decision of such Lender to enter into this Agreement, to any
such Subsidiary or Affiliate of such Lender, it being understood that any such
Subsidiary or Affiliate of any Lender receiving such information shall be bound
by the provisions of Section 10.12.1 as if it were a Lender 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 LENDER'S CONSENT.
Whenever the Administrative Agent's, any Agent's or any Lender's
consent is required to be obtained under this Agreement or any of the other Loan
Documents as a condition
- 106 -
to any action, inaction, condition or event, the Administrative Agent, each
Agent and each Lender shall be authorized to give or withhold such consent in
its sole and absolute discretion and to condition its consent upon the giving of
additional collateral, the payment of money or any other matter.
10.15 EXCEPTIONS.
The representations, warranties and covenants contained herein shall
be independent of each other, and no exception to any representation, warranty
or covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
THE BORROWER HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY AND THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO THE
BORROWER AT THE ADDRESS PROVIDED FOR IN SECTION 10.6 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 LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE COLLATERAL TO THE FULL EXTENT PERMITTED BY LAW.
10.17 TAX WITHHOLDING CLAUSE.
Each Lender or assignee or participant of a Lender 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 Lender, 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 Lender, assignee or participant indicating that no such exemption or
reduced rate is allowable with respect to such payments. Each Lender, 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 Lender which is
- 107 -
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 Lender; (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 Lender, 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 Lender, 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 Lender,
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] or any Subsidiary of the Borrower which is a member of the Arch
Coal Group which has not previously executed a Guarantor Joinder but which
desires to have a Letter of Credit issued for its benefit pursuant to Section
2.10.1 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; and (ii) documents in the forms described in Section 6.1
[First Loans and Letters of Credit] modified as appropriate to relate to such
Subsidiary. With respect to Subsidiaries (other than Excluded Subsidiaries)
which become Significant Subsidiaries, the Borrower shall deliver such Guarantor
Joinder and related documents to the 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.
[SIGNATURE PAGES FOLLOW]
- 108 -
[SIGNATURE PAGE 1 OF 22 TO 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 COAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Singer By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------- ------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Singer ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Assistant Secretary Senior Vice President/Chief Financial
Officer/Treasurer
[Seal]
[SIGNATURE PAGE 2 OF 22 TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent
and Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
SIGNATURE PAGE 3 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, individually and as
Syndication Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
--------------------------------
[SIGNATURE PAGE 4 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK,
individually and as Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
[SIGNATURE PAGE 5 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Senior Vice President
--------------------------------
[SIGNATURE PAGE 6 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
BANK OF MONTREAL
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Director
--------------------------------
[SIGNATURE PAGE 7 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Vice President
--------------------------------
[SIGNATURE PAGE 8 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ▇▇▇▇▇
--------------------------------
Title: F.C.H. ▇▇▇▇▇
--------------------------------
Senior Manager Loan Operations
--------------------------------
[SIGNATURE PAGE 9 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Director
--------------------------------
[SIGNATURE PAGE 10 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Vice President
--------------------------------
[SIGNATURE PAGE 11 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Deputy General Manager
--------------------------------
[SIGNATURE PAGE 12 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Senior Vice President
--------------------------------
Midwest Regional Manager
--------------------------------
[SIGNATURE PAGE 13 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Vice President
--------------------------------
[SIGNATURE PAGE 14 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
INTENTIONALLY OMITTED
[SIGNATURE PAGE 15 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
BANK ONE, KENTUCKY, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Senior Vice President
--------------------------------
[SIGNATURE PAGE 16 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Joint General Manager
--------------------------------
[SIGNATURE PAGE 17 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Senior Vice President
--------------------------------
Deputy General Manager
--------------------------------
[SIGNATURE PAGE 18 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Vice President
--------------------------------
[SIGNATURE PAGE 19 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
ABN AMRO BANK, N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Group Vice President
--------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
--------------------------------
[SIGNATURE PAGE 20 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
DRESDNER BANK AG NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
----------------------------------
By: /s/ P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
By: P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
----------------------------------
[SIGNATURE PAGE 21 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
BANK HAPOALIM B.M. PHILADELPHIA BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President/Controller
--------------------------------
[SIGNATURE PAGE 22 OF 22 TO THE ARCH COAL, INC. CREDIT AGREEMENT]
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Executive Vice President
--------------------------------