EXHIBIT 10.2
$350,000,000 REVOLVING CREDIT FACILITY
AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
ARCH COAL, INC.
AND
THE LENDERS PARTY HERETO
AND
PNC BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
AND
JPMORGAN CHASE BANK,
AS SYNDICATION AGENT
AND
CITIBANK, N.A.,
CREDIT LYONNAIS NEW YORK BRANCH,
AND
U.S. BANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENTS
AUGUST 20, 2004
================================================================================
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC.
AND
PNC CAPITAL MARKETS, INC.,
AS LEAD ARRANGERS AND JOINT BOOKRUNNERS
TABLE OF CONTENTS
Section Page
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1. CERTAIN DEFINITIONS................................................................................................. 1
1.1 Certain Definitions....................................................................................... 1
1.2 Construction.............................................................................................. 37
1.2.1 Number; Inclusion............................................................................ 37
1.2.2 Determination................................................................................ 37
1.2.3 Administrative Agent's Discretion and Consent................................................ 37
1.2.4 Documents Taken as a Whole................................................................... 37
1.2.5 Headings..................................................................................... 37
1.2.6 Implied References to This Agreement......................................................... 37
1.2.7 Persons...................................................................................... 37
1.2.8 Modifications to Documents................................................................... 38
1.2.9 From, To and Through......................................................................... 38
1.2.10 Shall; Will.................................................................................. 38
1.3 Accounting Principles..................................................................................... 38
2. REVOLVING CREDIT AND SWING LOAN FACILITIES.......................................................................... 39
2.1 Revolving Credit Commitments.............................................................................. 39
2.1.1 Revolving Credit Loans....................................................................... 39
2.1.2 Swing Loan Commitment........................................................................ 39
2.2 Nature of Banks' Obligations With Respect to Revolving Credit Loans....................................... 39
2.3 Fees; Commitment Fee...................................................................................... 39
2.4 Loan Requests............................................................................................. 40
2.4.1 Committed Loan Requests...................................................................... 40
2.4.2 Swing Loan Requests.......................................................................... 40
2.5 Making Revolving Credit Loans and Swing Loans............................................................. 41
2.5.1 Making Swing Loans........................................................................... 41
2.6 Swing Loan Note........................................................................................... 41
2.7 Use of Proceeds........................................................................................... 41
2.8 Borrowings to Repay Swing Loans........................................................................... 42
2.9 Letter of Credit Subfacility.............................................................................. 42
2.9.1 Issuance of Letters of Credit................................................................ 42
2.9.2 Letter of Credit Fees........................................................................ 43
2.9.3 Participations in Letters of Credit; Disbursements, Reimbursement............................ 43
2.9.4 Documentation................................................................................ 44
2.9.5 Determinations to Honor Drawing Requests..................................................... 45
2.9.6 Nature of Participation and Reimbursement Obligations........................................ 45
2.9.7 Indemnity.................................................................................... 46
2.9.8 Liability for Acts and Omissions............................................................. 47
3. INTEREST RATES...................................................................................................... 48
3.1 Interest Rate Options..................................................................................... 48
3.1.1 Interest Rate Options........................................................................ 49
3.1.2 Rate Quotations.............................................................................. 49
3.1.3 Change in Fees or Interest Rates............................................................. 49
TABLE OF CONTENTS
Section Page
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3.2 Interest Periods.......................................................................................... 50
3.2.1 Ending Date and Business Day................................................................. 50
3.2.2 Amount of Borrowing Tranche.................................................................. 50
3.2.3 Termination Before Applicable Expiration Date............................................... 50
3.2.4 Renewals..................................................................................... 50
3.3 Interest After Default.................................................................................... 50
3.3.1 Letter of Credit Fees, Interest Rate......................................................... 51
3.3.2 Other Obligations............................................................................ 51
3.3.3 Acknowledgment............................................................................... 51
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available............................ 51
3.4.1 Unascertainable.............................................................................. 51
3.4.2 Illegality; Increased Costs; Deposits Not Available.......................................... 51
3.4.3 Administrative Agent's and Lender's Rights................................................... 52
3.5 Selection of Interest Rate Options........................................................................ 52
4. PAYMENTS ........................................................................................................... 53
4.1 Payments.................................................................................................. 53
4.2 Pro Rata Treatment of Banks............................................................................... 53
4.3 Interest Payment Dates.................................................................................... 54
4.4 Prepayments............................................................................................... 54
4.4.1 Voluntary Prepayments........................................................................ 54
4.4.2 Replacement of a Lender...................................................................... 55
4.4.3 Change of Lending Office..................................................................... 56
4.4.4 Voluntary Reduction of Commitments........................................................... 56
4.4.5 Mandatory Prepayment Upon Sale of Assets; Mandatory Reduction of Revolving Credit
Commitments.................................................................................. 56
4.5 Additional Compensation in Certain Circumstances.......................................................... 57
4.5.1 Increased Costs or Reduced Return Resulting From Taxes, Reserves, Capital Adequacy
Requirements, Expenses, Etc.................................................................. 57
4.5.2 Indemnity.................................................................................... 58
4.6 Notes..................................................................................................... 58
4.7 Settlement Date Procedures................................................................................ 58
4.8 Taxes..................................................................................................... 59
4.8.1 No Deductions................................................................................ 59
4.8.2 Stamp Taxes.................................................................................. 59
4.8.3 Indemnification for Taxes Paid by Lenders.................................................... 59
4.8.4 Certificate.................................................................................. 60
4.8.5 Survival..................................................................................... 60
4.8.6 Refund and Contest........................................................................... 60
5. REPRESENTATIONS AND WARRANTIES...................................................................................... 60
5.1 Representations and Warranties............................................................................ 60
5.1.1 Organization and Qualification............................................................... 60
5.1.2 Shares of Borrower; Subsidiaries; and Subsidiary Shares...................................... 61
5.1.3 Power and Authority.......................................................................... 61
5.1.4 Validity and Binding Effect.................................................................. 62
5.1.5 No Conflict.................................................................................. 62
5.1.6 Litigation................................................................................... 63
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TABLE OF CONTENTS
Section Page
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5.1.7 Financial Statements......................................................................... 63
5.1.8 Use of Proceeds; Margin Stock................................................................ 63
5.1.9 Full Disclosure.............................................................................. 64
5.1.10 Taxes........................................................................................ 64
5.1.11 Consents and Approvals....................................................................... 65
5.1.12 No Event of Default; Compliance With Instruments and Material Contracts...................... 65
5.1.13 Insurance.................................................................................... 65
5.1.14 Compliance With Laws......................................................................... 65
5.1.15 Investment Companies; Regulated Entities..................................................... 66
5.1.16 Plans and Benefit Arrangements............................................................... 66
5.1.17 Employment Matters........................................................................... 67
5.1.18 Environmental Matters........................................................................ 67
5.1.19 Senior Debt Status........................................................................... 67
5.1.20 Title to Properties.......................................................................... 68
5.1.21 Coastal Agreement............................................................................ 68
5.1.22 Patents, Trademarks, Copyrights, Licenses, Etc............................................... 68
5.1.23 Security Interests and Mortgage Liens........................................................ 68
5.1.24 Status of Pledged Collateral................................................................. 69
5.1.25 Solvency..................................................................................... 69
5.1.26 Anti-Terrorism Laws.......................................................................... 70
5.2 Continuation of Representations........................................................................... 71
6. CONDITIONS TO AMENDMENT AND RESTATEMENT OF ORIGINAL CREDIT AGREEMENT;
CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT .................................................................... 71
6.1 Conditions to Amendment and Restatement of Original Credit Agreement...................................... 71
6.1.1 Officer's Certificate........................................................................ 71
6.1.2 Secretary's Certificate...................................................................... 71
6.1.3 Delivery of Loan Documents................................................................... 72
6.1.4 Opinion of Counsel........................................................................... 72
6.1.5 Legal Details................................................................................ 73
6.1.6 Payment of Fees.............................................................................. 73
6.1.7 Consents..................................................................................... 73
6.1.8 Officer's Certificate Regarding No Material Adverse Change and Solvency...................... 73
6.1.9 No Violation of Laws......................................................................... 74
6.1.10 No Actions or Proceedings.................................................................... 74
6.1.11 Insurance.................................................................................... 74
6.1.12 Joinder by Vulcan Joinder Company to Loan Documents.......................................... 74
6.1.13 Satisfactory Environmental Review............................................................ 74
6.1.14 UCC, Lien and Judgment Searches.............................................................. 74
6.1.15 Filing Receipts.............................................................................. 75
6.1.16 Consummation of Acquisitions; Repayment of Certain Indebtedness.............................. 75
6.1.17 Triton EBITDDA............................................................................... 76
6.1.18 Confirmation of Loan Documents............................................................... 76
6.1.19 Amended and Restated Schedules............................................................... 76
6.1.20 Certain Amended and Restated Exhibits........................................................ 76
6.2 Each Additional Loan or Letter of Credit.................................................................. 76
7. COVENANTS .......................................................................................................... 77
7.1 Affirmative Covenants..................................................................................... 77
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TABLE OF CONTENTS
Section Page
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7.1.1 Preservation of Existence, Etc............................................................... 77
7.1.2 Payment of Liabilities, Including Taxes, Etc................................................. 77
7.1.3 Maintenance of Insurance..................................................................... 78
7.1.4 Maintenance of Properties and Leases......................................................... 78
7.1.5 Visitation Rights............................................................................ 78
7.1.6 Keeping of Records and Books of Account...................................................... 79
7.1.7 Plans and Benefit Arrangements............................................................... 79
7.1.8 Compliance With Laws......................................................................... 79
7.1.9 Use of Proceeds.............................................................................. 79
7.1.10 Operation of Mines........................................................................... 80
7.1.11 Maintenance of Material Contracts............................................................ 80
7.1.12 Further Assurances........................................................................... 80
7.1.13 Subordination of Intercompany Loans.......................................................... 80
7.1.14 Additional Collateral........................................................................ 80
7.1.15 Tax Shelter Regulations...................................................................... 81
7.1.16 Anti-Terrorism Laws.......................................................................... 81
7.2 Negative Covenants........................................................................................ 82
7.2.1 Indebtedness................................................................................. 82
7.2.2 Liens........................................................................................ 83
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions.......................................... 83
7.2.4 Dispositions of Assets or Subsidiaries....................................................... 85
7.2.5 Affiliate Transactions....................................................................... 87
7.2.6 Subsidiaries, Partnerships and Joint Ventures................................................ 87
7.2.7 Continuation of or Change in Business........................................................ 88
7.2.8 Plans and Benefit Arrangements............................................................... 88
7.2.9 Off-Balance Sheet Financing and Capital Leases............................................... 88
7.2.10 Maximum Leverage Ratio....................................................................... 88
7.2.11 Minimum Fixed Charge Coverage Ratio.......................................................... 89
7.2.12 Minimum Net Worth............................................................................ 90
7.2.13 No Restriction on Dividends or Certain Loans................................................. 90
7.2.14 Loans and Investments........................................................................ 90
7.2.15 Amendments to Acquisition Documents or Vulcan Acquisition Documents.......................... 92
7.2.16 Transactions With Respect to AWAC............................................................ 93
7.3 Reporting Requirements.................................................................................... 93
7.3.1 Quarterly Financial Statements............................................................... 93
7.3.2 Annual Financial Statements.................................................................. 93
7.3.3 Certificate of the Borrower.................................................................. 94
7.3.4 Notice of Default............................................................................ 94
7.3.5 Notice of Litigation......................................................................... 94
7.3.6 Notice of Change in Debt Rating.............................................................. 95
7.3.7 Notices Regarding Plans and Benefit Arrangements............................................. 95
7.3.8 Other Information; Notice of Default Under the AWR Senior Notes.............................. 96
7.3.9 Tax Shelter Provisions....................................................................... 97
8. DEFAULT ............................................................................................................ 97
8.1 Events of Default......................................................................................... 97
8.1.1 Payments Under Loan Documents................................................................ 97
8.1.2 Breach of Warranty........................................................................... 97
8.1.3 Breach of Negative Covenants or Visitation Rights............................................ 97
8.1.4 Breach of Other Covenants.................................................................... 98
8.1.5 Defaults in Other Agreements or Indebtedness................................................. 98
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TABLE OF CONTENTS
Section Page
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8.1.6 Judgments or Orders.......................................................................... 98
8.1.7 Loan Document Unenforceable.................................................................. 99
8.1.8 Proceedings Against Assets................................................................... 99
8.1.9 Notice of Lien or Assessment................................................................. 99
8.1.10 Insolvency................................................................................... 99
8.1.11 Events Relating to Plans and Benefit Arrangements............................................ 99
8.1.12 Cessation of Business........................................................................ 100
8.1.13 Change of Control............................................................................ 100
8.1.14 Involuntary Proceedings...................................................................... 100
8.1.15 Voluntary Proceedings........................................................................ 101
8.2 Consequences of Event of Default.......................................................................... 101
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings............ 101
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings......................................... 101
8.2.3 Set-off...................................................................................... 102
8.2.4 Suits, Actions, Proceedings.................................................................. 102
8.2.5 Application of Proceeds...................................................................... 102
8.2.6 Other Rights and Remedies.................................................................... 103
9. THE AGENTS ......................................................................................................... 103
9.1 Appointment............................................................................................... 103
9.2 Delegation of Duties...................................................................................... 103
9.3 Nature of Duties; Independent Credit Investigation........................................................ 104
9.4 Actions in Discretion of Agents; Instructions From the Banks.............................................. 104
9.5 Reimbursement and Indemnification of Agents by the Borrower............................................... 105
9.6 Exculpatory Provisions; Limitation of Liability........................................................... 106
9.7 Reimbursement and Indemnification of Agents by the Lenders................................................ 106
9.8 Reliance by Agents........................................................................................ 107
9.9 Notice of Default......................................................................................... 107
9.10 Notices................................................................................................... 107
9.11 Banks in Their Individual Capacities...................................................................... 108
9.12 Holders of Notes.......................................................................................... 108
9.13 Equalization of Lenders................................................................................... 108
9.14 Successor Agents.......................................................................................... 109
9.15 Administrative Agent's Fees............................................................................... 110
9.16 Availability of Funds..................................................................................... 110
9.17 Calculations.............................................................................................. 110
9.18 Certain Releases of Guarantors and Collateral............................................................. 110
9.19 Beneficiaries............................................................................................. 111
9.20 No Reliance on Administrative Agent's Customer Identification Program..................................... 111
10. MISCELLANEOUS....................................................................................................... 111
10.1 Modifications, Amendments or Waivers...................................................................... 111
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TABLE OF CONTENTS
Section Page
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10.1.1 Increase of Revolving Credit Commitments; Extension of Expiration Date; Modification of
Terms of Payment............................................................................. 111
10.1.2 Release of Guarantor......................................................................... 112
10.1.3 Miscellaneous................................................................................ 112
10.2 No Implied Waivers; Cumulative Remedies; Writing Required................................................. 112
10.3 Reimbursement and Indemnification of Lenders by the Borrower; Taxes....................................... 112
10.4 Holidays.................................................................................................. 114
10.5 Funding by Branch, Subsidiary or Affiliate................................................................ 114
10.5.1 Notional Funding............................................................................. 114
10.5.2 Actual Funding............................................................................... 114
10.6 Notices................................................................................................... 115
10.7 Severability.............................................................................................. 115
10.8 Governing Law............................................................................................. 115
10.9 Prior Understanding....................................................................................... 115
10.10 Duration; Survival........................................................................................ 116
10.11 Successors and Assigns.................................................................................... 116
10.11.1 Binding Effect; Assignments by Borrower...................................................... 116
10.11.2 Assignments and Participations by Banks...................................................... 116
10.11.3 Non-U.S. Assignees and Participants.......................................................... 118
10.11.4 Assignments by Lenders to Federal Reserve Banks.............................................. 119
10.12 Confidentiality........................................................................................... 119
10.12.1 General...................................................................................... 119
10.12.2 Sharing Information With Affiliates of the Lenders........................................... 120
10.13 Counterparts.............................................................................................. 120
10.14 Agent's or Lender's Consent............................................................................... 120
10.15 Exceptions. 120
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.................................................................... 121
10.17 Certifications from Lenders and Participants.............................................................. 121
10.17.1 Tax Withholding.............................................................................. 121
10.17.2 USA Patriot Act.............................................................................. 122
10.18 Requirements for Significant Subsidiaries................................................................. 122
10.18.1 Guaranties and Collateral.................................................................... 122
10.18.2 Additional Collateral........................................................................ 123
10.19 Amendment and Restatement; No Novation.................................................................... 123
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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 1.1(M) - MLP PROPERTIES
SCHEDULE 1.1 (N) NORTH ▇▇▇▇▇▇▇▇ ASSETS TO BE CONTRIBUTED; NORTH ▇▇▇▇▇▇▇▇ ASSUMED LIABILITIES
SCHEDULE 2.9.1 - EXISTING LETTERS OF CREDIT
SCHEDULE 5.1.2 - CERTAIN INFORMATION REGARDING CAPITALIZATION OF BORROWER AND ITS SUBSIDIARIES
SCHEDULE 5.1.6 - LITIGATION
SCHEDULE 5.1.7 - CERTAIN DISCLOSURES REGARDING FINANCIAL STATEMENTS
SCHEDULE 5.1.11 - CONSENTS AND APPROVALS
SCHEDULE 5.1.18 - CERTAIN DISCLOSURES REGARDING ENVIRONMENTAL MATTERS
SCHEDULE 5.1.22 - PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
SCHEDULE 5.1.24 - PARTNERSHIP AGREEMENTS; LLC AGREEMENTS
SCHEDULE 7.2.5 - CERTAIN AFFILIATE TRANSACTIONS
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(C) - AMENDED AND RESTATED COLLATERAL SHARING AGREEMENT
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(G)(2) - AMENDED AND RESTATED CONTINUING GUARANTY AND SURETYSHIP AGREEMENT
EXHIBIT 1.1(P) - AMENDED AND RESTATED PLEDGE AGREEMENT
EXHIBIT 1.1(R) - REVOLVING CREDIT NOTE
EXHIBIT 1.1(S)(1) - AMENDED AND RESTATED SUBORDINATION AGREEMENT (INTERCOMPANY)
EXHIBIT 1.1(S)(2) - SWING LOAN NOTE
EXHIBIT 2.4.1 - COMMITTED LOAN REQUEST
EXHIBIT 2.4.2 - SWING LOAN REQUEST
EXHIBIT 4.4.4 - COMMITMENT REDUCTION NOTICE
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EXHIBIT 6.1.4.1 - OPINION OF COUNSEL
EXHIBIT 6.1.4.2 - OPINION OF COUNSEL (▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP)
EXHIBIT 7.3.3 - QUARTERLY COMPLIANCE CERTIFICATE
- viii -
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of August 20, 2004
and is made by and among ARCH COAL, INC., a Delaware corporation (the
"Borrower"), the LENDERS (as hereinafter defined), JPMORGAN CHASE BANK, in its
capacity as syndication agent, CITIBANK, N.A., CREDIT LYONNAIS NEW YORK BRANCH,
U.S. BANK NATIONAL ASSOCIATION, each in its capacity as a documentation agent,
and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for
the Banks under this Agreement.
WITNESSETH:
WHEREAS, the Borrower, JPMorgan Chase Bank (successor in such capacity to
▇▇▇▇▇▇ Guaranty Trust Company of New York), as syndication agent, Wachovia
Corporation (successor in such capacity to First Union National Bank), as
documentation agent, PNC Bank, National Association, as administrative agent,
and certain lenders are parties to that Credit Agreement dated as of June 1,
1998, as amended as of January 21, 2000, as amended and restated as of April 18,
2002, and as further amended as of January 27, 2003, June 25, 2003, August 19,
2003 December 22, 2003, January 30,2004, May 14, 2004, and August 17, 2004 (the
"Original Credit Agreement"), providing for a $350,000,000 revolving credit
facility to the Borrower; and
WHEREAS, the Borrower has requested certain amendments to the Original
Credit Agreement and, subject to the terms and conditions hereof, the parties
hereto agree that, effective as of the Second Restatement Effective Date, the
Original Credit Agreement shall hereby be amended and restated for the
convenience of such parties in its entirety as set forth below, to provide that
the revolving credit facility under the Original Credit Agreement shall be
continued hereby; and
WHEREAS, the pledge of equity interests of certain Subsidiaries of the
Borrower and the guaranties for the revolving credit facility under the Original
Credit Agreement shall continue to secure the revolving credit loans and all
other obligations hereunder.
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:
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, restated, modified or supplemented after the Closing Date as permitted
by Section 7.2.15.
Additional Collateral shall mean collectively, (i) the
property of the applicable Loan Parties in which security interests are to be
granted under the Security Agreements, (ii) the property of the applicable Loan
Parties in which security interests are to be granted under the Patent,
Trademark and Copyright Security agreements, (iii) the Property of the
applicable Loan Parties in which security interests are to be granted under the
Mortgages, and (iv) all other property of the applicable Loan Parties in which
Liens and/or security interests are to be granted in favor of the Lenders,
following the Additional Collateral Trigger Date, as more fully described in
Section 7.1.14 [Additional Collateral].
Additional Collateral Delivery Date shall mean the date which
is the later of (i) one hundred twenty (120) days following the Additional
Collateral Trigger Date and (ii) one hundred twenty (120) days following the
Second Restatement Effective Date.
Additional Collateral Documents shall mean collectively the
Patent, Trademark and Copyright Security Agreements, the Security Agreements,
the Mortgages, the Additional Indemnity Agreements, and each other agreement
providing for a security interest in and/or Lien on the Additional Collateral.
Additional Collateral Trigger Date shall have the meaning
assigned to that term in Section 7.1.14.
Additional Indemnity Agreements shall mean collectively each
indemnity agreement, in form and substance acceptable to the Administrative
Agent, as executed and delivered by any Loan Party for the benefit of the
Lenders (subsequent to the Additional Collateral Trigger Date), as any of the
same Indemnity Agreements may be supplemented, amended, restated, replaced, or
modified from time to time, and Additional Indemnity Agreement shall mean any of
the Additional Indemnity Agreements.
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.
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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.
Agents shall mean collectively the Administrative Agent and
the Syndication Agent, and Agent shall mean any one of the Agents, individually.
Agreement shall mean the Original Credit Agreement (including
all schedules and exhibits) as hereby amended and restated as of the Second
Restatement Effective Date by this Amended and Restated Credit Agreement
(including all schedules and exhibits), as the same may hereafter be
supplemented, amended, restated, refinanced, replaced, or modified from time to
time in accordance herewith.
Anti-Terrorism Laws shall mean any Laws relating to terrorism
or money laundering, including Executive Order No. 13224, and the USA Patriot
Act.
Applicable Commitment Fee Rate shall mean the percentage rate
per annum at the indicated level of Debt Rating in effect from time to time as
set forth in the pricing grid on Schedule 1.1(A) below the heading "Commitment
Fee." The Applicable Commitment Fee Rate shall be computed in accordance with
the parameters set forth on Schedule 1.1(A). It is expressly agreed that on the
Restatement Effective Date, the Applicable Commitment 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 III thereof.
For periods after the Restatement Effective Date, the Applicable Commitment Fee
Rate shall be the amount determined under Schedule 1.1(A) based upon the
applicable Debt Rating in effect from time to time.
Applicable Letter of Credit Fee Rate shall mean the rate per
annum at the indicated level of Debt Rating in effect from time to time as set
forth in the pricing grid on Schedule 1.1(A) 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). It is expressly agreed that on
the Restatement Effective 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 III
thereof. For periods after the Restatement Effective Date, the Applicable Letter
of Credit Fee Rate shall be the amount determined under Schedule 1.1(A) based
upon the applicable Debt Rating in effect from time to time.
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Applicable Margin shall mean, as applicable:
(A) the percentage spread to be added to Euro-Rate under the
Euro-Rate Option at the indicated level of Debt Rating in effect from time to
time as set forth in the pricing grid on Schedule 1.1(A) below the heading
"Revolving Credit Euro-Rate Spread," or
(B) the percentage spread to be added to the Base Rate under
the Base Rate Option at the indicated level of Debt Rating in effect from time
to time as set forth in the pricing grid on Schedule 1.1(A) below the heading
"Revolving Credit Base Rate Spread."
The Applicable Margin shall be computed in accordance with the parameters set
forth on Schedule 1.1(A). It is expressly agreed that on the Restatement
Effective 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 III thereof. For periods after the Restatement Effective
Date, the Applicable Margin shall be the amount determined under clause (A) or
clause (B) 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 and the
Securitization Subsidiary).
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 (1998) shall mean that certain
Credit Agreement by and among Arch Western, PNC Bank, as administrative agent,
and JPMorgan Chase Bank (successor in such capacity to ▇▇▇▇▇▇ Guaranty Trust
Company of New York), as syndication agent, providing for a $675,000,000 term
loan facility to Arch Western, dated as of June 1, 1998, as amended and restated
through and including the Restatement Effective Date.
Arch Western Group shall mean, as of any date of
determination, 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, 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.
- 4 -
Arch Western Term Facility shall mean the credit agreement and
other material loan documentation evidencing the Indebtedness permitted by
clause (xi) of Section 7.2.1 of this Agreement, as the same may be restated,
amended, modified or supplemented from time to time.
ARCO shall mean Atlantic Richfield Company, a corporation
organized and existing under the laws of the State of Delaware.
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).
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.
AWR Derivatives Obligations Adjustment shall mean, for any
period of determination, the actual aggregate amount of all charges (including
in such aggregate amount the amount of all charges treated under GAAP as
one-time expense items and all charges treated under GAAP as amortized
expenses), as determined for the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, to consolidated net income of the Borrower and
its Subsidiaries during such period, which charges are attributable to certain
Derivatives Obligations (which Derivative Obligations previously provided
interest rate protection for the Arch Western Credit Facility (1998)) and which
will no longer qualify for hedge accounting treatment in accordance with GAAP
under FASB 133 upon the refinancing of the loans under the Arch Western Credit
Facility (1998) with the proceeds of the issuance of the AWR Senior Notes.
AWR Financing Fee Adjustment shall mean the lesser of (y)
$5,000,000, and (z) the actual amount of fees and expenses (the "Designated
Fees"), as determined for the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, deducted from consolidated net income of the
Borrower and its Subsidiaries during the fiscal quarter of the Borrower when the
AWR Senior Notes are issued by Arch Western or a Subsidiary of Arch Western,
which Designated Fees were incurred as part of the customary transaction closing
costs in connection with the closing of the Arch Western Credit Facility (1998)
and which were required to be capitalized in accordance with GAAP and, as of the
date of issuance of the AWR Senior Notes, which Designated Fees are required in
accordance with GAAP to be deducted as an expense and are no longer permitted to
be capitalized under GAAP.
- 5 -
AWR Senior Notes shall mean the Senior Notes of Arch Western
or a Subsidiary of Arch Western which are issued pursuant to the AWR Senior
Notes Indenture and which meet all of the requirements of and constitute
Permitted Additional AWR Indebtedness.
AWR Senior Notes Indenture shall mean the indenture, governing
the AWR Senior Notes, as in effect on the Second Amendment Effective Date and
without regard to any restatement, amendment, modification or supplement thereof
after the Second Amendment Effective Date.
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 (i) $462,811,000, plus
(ii) 50% of consolidated net income of the Borrower and its Subsidiaries (with
consolidated net income determined, without duplication: (1) before the
after-tax effect of changes in accounting principles, and (2) without regard to
the effect, without duplication, of the AWR Derivatives Obligations Adjustment
or the effect of the AWR Financing Fee Adjustment) for each fiscal quarter in
which net income was earned commencing with the fiscal quarter ending June 30,
2002, plus (iii) 100% of the net increase in Consolidated Tangible Net Worth
resulting from the issuance of any equity securities by the Borrower, for the
period from April 1, 2002 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 Open Rate plus 1/2% per annum.
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(i).
Benefit Arrangement shall mean at any time an "employee
benefit plan," within the meaning of Section 3(3) of ERISA, which is neither a
Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise
contributed to by any member of the ERISA Group.
Blocked Person shall have the meaning assigned to such term in
Section 5.1.26.2.
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 a Euro-Rate Option applies which
become subject to the same Interest Rate Option under the same Committed 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.
Buckskin Operations shall mean that certain mine commonly
referred to by the Vulcan Joinder Company as the Buckskin Mine and that is
located in ▇▇▇▇▇▇▇▇ County, Wyoming.
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.
CIP Regulations shall have the meaning set forth in Section
9.20.
Citibank shall mean Citibank, N.A., its successors and
assigns.
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.
Collateral shall mean collectively, (i) the property of the
applicable Loan Parties in which security interests are to be or have been
granted under the Pledge Agreements, and (ii) all other property of the
applicable Loan Parties in which Liens and/or security interests are to be or
have been granted in favor of the Lenders pursuant to Section 10.18.1.
- 7 -
Collateral Agent shall mean the "Collateral Agent" as such
term is defined in the Collateral Sharing Agreement.
Collateral Documents shall mean collectively, the Existing
Indemnity Agreements, the Pledge Agreements, the Collateral Sharing Agreement
and each other agreement providing for a security interest in and/or Lien on the
Collateral.
Collateral Sharing Agreement shall mean the Amended and
Restated Collateral Agency and Sharing Agreement, among Borrower, the
Guarantors, the Administrative Agent on behalf of the Lenders, the Owner Trustee
(as defined therein), the Loan Trustee (as defined therein), the Swap Parties
(as defined therein) party thereto, and PNC Bank, as Collateral Agent (as
defined therein), substantially in the form of Exhibit 1.1(C) hereto, as the
same may be supplemented, amended, restated, replaced, or modified from time to
time.
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, in the case of PNC Bank, its Swing Loan
Commitment, and Commitments shall mean the aggregate of the Revolving Credit
Commitments and Swing Loan Commitment of all of the Banks.
Commitment Fee shall mean the fee referred to in Section
2.3.1.
Commitment Reduction Notice shall have the meaning set forth
in Section 4.4.4.
Committed Loan shall mean either a Revolving Credit Loan or a
Swing Loan.
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 in accordance with Sections 2.4, 3.1 and 3.2.
Commodity Price Protection Agreement shall mean a crude oil or
heating oil price protection agreement, for the purpose of hedging the purchase
price of diesel fuel used by the Loan Parties in the ordinary course operations
of their business, in a standard International Swap Dealer Association
Agreement, including, without limitation, providing for the method of
calculating the reimbursable amount of the provider's credit exposure in a
reasonable and customary manner.
Consolidated Tangible Net Worth shall mean as of any date of
determination total stockholders' equity (determined before the after-tax effect
of changes in accounting principles) less Intangible Assets of the Borrower and
its Subsidiaries as of such date, all as determined and consolidated in
accordance with GAAP less the positive number, if any,
- 8 -
equal to the amount of the Investment by the Borrower and its Subsidiaries in
Permitted Joint Ventures in excess of $30,000,000.
Contamination shall mean the presence or Release or threat of
Release of Regulated Substances in, on, under or emanating to or from the
Property, which pursuant to Environmental Laws requires notification or
reporting to an Official Body, or which pursuant to Environmental Laws requires
the investigation, cleanup, removal, remediation, containment, abatement of or
other response action or which otherwise constitutes a violation of
Environmental Laws.
Contribution Agreement shall mean that certain Contribution
Agreement among the Borrower, AWAC, ARCO, Delta Housing, Inc., a Delaware
corporation, and Arch Western.
Credit Lyonnais shall mean Credit Lyonnais New York Branch,
its successors and assigns.
Debt shall mean for any Person as of any date of
determination, the difference between the following (a) and (b): (a) the sum,
without duplication, of the following for such Person, as of such date,
determined in accordance with GAAP: (i) all indebtedness for borrowed money
(including, without limitation, all subordinated indebtedness), (ii) all amounts
raised under or liabilities in respect of any note purchase or acceptance credit
facility, (iii) all indebtedness in respect of any other transaction (including
production payments (excluding royalties), installment purchase agreements,
forward sale or purchase agreements, capitalized leases and conditional sales
agreements) having the commercial effect of a borrowing of money entered into by
such Person to finance its operations or capital requirements, (iv)
reimbursement obligations (contingent or otherwise) under any letter of credit
(other than, with respect to the Borrower and its Subsidiaries, contingent
reimbursement obligations aggregating at any time up to $75,000,000 and other
than contingent reimbursement obligations in respect of the letter of credit
issued to support the Port Bond), (v) fifty percent (50%) of all indebtedness
and other obligations in respect of any Permitted Receivables Financing, and
(vi) 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 the Guaranty by the Borrower of the Port Bond,
shall be excluded from the amount determined under clause (vi) 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 the Statement of the Financial Accounting Standards Board No. 141
(as in effect on the Restatement Effective Date) will be excluded from
indebtedness in the determination of Debt.
- 9 -
Debt Rating shall mean the rating of the credit facility under
this Agreement by either of Standard & Poor's or ▇▇▇▇▇'▇.
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, including, without limitation obligations in respect of
any Interest Rate Protection Agreement.
Documentation Agent shall mean each of Citibank, Credit
Lyonnais, and U.S. 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 2.9.3.2.
EBITDDA for any period of determination shall mean with
respect to any Person: (a) income from operations (with income from operations
determined, without duplication: (1) before the effect of changes in accounting
principles, and (2) without regard to the effect, without duplication, of
nonrecurring charges, extraordinary items, the AWR Financing Fee Adjustment and
the AWR Derivatives Obligations Adjustment), plus (b) to the extent deducted in
the determination of such income from operations the sum of net interest
expense, income taxes, depreciation, depletion and amortization, with all
amounts for purposes of clause (a) and clause (b) for such period determined in
accordance with GAAP.
Eligible Note Receivable shall mean that certain unsecured
demand note payable by the Borrower to Arch Western, dated as of the date
hereof, as such note may hereafter be modified, amended, restated, supplemented,
refinanced, replaced, extended or renewed from time to time, subject to the
prior written consent of the Agents in the event of: (i) any modification,
amendment, restatement, supplement, refinancing, replacement, extension, or
renewal of such unsecured demand note which increases the rate of interest
payable by the Borrower thereunder, which provides for any collateral security
therefore, which provides for any guarantee thereof or which modifies, amends,
restates, supplements or eliminates any right of set-off thereunder, or (ii) any
other modification, amendment, restatement, supplement, refinancing,
replacement, extension, or renewal of such unsecured demand note on terms
materially adverse to the Borrower or the Lenders.
Environmental Claim shall mean any administrative, regulatory
or judicial action, suit, claim, notice of non-compliance or violation, notice
of liability or potential liability, proceeding, consent order or consent
agreement relating in any way to any of the Environmental
- 10 -
Laws, Environmental Permit, Regulated Substances, Contamination or otherwise
arising from alleged injury or threat of injury to the environment.
Environmental Complaint shall mean any written notice or
complaint by any Person or Official Body setting forth allegations relating to
or a cause of action for personal injury or property damage, natural resource
damage, contribution or indemnity for response costs, civil or administrative
penalties, criminal fines or penalties, or declaratory or equitable relief
arising under any Environmental Laws or any order, notice of violation,
citation, subpoena, request for information or other written notice or demand of
any type issued by an Official Body pursuant to any Environmental Laws.
Environmental Laws shall mean, collectively, any federal,
state, local or foreign statute, Law (including, but not limited to
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. Section 6901 et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq., the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq., the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq., the Federal Safe Drinking Water Act, 42
U.S.C. Sections 300f-300j, the Federal Air Pollution Control Act, 42 U.S.C.
Section 7401 et seq., the Oil Pollution Act, 33 U.S.C. Section 2701 et seq., the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 to
136y, the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq. the
Mine Safety and Health Act, 30 U.S.C. Sections 801 et seq., the Surface Mining
Control and Reclamation Act 30 U.S.C. Sections 1201 et seq., each as amended, or
any equivalent state or local statute, and any amendments thereto), code,
consent decree, settlement agreement, directive, judicial or agency
interpretation, policy or guidance regulating: (i) pollution or pollution
control; (ii) protection of human health from exposure to Regulated Substances;
(iii) protection of natural resources or the environment; (iv) employee safety
in the workplace and the protection of employees from exposure to Regulated
Substances in the workplace (but excluding workers compensation and wage and
hour laws); (vi) the presence, use, management, generation, manufacture,
processing, extraction, treatment, recycling, refining, reclamation, labeling,
transport, storage, sale, collection, distribution, disposal or Release or
threat of Release of Regulated Substances; (v) the presence of Contamination;
(vi) the protection of endangered or threatened species; and (vii) the
protection of Environmentally Sensitive Areas.
Environmental Permit shall mean any permit, approval, license,
consent, bond, or other authorization required under any of the Environmental
Laws.
Environmentally Sensitive Area shall mean (i) any wetland as
defined by applicable Environmental Laws; (ii) any area designated as a coastal
zone pursuant to applicable Laws, including Environmental Laws; (iii) any area
of historic or archeological significance or scenic area as defined or
designated by applicable Laws, including Environmental Laws; (iv) habitats of
endangered species or threatened species as designated by applicable Laws,
including Environmental Laws; or (v) a floodplain or other flood hazard area as
defined pursuant to any applicable Laws.
- 11 -
ERISA shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other entities which,
together with the Borrower, are treated as a single employer under Section 414
of the Internal Revenue Code.
Euro-Rate shall mean, with respect to the Loans comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period,
the interest rate per annum determined by the Administrative Agent by dividing
(the resulting quotient 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 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(ii).
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.
- 12 -
Event of Default shall mean any of the events described in
Section 8.1 [Events of Default] and referred to therein as an "Event of
Default."
Excluded Subsidiaries shall mean, collectively, AWAC, Arch
Western and the Subsidiaries of Arch Western.
Executive Order No. 13224 shall mean the Executive Order No.
13224 on Terrorist Financing, effective September 24, 2001, as the same has
been, or shall hereafter be, renewed, extended, amended or replaced.
Existing Indemnity Agreements shall mean collectively the
Indemnity Agreements, executed and delivered in connection with the amendment
dated as of January 21, 2000, to the Original Credit Agreement, by each of the
applicable Loan Parties to the Administrative Agent for the benefit of the
Lenders, as any of the same may be supplemented, amended, restated, replaced, or
modified from time to time, and Existing Indemnity Agreement shall mean any of
the Existing Indemnity Agreements.
Expiration Date shall mean, with respect to the Revolving
Credit Commitments and Swing Loan Commitment, April 18, 2007.
Federal Funds Effective Rate for any day shall mean the rate
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day as being the weighted average of the rates
on overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve Bank (or
any successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; provided, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
Federal Funds Open Rate shall mean the rate per annum
determined by the Administrative Agent in accordance with its usual procedures
(which determination shall be conclusive absent manifest error) to be the "open"
rate for federal funds transactions as of the opening of business for federal
funds transactions among members of the Federal Reserve System arranged by
federal funds brokers on such day, as quoted by ▇▇▇▇▇▇ Guybutler, any successor
entity thereto, or any other broker selected by the Administrative Agent, as set
forth on the applicable Telerate display page; provided, however, that if such
day is not a Business Day, the Federal Funds Open Rate for such day shall be the
"open" rate on the immediately preceding Business Day, or if no such rate shall
be quoted by a federal funds broker at such time, such other rate as determined
by the Administrative Agent in accordance with its usual procedures.
Financial Projections shall have the meaning assigned to that
term in Section 5.1.7(iii).
First Amendment Effective Date shall mean January 27, 2003.
- 13 -
Fixed Charge Coverage Ratio shall mean the ratio of (a) the
sum of EBITDDA of the Borrower and its Subsidiaries, plus, without duplication,
the Appropriate Percentage of each Special Subsidiary's EBITDDA, each on a
consolidated basis in accordance with GAAP, plus operating lease expense of the
Borrower and its Subsidiaries, plus, without duplication, the Appropriate
Percentage of each Special Subsidiary's operating lease expense, each on a
consolidated basis in accordance with GAAP, to (b) the sum of interest expense
(other than, to the extent and only to the extent included in interest expense,
the sum, without duplication, of: (i) Permitted Loan Origination Expense, (ii)
the amount of the AWR Financing Fee Adjustment, and (iii) the amount of the AWR
Derivatives Obligations Adjustment) of the Borrower and its Subsidiaries, plus,
without duplication, the Appropriate Percentage of interest expense of each
Special Subsidiary, each on a consolidated basis in accordance with GAAP, plus
operating lease expense of the Borrower and its Subsidiaries, plus, without
duplication, the Appropriate Percentage of operating lease expense of each
Special Subsidiary, each on a consolidated basis in accordance with GAAP, with
the amounts under the numerator and denominator of such ratio all calculated as
of the last day of each fiscal quarter for the four fiscal quarters of the
Borrower then ended.
For purposes of calculating the Fixed Charge Coverage Ratio for the First
Adjusted Quarter (as hereinafter defined) through and including the Fourth
Adjusted Quarter (as hereinafter defined), clause (a) above shall be increased
by the sum of (x) a percentage of the Triton EBITDDA Adjustment corresponding to
the applicable financial period indicated below:
PERCENTAGE OF TRITON
EBITDDA ADJUSTMENT PERIOD
-----------------------------------------------------------------------
100% First Adjusted Quarter
75% Second Adjusted Quarter
50% Third Adjusted Quarter
25% Fourth Adjusted Quarter
plus (y) Triton Integration Expenses incurred by the Borrower and its
Subsidiaries during the applicable period of determination with respect to which
the numerator of the Fixed Charge Coverage Ratio pursuant to clause (a) above is
determined to the extent that (i) such expenses are deducted in the
determination of EBITDDA for such period, and (ii) such expenses are not
included as expenses that constitute a portion of the Triton Synergistic Savings
for purposes of determining the Triton EBITDDA Adjustment under clause (x) above
of this definition of Fixed Charge Coverage Ratio.
As used in this definition of Fixed Charge Coverage Ratio: First Adjusted
Quarter shall mean the fiscal quarter of the Borrower during which the Vulcan
Acquisition is consummated, Second Adjusted Quarter shall mean the fiscal
quarter of the Borrower immediately following the First
- 14 -
Adjusted Quarter, Third Adjusted Quarter shall mean the fiscal quarter of the
Borrower immediately following the Second Adjusted Quarter and Fourth Adjusted
Quarter shall mean the fiscal quarter of the Borrower immediately following the
Third Adjusted Quarter.
Fourth Amendment Effective Date shall mean December 22, 2003.
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 2.9.7.
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 Amended and
Restated Guaranty and Suretyship Agreement in substantially the form of Exhibit
1.1(G)(2) executed and delivered by each of the Guarantors for the benefit of
the Lenders, as the same may be supplemented, amended, restated, replaced, or
modified from time to time.
Historical Statements shall have the meaning assigned to that
term in Section 5.1.7(i).
Inactive Subsidiaries shall mean, at any time, collectively,
the Subsidiaries of the Borrower which: (i) do not actively conduct any business
or operations, and (ii) have total assets, in the case of any such Subsidiary,
with a book value, as of any date of determination, not in excess of $250,000.
Income Tax Regulations shall mean those regulations
promulgated pursuant to the Internal Revenue Code.
Indebtedness shall mean, as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note
- 15 -
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.
Independent Financial Advisor shall mean an investment banking
firm of national standing or any third party appraiser of national standing,
provided that such firm or appraiser is not an Affiliate of any member of the
Arch Western Group.
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.
Intangible Assets shall mean, as of any date of determination,
the difference between (i) intangible assets of the Borrower and its
Subsidiaries as determined on a consolidated basis in accordance with GAAP, as
of such date, less (ii) to the extent included in the determination of
intangible assets under the immediately preceding clause (i), Intangible Assets
Attributable to Leased Coal Interests.
Intangible Assets Attributable to Leased Coal Interests shall
mean, as of any date of determination, the amount, as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP,
of leased coal reserves, leased surface rights, mineral or natural gas rights,
and prepaid royalties, in accordance with Financial Accounting Standards Board
No. 141 (as in effect on the Fourth Amendment Effective Date).
Interest Period shall have the meaning set forth in Section
3.2.
Interest Rate Option shall mean any Euro-Rate Option, Base
Rate Option or Offered Rate Option.
Interest Rate Protection Agreement shall mean an interest rate
protection agreement in a standard International Swap Dealer Association
Agreement, including, without limitation, providing for the method of
calculating the reimbursable amount of the provider's credit exposure in a
reasonable and customary manner.
- 16 -
Internal Revenue Code shall mean the Internal Revenue Code of
1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
Investments shall mean collectively all of the following with
respect to any Person: (i) investments or contributions by any of the Loan
Parties or their Subsidiaries directly or indirectly in or to the capital of or
other payments to (except in connection with transactions for the sale of goods
or services for fair value in the ordinary course of business) such Person, (ii)
loans by any of the Loan Parties or their Subsidiaries to such Person, (iii)
guaranties by any Loan Party or any Subsidiary of any Loan Party directly or
indirectly of the obligations of such Person, or (iv) other obligations,
contingent or otherwise, of any Loan Party or any Subsidiary of any Loan Party
to or for the benefit of such Person. If the nature of an Investment is tangible
property then the amount of such Investment shall be determined by valuing such
property at fair value in accordance with the past practice of the Loan Parties
and such fair values shall be satisfactory to the 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.
JPMorgan Chase shall mean JPMorgan Chase Bank, its successors
and assigns.
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.
Landlord Waiver shall mean a landlord waiver in form and
substance satisfactory to the Administrative Agent, executed and delivered by
each owner of real property which is leased to a Loan Party and where Additional
Collateral is located on such leased real property.
Law shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree, judgment, lien or award of or settlement agreement
with any Official Body.
Lease Documents shall have the meaning assigned to that term
in the Collateral Sharing Agreement.
Lender shall mean each of the Banks and Lenders shall mean all
of the Banks.
Letter of Credit shall have the meaning assigned to that term
in Section 2.9.1.
- 17 -
Letter of Credit Fee shall have the meaning assigned to that
term in Section 2.9.2.
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. If the face amount of any Letter of Credit shall increase
automatically over time, such increase shall be deemed to occur for purposes of
computing "Letters of Credit Outstanding" under this Agreement on the date which
is sixty (60) days before the actual effective date of such automatic increase.
Leverage Ratio shall mean the ratio of the amounts under the
following clauses (a) and (b): (a) Total Net Funded Debt, plus, without
duplication, the Appropriate Percentage of Debt of each Special Subsidiary, each
on a consolidated basis in accordance with GAAP (as the numerator) to (b) the
sum of EBITDDA of the Borrower and its Subsidiaries, plus, without duplication,
the Appropriate Percentage of each Special Subsidiary's EBITDDA, each on a
consolidated basis in accordance with GAAP (as the denominator). For purposes of
calculating the Leverage Ratio, Total Net Funded 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.
For purposes of calculating the Leverage Ratio for the First Adjusted
Quarter (as hereinafter defined) through and including the Fourth Adjusted
Quarter (as hereinafter defined), clause (b) above shall be increased by the sum
of (x) a percentage of the Triton EBITDDA Adjustment corresponding to the
applicable financial period indicated below:
PERCENTAGE OF TRITON
EBITDDA ADJUSTMENT PERIOD
--------------------------------------------------------------------
100% First Adjusted Quarter
75% Second Adjusted Quarter
50% Third Adjusted Quarter
25% Fourth Adjusted Quarter
plus (y) Triton Integration Expenses incurred by the Borrower and its
Subsidiaries during the applicable period of determination with respect to which
the denominator of the Leverage Ratio pursuant to clause (b) above is determined
to the extent that (i) such expenses are deducted in the determination of
EBITDDA for such period, and (ii) such expenses are not included as expenses
that constitute a portion of the Triton Synergistic Savings for purposes of
determining the Triton EBITDDA Adjustment under clause (x) above of this
definition of Leverage Ratio.
As used in this definition of Leverage Ratio: First Adjusted Quarter
- 18 -
shall mean the fiscal quarter of the Borrower during which the Vulcan
Acquisition is consummated, Second Adjusted Quarter shall mean the fiscal
quarter of the Borrower immediately following the First Adjusted Quarter, Third
Adjusted Quarter shall mean the fiscal quarter of the Borrower immediately
following the Second Adjusted Quarter and Fourth Adjusted Quarter shall mean the
fiscal quarter of the Borrower immediately following the Third Adjusted Quarter.
Lien shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
LLC Agreements shall mean collectively the Arch Western LLC
Agreement, Canyon Fuel LLC Agreement, Mountain Coal LLC Agreement, Arch of
Wyoming 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, the Patent, Trademark and
Copyright Security Agreements, the Pledge Agreements, the Existing Indemnity
Agreements, the Additional Indemnity Agreements, each Landlord Waiver, the
Collateral Sharing Agreement, the Security Agreements, the Subordination
Agreement, each Guarantor Joinder, the Mortgages 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, amended, restated, replaced, or modified from time to time in
accordance herewith or therewith, and Loan Document shall mean any of the Loan
Documents. It is expressly agreed that each Interest Rate Protection Agreement
and each Commodity Price Protection Agreement shall not be deemed to be a Loan
Document.
Loan Parties shall mean the Borrower and the Guarantors.
Loans shall mean collectively and Loan shall mean separately
all Revolving Credit Loans and Swing Loans or any Revolving Credit Loan or Swing
Loan.
Material Adverse Change shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of this Agreement
or any other Loan Document, (b) is or could reasonably be expected to be
materially adverse to the business, financial condition or results of operations
of the Borrower and its Subsidiaries taken as a whole, or (c) impairs materially
or could reasonably be expected to impair materially the ability of any Agent or
any of the Lenders, to the extent permitted, to enforce their legal remedies
pursuant to this Agreement or any other Loan Document.
Material Contracts shall mean collectively all contracts,
agreements or other instruments described in Regulation S-K, Item 601(b)(10)
promulgated pursuant to the
- 19 -
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.
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.
MLP Transaction shall mean the sale by the members of the Arch
Coal Group of those properties identified on Schedule 1.1(M) in an arms-length,
sale transaction on reasonable and customary terms, which transaction forms a
master limited partnership or similar entity for the purpose of acquiring such
properties and potentially other coal mining properties from members of the Arch
Coal Group and potentially other Persons not related to the Arch Coal Group and
provides partnership interests in such partnership to the Arch Coal Group.
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 ▇.▇. ▇▇▇▇▇▇ Securities Inc.
Mortgages shall mean collectively the mortgages, leasehold
mortgages, deeds of trust and other similar instruments and agreements executed
and delivered by a Loan Party for the benefit of the Lenders, each in form and
substance satisfactory to the Administrative Agent, as the same may be
supplemented, amended, restated, replaced or modified from time to time and
Mortgage shall mean any of the Mortgages.
Mountain Coal LLC Agreement shall mean that certain Limited
Liability Company Agreement, dated as of March 6, 1998, as amended, of Mountain
Coal Company, L.L.C., a limited liability company organized and existing under
the laws of the State of Delaware.
Multiemployer Plan shall mean any employee benefit plan which
is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and
to which the Borrower or any member of the ERISA Group is then making or
accruing an obligation to make contributions or, within the preceding five Plan
years, has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two
- 20 -
of whom are not under common control, as such a plan is described in Sections
4063 and 4064 of ERISA.
Net Cash Proceeds shall mean, with respect to any transaction,
an amount equal to the cash proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such transaction (including, when received,
any cash proceeds received as income or other cash proceeds of any non-cash
proceeds of such transaction), less (x) any expenses or charges (including
commissions, fees and taxes paid or payable) reasonably incurred by such Person
in respect of such transaction, (y) in the event that the transaction is a sale
or disposition, any amounts considered appropriate by the chief financial
officer of the Borrower to provide reserves in accordance with GAAP for payment
of indemnities or liabilities that may be incurred in connection with such sale
or disposition, and (z) in the case of any asset sale permitted by Section
7.2.4(vi), the amount of any debt secured by a Lien on the related asset and
discharged as part of such asset sale. For purposes of this definition, if taxes
or other expenses payable in connection with the sale or other disposition of
any asset are not known as of the date of such sale or other disposition, then
such fees, commissions, expenses or taxes shall be estimated in good faith by
the chief financial officer of the Borrower and such estimated amounts shall be
deducted. At such time as any reserved amount described in clause (y) above is
no longer required to be held in reserve, the balance thereof, after payment of
the related liabilities or indemnities, shall be used as follows: (a) if such
transaction is a sale of assets permitted by Section 7.2.4(iii) to make the
purchase of substitute assets required by Section 7.2.4(iii), (b) if such
transaction is a sale, transfer or lease of assets by a member of the Arch Coal
Group permitted by Section 7.2.4(vi), to make a mandatory prepayment of and
permanent and irrevocable Commitment reduction with respect to the Revolving
Credit Loans in accordance with Section 4.4.5, and (c) if such transaction is a
sale, transfer or lease of assets by a member of the Arch Western Group
permitted by Section 7.2.4(vi), to make the mandatory payments and/or
redemptions of the Indebtedness of Arch Western or the applicable Subsidiary of
Arch Western as required in accordance with Section 4.09 of the AWR Senior Notes
Indenture or to make the mandatory redemptions of other Permitted Additional AWR
Indebtedness as required in accordance with any agreement or indenture governing
such other Permitted Additional AWR Indebtedness.
North ▇▇▇▇▇▇▇▇ Contribution shall mean, collectively, the
following:
(i) the contribution to the applicable Subsidiaries of Arch
Western by the applicable members of the Arch Coal Group of those assets
acquired as part of the Vulcan Acquisition that are used in connection with the
operation of that certain mine commonly referred to by the Vulcan Joinder
Company as the North ▇▇▇▇▇▇▇▇ mine and that is located in ▇▇▇▇▇▇▇▇ County,
Wyoming, the contributed assets of which are more fully set forth on Schedule
1.1(N); and
(ii) the unconditional and irrevocable assumption, in
connection with the contribution of assets described in the immediately
preceding clause (i), by the applicable Subsidiaries of Arch Western of those
liabilities and obligations identified on Schedule 1.1(N) as the "North ▇▇▇▇▇▇▇▇
Assumed Liabilities".
- 21 -
North ▇▇▇▇▇▇▇▇ Contribution Documents shall mean all
agreements and related documentation with respect to the North ▇▇▇▇▇▇▇▇
Contribution, including, without limitation any leases, subleases or other
agreements between any member of the Arch Coal Group and any member of the Arch
Western Group.
North ▇▇▇▇▇▇▇▇ Mineral Rights shall mean those rights
associated with the operation of that certain mine commonly referred to by the
Vulcan Joinder Company as the North ▇▇▇▇▇▇▇▇ mine and that is located in
▇▇▇▇▇▇▇▇ County, Wyoming and as set forth in: (a) Federal Coal Lease W-71692,
originally dated December 1, 1966, segregated from WYW-0321779, readjusted
effective December 1, 1996, modified effective January 1, 2003, from the United
States of America to Triton Coal Company, LLC; (b) Federal Coal Lease WYW-127221
dated January 1, 1998, from the United States of America to Triton Coal Company,
LLC; and (c) Coal Lease Agreement, executed in counterparts, from ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ et ux, dated December 20, 1979, and from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇. et ux, and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ dated December 27, 1979 to Peabody Coal Company.
Notes shall mean the Revolving Credit Notes and Swing Loan
Note.
notices shall have the meaning assigned to that term in
Section 10.6 [Notices].
NRP Interests shall mean all debt or equity ownership
interests of Natural Resource Partners L.P., a Delaware limited partnership,
owned by any Loan Party.
NRP Subordinated Units shall mean the 4,796,920 subordinated
units of limited partnership interest of Natural Resource Partners L.P., a
Delaware limited partnership, owned by the Borrower.
Obligation shall mean any obligation, Indebtedness, or
liability of any of the Loan Parties to any Agent or any of the Lenders,
howsoever created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due, under or in
connection with this Agreement, any Notes, the Letters of Credit, the
Administrative Agent's Letter, any other Loan Document, any Interest Rate
Protection Agreement provided by a Bank or any Commodity Price Protection
Agreement provided by a Bank. It is expressly agreed that if an Interest Rate
Protection Agreement or a Commodity Price Protection Agreement is provided by a
Person other than a Bank, the obligations, Indebtedness or liabilities under any
such agreement shall not be included as part of the 'Obligation'.
Off-Balance Sheet and Capital Lease Transactions shall have
the meaning assigned to such term in Section 7.2.9.
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,
- 22 -
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.
Original Credit Agreement shall have the meaning assigned to
such term in the preamble hereof.
Partnership Interests shall have the meaning given to such
term in Section 5.1.2.
Patent, Trademark and Copyright Security Agreements shall mean
collectively the patent, trademark and copyright security agreements in form and
substance acceptable to the Administrative Agent, each as executed and delivered
by the applicable Loan Parties for the benefit of the Lenders, as the same may
be supplemented, amended, restated, replaced or modified from time to time and
Patent, Trademark and Copyright Security Agreement shall mean any of the Patent,
Trademark and Copyright Security Agreements.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Acquisition shall have the meaning assigned to such
term in Section 7.2.3.
Permitted Additional AWR Indebtedness shall mean Indebtedness
issued by Arch Western or a Subsidiary of Arch Western which Indebtedness meets
all of the following requirements:
(i) the aggregate principal amount of such Indebtedness at any
time outstanding shall not exceed $700,000,000;
(ii) no portion of the principal of such Indebtedness shall be
due prior to seven years after the date of issuance thereof, other than any
mandatory redemptions required (y) under the AWR Senior Notes Indenture in the
event that proceeds from the sale, transfer, lease or other disposition of
assets of a member of the Arch Western Group are not timely used, as required in
accordance with the AWR Senior Notes Indenture, to acquire replacement assets,
or (z) under any other indenture or agreement containing mandatory redemption
provisions which are no more restrictive than the mandatory redemption
provisions under the AWR Senior Notes Indenture upon a sale, transfer, lease or
other disposition of assets in the event that proceeds from such sale, transfer,
lease or other disposition of assets of a member of the Arch Western Group are
not timely used to acquire replacement assets;
(iii) the rate of interest applicable to such Indebtedness
shall not exceed 8 1/2%;
(iv) after giving effect to the issuance of such Indebtedness
(the amount of which shall be included as Indebtedness in computing the Leverage
Ratio) the Loan Parties shall be in pro-forma compliance with the covenants set
forth in Section 7.2 [Negative
- 23 -
Covenants] of this Agreement and no Event of Default or Potential Default shall
exist or be continuing;
(v) the events of default and covenants applicable to such
Indebtedness shall not be more restrictive, in any material respect, than the
events of default and covenants governing those matters or similar matters which
are the subject of Section 7.2 [Negative Covenants] of this Agreement;
(vi) the events of default and covenants applicable to such
Indebtedness shall not be more restrictive, in any material respect, than the
events of default and covenants governing those matters or similar matters which
are the subject of Section 7.2 [Negative Covenants] of the Arch Western Credit
Facility (1998) (whether or not the Arch Western Credit Facility (1998) is in
effect);
(vii) such Indebtedness shall be secured by no more than the
pledge of the Eligible Note Receivable;
(viii) any Guaranty of such Indebtedness shall be provided by
a Person other than AWAC or any member of the Arch Coal Group;
(ix) such Indebtedness shall not restrict loans or advances by
any member of the Arch Western Group to any member of the Arch Coal Group, other
than restrictions which are no more restrictive than as set forth in the AWR
Senior Notes Indenture;
(x) such Indebtedness shall not restrict dividends or
distributions payable by any member of the Arch Western Group to any member of
the Arch Coal Group other than restrictions which are no more restrictive than
as set forth in the AWR Senior Notes Indenture;
(xi) all Obligations of the Loan Parties under this Agreement
and the other Loan Documents shall not conflict with or violate the terms of
such Indebtedness, and any Loans made or hereafter made to the Borrower and any
Letters of Credit issued or hereafter issued under the Agreement will be
permitted to be incurred under such Indebtedness;
(xii) such Indebtedness will not conflict with or violate the
terms of this Agreement or any other Loan Document; and
(xiii) prior to the issuance of such Indebtedness the Agents
shall have received copies of drafts in final form or execution copies of all
material documents with respect to such Indebtedness and such documents shall be
reasonably acceptable to the Agents based upon the requirements of this
definition of Permitted Additional AWR Indebtedness.
The Loan Parties shall promptly after issuance of Permitted
Additional AWR Indebtedness deliver to the Agents and the Banks a copy of the
material documents with respect to the issuance of such Indebtedness.
- 24 -
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 in
the highest categories by Standard & Poor's or Moody's on the date of
acquisition; and
(iii) Demand deposits, time deposits or certificates of
deposit maturing within one year in a commercial bank whose obligations are
rated A-1, A or the equivalent or better by Standard & Poor's on the date of
determination.
Permitted 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.
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
- 25 -
ordinary course payment of worker's compensation, reclamation liabilities or
royalty bonds) in an amount exceeding $50,000,000 shall not be in the ordinary
course of business);
(v) Encumbrances consisting of zoning restrictions, easements
or other restrictions on the use of real property, none of which materially
impairs the use of such property or the value thereof, and none of which is
violated in any material respect by existing or proposed structures or land use;
(vi) Liens granted in the Collateral and Additional Collateral
(subsequent to the Additional Collateral Trigger Date), subject to the
Collateral Sharing Agreement, to any Lender providing any Interest Rate
Protection Agreement or any Commodity Price Protection Agreement;
(vii) Liens on property leased by any Loan Party or Subsidiary
of a Loan Party under capital leases (as the nature of such lease is determined
in accordance with GAAP) permitted under Section 7.2.9 [Off-Balance Sheet
Financing and Capital Leases] hereof securing obligations of such Loan Party or
Subsidiary to the lessor under such leases;
(viii) The following:
(1) With respect to any member of the Arch Coal Group,
Liens on assets of the Arch Coal Group securing Indebtedness (other
than Indebtedness secured by Liens described in clause (vii) above)
of not more than $25,000,000 at any time, provided, however, that
(a) in the case of Liens in respect of Purchase Money Security
Interests, such Liens attach to the assets that are purchased or
acquired concurrently with or within 90 days after the purchase or
acquisition thereof and (b) in the case of Liens not otherwise
permitted by the immediately preceding clause (a), such Liens do not
in the aggregate materially detract from the value of the assets
subject to such Liens nor do such Liens materially impair the use of
such assets subject to such Liens in the operation of the business
of the Arch Coal Group; and
(2) With respect to Arch Western and its Subsidiaries,
Liens on assets of the Arch Western Group securing Indebtedness
(other than Indebtedness secured by Liens described in clause (vii)
above) of not more than $25,000,000 at any time, provided, however,
that (a) in the case of Liens in respect of Purchase Money Security
Interests, such Liens attach to the assets that are purchased or
acquired concurrently with or within 90 days after the purchase or
acquisition thereof and (b) in the case of Liens not otherwise
permitted by the immediately preceding clause (a), such Liens do not
in the aggregate materially detract from the value of the assets
subject to such Liens nor do such Liens materially impair the use of
such assets subject to such Liens in the operation of the business
of the Arch Western Group;
(ix) 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
- 26 -
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 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;
(x) any Lien or restriction resulting from ownership, by an
entity other than an Affiliate of the Borrower, of a minority interest in Canyon
Fuel;
(xi) Liens granted in (A) the Collateral under the Collateral
Documents and (B) the Additional Collateral under the Additional Collateral
Documents to the Administrative Agent for the benefit of the Lenders;
(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;
(xiii) Liens, to secure obligations under a Permitted
Receivables Financing, in those accounts receivable or contracts giving rise to
accounts receivable of any member of the Arch Coal Group or of any
Securitization Subsidiary, which accounts receivable or contracts giving rise to
accounts receivable are either to be sold by a member of the Arch Coal Group to
the Securitization Subsidiary as part of a Permitted Receivable Financing or
which are an asset of the Securitization Subsidiary;
(xiv) as collateral security for the AWR Senior Notes or other
Permitted Additional AWR Indebtedness, collateral consisting of no more than the
pledge by Arch Western of the Eligible Note Receivable; and
(xv) as collateral security for Indebtedness permitted by
clause (xi) of Section 7.2.1 [Indebtedness], collateral consisting of no more
than the pledge by Arch Western of the Eligible Note Receivable.
- 27 -
Permitted Loan Origination Expense shall mean the aggregate
amount of the following fees and expenses required to be capitalized in
accordance with GAAP: (i) all fees and expenses incurred by the Borrower, in
connection with the closing of the transactions on the Closing Date under the
Original Credit Agreement and under the Arch Western Credit Facility (1998) then
in effect, (ii) all fees and expenses incurred by the Borrower in connection
with the amendment dated as of January 21, 2000 to the Original Credit
Agreement, (iii) all fees and expenses incurred by the Borrower in connection
with the amendment and restatement of the Original Credit Agreement on the
Restatement Effective Date and in connection with the amendment and restatement
of the Arch Western Credit Facility (1998) as amended and restated on such date,
(iv) all fees and expenses incurred by the Borrower in connection with the
issuance of the AWR Senior Notes, (v) all fees and expenses incurred by the
Borrower in connection with the amendments dated January 27, 2003 and June 25,
2003 to the Original Credit Agreement, (vi) all fees and expenses incurred by
Arch Western in connection with the Arch Western Term Facility, (vii) all fees
and expenses incurred by the Borrower in connection with the Third Amendment,
and (viii) all fees and expenses incurred by the Borrower in connection with the
amendment and restatement of the Original Credit Agreement on the Second
Restatement Effective Date.
Permitted Receivables Financing shall mean a transaction or
series of transactions pursuant to which a Securitization Subsidiary purchases
accounts receivable or contracts giving rise to accounts receivable from any one
or more members of the Arch Coal Group and finances such accounts receivable
through the issuance of Indebtedness or equity interests or through the sale of
such accounts; provided that (a) the Board of Directors of the Borrower shall
have determined in good faith that such Permitted Receivables Financing is
economically fair and reasonable to the Borrower, (b) all sales of accounts
receivables to or by such Securitization Subsidiary are made at fair market
value (as determined in good faith by the Board of Directors of the Borrower),
(c) the provisions thereof shall be market terms (as determined in good faith by
the Board of Directors of the Borrower), (d) no portion of the Indebtedness of a
Securitization Subsidiary is guaranteed by or is recourse to the Borrower or any
of its other Subsidiaries (other than recourse for customary representations,
warranties, covenants and indemnities, none of which shall related to the
collectibility of such accounts receivable), (e) neither the Borrower nor any of
its other Subsidiaries has any obligation to maintain or preserve such
Securitization Subsidiary's financial condition, (f) the aggregate amount of
accounts receivable and contracts giving rise to accounts receivable sold by the
members of the Arch Coal Group shall not exceed $75,000,000, and 50 % of the
principal amount of the financing thereof to the Arch Coal Group, immediately
upon the closing of such financing transaction, shall be used to make a
permanent reduction of the Revolving Credit Commitments, and (g) the Borrower
shall have received the written consent of all Banks to such transaction.
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
- 28 -
and either (i) is maintained by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained by any entity which was at such time a member of the ERISA
Group for employees of any entity which was at such time a member of the ERISA
Group.
Pledge Agreements shall mean collectively the Amended and
Restated Pledge Agreement in substantially the form of Exhibit 1.1(P) hereto and
each other pledge agreement in form and substance acceptable to the
Administrative Agent, each as executed and delivered by the applicable Loan
Parties for the benefit of the Lenders, as the same may be supplemented,
amended, restated, replaced, or modified from time to time, and Pledge Agreement
shall mean any of the Pledge Agreements.
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.
Potential Default shall mean any event or condition which with
notice, passage of time or a determination by the Administrative Agent or the
Required Banks, or any combination of the foregoing, would constitute an Event
of Default.
Principal Office shall mean the main banking office of the
Administrative Agent in Pittsburgh, Pennsylvania.
Prior Security Interest shall mean a valid and enforceable
perfected first-priority security interest under the Uniform Commercial Code in
the Collateral and the Additional Collateral (subsequent to the Additional
Collateral Trigger Date) subject only to Liens for taxes not yet due and payable
to the extent such prospective tax payments are given priority by statute or, in
the case of the Collateral and the Additional Collateral (subsequent to the
Additional Collateral Trigger Date), Purchase Money Security Interests as
permitted hereunder.
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.
- 29 -
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, without limitation, any
substance, material or waste, regardless of its form or nature, defined under
Environmental Laws as a "hazardous substance," "pollutant," "pollution,"
"contaminant," "hazardous or toxic substance," "extremely hazardous substance,"
"toxic chemical," "toxic substance," "toxic waste," "hazardous waste," "special
handling waste," "industrial waste," "residual waste," "solid waste," "municipal
waste," "mixed waste," "infectious waste," "chemotherapeutic waste," "medical
waste," or "regulated substance" or any other material, substance or waste,
regardless of its form or nature, which is regulated by the Environmental Laws
due to its radioactive, ignitable, corrosive, reactive, explosive, toxic,
carcinogenic or infectious properties or nature, or which otherwise is regulated
by any applicable Environmental Laws including, without limitation, coal and
other minerals, coal refuse, run-of-mine coal, acid mine drainage, petroleum and
petroleum products (including crude oil and any fractions thereof), natural gas,
coalbed methane gas, synthetic gas and any mixtures thereof, asbestos, urea
formaldehyde, polychlorinated biphenyls, mercury and radioactive substances.
Regulation U shall mean Regulation U, T or X as promulgated by
the Board of Governors of the Federal Reserve System, as amended from time to
time.
Reimbursement Obligation shall have the meaning assigned to
such term in Section 2.9.3.2.
Release shall mean anything defined as a "release" under
CERCLA or RCRA.
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.
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 more than 50% 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
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group of Banks if the sum of the principal amount of the Revolving Credit
Commitments of such Banks aggregates more than 50% of 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 more than 50% 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.
Restatement Effective Date shall mean April 18, 2002.
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 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 2.9.3.
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, as the same may be supplemented, amended, restated, refinanced, replaced,
or modified from time to time 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 Swing Loans outstanding and the Letters
of Credit Outstanding.
SEC shall mean the Securities and Exchange Commission or any
governmental agencies substituted therefor.
Second Amendment Effective Date shall mean June 25, 2003.
Second Restatement Effective Date shall mean the date of the
satisfaction of each and every condition set forth in Section 6.1 hereof, which
date is August 20, 2004.
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Securitization Subsidiary shall mean a Subsidiary of the
Borrower (all of the outstanding equity interests of which, other than de
minimis preferred stock and director's qualifying shares, if any, are owned,
directly or indirectly, by the Borrower) or another special purpose vehicle that
is established for the limited purpose of acquiring and financing accounts
receivables and contracts giving rise to accounts receivable of any member of
the Arch Coal Group and engaging in activities ancillary thereto.
Security Agreements shall mean collectively the security
agreements in form and substance acceptable to the Administrative Agent, each as
executed and delivered by the applicable Loan Parties for the benefit of the
Lenders, as the same may be supplemented, amended, restated, replaced, or
modified from time to time, and Security Agreement shall mean any of the
Security Agreements.
Settlement Date shall mean each Business Day on which the
Administrative Agent effects settlement pursuant to Section 4.7.
Significant Subsidiary shall mean individually any Subsidiary
of Borrower other than the Excluded Subsidiaries, each Securitization Subsidiary
and the Inactive Subsidiaries, and Significant Subsidiaries shall mean
collectively all Subsidiaries of Borrower other than the Excluded Subsidiaries,
each Securitization Subsidiary and the Inactive Subsidiaries.
Solvent shall mean, with respect to any Person on a particular
date, that on such date (i) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (ii) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (iv) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (v) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged. In computing the
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.
Standard & Poor's shall mean Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
- 32 -
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.
Subordination Agreement shall mean the Amended and Restated
Subordination Agreement (Intercompany) in substantially the form of Exhibit
1.1(S)(1), executed and delivered by each Loan Party for the benefit of the
Lenders, as the same may be supplemented, amended, restated, replaced, or
modified from time to time.
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, without duplication, for
purposes of calculating the Leverage Ratio, the Fixed Charge Coverage Ratio and
inclusion in Section 7.2.9 [Off-Balance Sheet Financing and Capital Leases], 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 $40,000,000.
Swing Loan Note shall mean the Swing Loan Note of the Borrower
in the form of Exhibit 1.1(S)(2) evidencing the Swing Loans, as the same may be
supplemented, amended, restated, refinanced, replaced, or modified from time to
time in whole or in part.
Swing Loan Request shall mean a request for Swing Loans made
in accordance with Section 2.4.2 hereof.
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.
- 33 -
Syndication Agent shall mean JPMorgan Chase in its capacity as
syndication agent for the Banks under this Agreement and its successors in such
capacity.
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.
Third Amendment shall mean the amendment dated as of August
19, 2003 to the Original Credit Agreement.
Third Amendment Fee Letter shall mean the agreement among
Administrative Agent, PNC Capital Markets, Inc. and the Borrower with respect to
fees payable by the Borrower in connection with the transactions contemplated by
Third Amendment and by the amendment and restatement of the Original Credit
Agreement on the Second Restatement Effective Date.
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.
Total Net Funded Debt shall mean, as of any date of
determination, an amount equal to the difference between the amount under the
following clause (a) and the amount under the following clause (b):
(a) the aggregate amount of Debt of the Borrower and it
Subsidiaries as of such date, less
(b) the positive difference, if any, between (i) the aggregate
amount of all cash and cash equivalents of the Borrower and its Subsidiaries as
determined, on a consolidated basis in accordance with GAAP, as of such date and
(ii) the sum of Revolving Credit Loans outstanding as of such date and Swing
Loans outstanding as of such date.
Transferor Bank shall mean the selling Bank pursuant to an
Assignment and Assumption Agreement.
Triton shall mean Triton Coal Company LLC, a Delaware limited
liability company.
Triton EBITDDA for any period of determination, shall mean
with respect to Triton, the sum of (a) income from operations (with income from
operations determined, without duplication: (1) before the effect of changes in
accounting principles, and (2) without regard to the effect, without
duplication, of nonrecurring charge and, extraordinary items), plus (b) to the
extent deducted in the determination of such income from operations the sum of
net
- 34 -
interest expense, income taxes, depreciation, depletion and amortization, with
all amounts for purposes of clause (a) and clause (b) for such period determined
in accordance with GAAP.
Triton EBITDDA Adjustment shall mean the sum of Triton Pro
Forma EBITDDA plus Triton Synergistic Savings.
Triton EBITDDA Period shall have the meaning assigned to such
term in Section 6.1.17.
Triton Integration Expenses shall mean expenses (as determined
in accordance with GAAP and expressly excluding any amount therefrom which is
capitalized in accordance with GAAP) of up to $15,000,000 in the aggregate
incurred by the Borrower and its Subsidiaries prior to the one-hundred eighty
first (181) day following the date of consummation of the Vulcan Acquisition for
permanent improvements to the mining operations acquired as part of the Vulcan
Acquisition for the purposes of the following: exploration drilling sample
analysis, de-watering system installation, lease bid acquisition obligations,
permit renewal/annual report, NOx Program obligations, flood control/reclamation
catch-up, maintenance items for operations and plant, and employee severance and
retention payments. The amount of Triton Integration Expenses shall be set forth
by the Borrower on its quarterly compliance certificates delivered pursuant to
Section 7.3.3 and reasonably satisfactory to the Administrative Agent.
Triton Pro Forma EBITDDA shall mean the dollar amount of
Triton EBITDDA which shall satisfy all of the following conditions:
(i) such amount shall be reasonably satisfactory to the
Administrative Agent,
(ii) such amount shall be based upon Triton EBITDDA for the
Triton EBITDDA Period, and
(iii) the Chief Executive Officer, President or Chief
Financial Officer of the Borrower shall have certified to the Administrative
Agent for the benefit of the Banks the amount of the Triton EBITDDA for the
Triton EBITDDA Period, with such certificate to be in form, substance and detail
reasonably satisfactory to the Administrative Agent and with Triton EBITDDA for
the Triton EBITDDA Period to be based upon financial statements and other
supporting accounting and financial information reasonably satisfactory to the
Administrative Agent.
Triton Synergistic Savings shall mean $10,000,000 in the
aggregate, which is the amount of expenses estimated by the Borrower (to the
reasonable satisfaction of the Administrative Agent) to be saved on a fiscal
year basis from combining the operations of the Vulcan Joinder Company with the
existing operations of the Borrower and its Subsidiaries.
UBS Debt shall mean any Indebtedness outstanding on or before
the Second Restatement Effective Date arising out of (i) that certain Amended
and Restated Loan Agreement dated December 1, 1998 and amended and restated on
May 15, 2000 among Triton
- 35 -
Coal Company, LLC, Vulcan Intermediary, L.L.C., UBS Warburg LLC, as arranger,
and UBS AG, Stamford Branch, as lender and administrative agent for the lender,
in the principal amount of $215,000,000, and (ii) that certain Amended and
Restated Senior Subordinated Credit Agreement dated May 15, 2000 and amended and
restated on December 29, 2000 among Triton Coal Company, LLC, Vulcan
Intermediary, L.L.C., as Guarantor, UBS Warburg LLC, as arranger, and UBS AG,
Stamford Branch, as lender and administrative agent for the lender.
Uniform Commercial Code shall have the meaning assigned to
that term in Section 5.1.23.
USA Patriot Act shall mean the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall
hereafter be, renewed, extended, amended or replaced.
U.S. shall mean the United States of America.
U.S. Bank shall mean U.S. Bank National Association, its
successors and assigns.
Vulcan Acquisition shall mean the transactions contemplated by
the Vulcan Merger Agreement, as such document may be amended, modified or
supplemented after the Second Restatement Effective Date as permitted by Section
7.2.15.
Vulcan Acquisition Documents shall mean collectively the
Vulcan Merger Agreement and all other material agreements in connection
therewith, as the same may be amended, modified or supplemented after the Second
Restatement Effective Date as permitted by Section 7.2.15.
Vulcan Joinder Company shall mean Triton Coal Company, LLC, a
Delaware limited liability company.
Vulcan Merger Agreement shall mean that certain Merger and
Purchase Agreement among Borrower, Triton Acquisition LLC, a Delaware limited
liability company, New Vulcan Coal Holdings, L.L.C., a Delaware limited
liability company and Vulcan Coal Holdings, L.L.C., a Delaware limited liability
company, dated as of May 29, 2003, together with all schedules and exhibits
thereto, as the same may be amended, restated, modified or supplemented after
the Second Restatement Effective Date as permitted by Section 7.2.15.
Vulcan Seller Parties shall mean collectively New Vulcan Coal
Holdings, L.L.C., a Delaware limited liability company, Vulcan Coal Holdings,
L.L.C., a Delaware limited liability company, Vulcan Intermediary, L.L.C., a
Delaware limited liability company, and Triton Coal Company, LLC, a Delaware
limited liability company, and Vulcan Seller Party shall mean each such Person.
Withholding Certificate shall have the meaning assigned to
that term in Section 10.17.1.
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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;
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
- 37 -
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 Restatement Effective Date applied
on a basis consistent with those used in preparing the Historical Statements
referred to in Section 5.1.7(i) [Historical Statements]. In the event of any
change after the Restatement Effective Date in GAAP, and if such change would
result in the inability to determine compliance with the financial covenants set
forth in Section 7.2 based upon the Borrower's regularly prepared financial
statements by reason of the preceding sentence, then the parties hereto agree to
endeavor, in good faith, to agree upon an amendment to this Agreement that would
adjust such financial covenants in a manner that would not affect the substance
thereof, but would allow compliance therewith to be determined in accordance
with the Borrower's financial statements at that time.
- 38 -
2. REVOLVING CREDIT AND SWING LOAN FACILITIES
2.1 Revolving Credit Commitments.
2.1.1 Revolving Credit Loans.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, each 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 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
2.1.1.
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 $40,000,000 (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. 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 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 Fees; Commitment 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 commitment fee (the "Commitment Fee") equal to the Applicable
Commitment Fee Rate computed (on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed) on the average daily
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difference between the amount of (i) such Bank's Revolving Credit Commitment as
the same may be constituted from time to time (for purposes of this computation,
PNC Bank's Swing Loans shall not be deemed to be borrowed amounts under its
Revolving Credit Commitment), and (ii) the sum of such Bank's Revolving Credit
Loans outstanding plus its Revolving Credit Ratable Share of the Letters of
Credit Outstanding. All Commitment Fees shall be payable in arrears on the first
Business Day of each July, October, January and April after the date hereof and
on the Expiration Date or upon acceleration of the Loans.
2.4 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 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 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; and (ii) one (1) Business Day prior to either the
proposed Borrowing Date with respect to the making of a Revolving Credit Loan to
which the Base Rate Option applies or the last day of the preceding Interest
Period with respect to the conversion to the Base Rate Option for any Revolving
Credit 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 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 Euro-Rate Option
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 Euro-Rate Option or Base Rate Option
shall apply to the proposed Revolving Credit Loans comprising an applicable
Borrowing Tranche; and (iv) in the case of a Borrowing Tranche to which the
applicable Euro-Rate Option applies, an appropriate 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
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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
Committed Loan Request pursuant to Section 2.4.1 [Committed Loan Requests],
notify the Banks of its receipt of such Committed 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.
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.
On and after the Restatement Effective Date, the proceeds of the
Loans shall be used to continue and refinance the indebtedness under the
revolving credit facility of the Original Credit Agreement, to repay the term
loans under the Original Credit Agreement, and 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
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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 Letter of Credit Subfacility.
2.9.1 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 or
having such other Loan Party deliver 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 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 2.9.1, 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, $200,000,000, (ii) Reimbursement Obligations (contingent or
otherwise) exceed, at any one time, $10,000,000, with respect to Commercial
Letters of Credit, or (iii) 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
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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 [Requirements
for Significant Subsidiaries]. Schedule 2.9.1 sets forth letters of credit,
issued by PNC Bank as an "Issuing Bank" under the Original Credit Agreement,
which are outstanding as of the Restatement Effective Date (the "Existing
Letters of Credit"). It is expressly agreed that the Existing Letters of Credit
are Letters of Credit under this Agreement.
2.9.2 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 (i)
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)
and (ii) to the Administrative Agent for its own account a fronting fee equal to
0.125% per annum (computed on the basis of a year of 360 days and actual days
elapsed), which fees 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.
2.9.3 Participations in Letters of Credit; Disbursements,
Reimbursement.
2.9.3.1 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 2.9.3.2 by making its Revolving Credit
Ratable Share of the Revolving Credit Loans referred to in Section 2.9.3.3
available to the Administrative Agent for the account of the Issuing Bank. Upon
the 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.
2.9.3.2 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
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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 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 2.9.3.2 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.
2.9.3.3 Each Bank shall upon any notice pursuant to
Section 2.9.3.2 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 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 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
2.9.3.3.
2.9.4 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.
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2.9.5 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.
2.9.6 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 2.9.3 [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
2.9.6 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 2.9.3 [Participations in Letters of Credit;
Disbursements; Reimbursement];
(iii) any lack of validity or enforceability of any
Letter of Credit;
(iv) any claim of breach of warranty that might be made
by any Loan Party or any Bank against any beneficiary of a Letter of Credit, or
the existence of any claim, set-off, recoupment, counterclaim, crossclaim,
defense or other right which any Loan Party or any Bank may have at any time
against a beneficiary, successor beneficiary, or any transferee or assignee of
any Letter of Credit or the proceeds thereof (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) the lack of power or authority of any signer of (or
any defect in or forgery of any signature or endorsement on) or the form of or
lack of validity, sufficiency, accuracy, enforceability or genuineness of any
draft, demand, instrument, certificate or other document presented under or in
connection with any Letter of Credit or any fraud or
- 45 -
alleged fraud in connection with any Letter of Credit, or the transport of any
property or provisions of services relating to a Letter of Credit, in each case
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) the solvency of, or any acts or omissions by, any
beneficiary of any Letter of Credit, or any other Person having a role in any
transaction or obligation relating to a Letter of Credit, or the existence,
nature, quality, quantity, condition, value or other characteristic of any
property or services relating to a Letter of Credit;
(viii) any failure by the Issuing Bank to issue any
Letter of Credit in the form requested by any Loan Party, unless the Issuing
Bank has received written notice from such Loan Party of such failure within
three Business Days after the Issuing Bank shall have furnished such Loan Party
a copy of such Letter of Credit and such error is material and no drawing has
been made thereon prior to receipt of such notice;
(ix) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of any Loan
Party or Subsidiaries of a Loan Party;
(x) any breach of this Agreement or any other Loan
Document by any party thereto;
(xi) the occurrence or continuance of an Insolvency
Proceeding with respect to any Loan Party;
(xii) the fact that an Event of Default or a Potential
Default shall have occurred and be continuing;
(xiii) the fact that the Expiration Date shall have
passed or this Agreement or the Commitments hereunder shall have been
terminated; and
(xiv) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
2.9.7 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,
taxes, penalties, interest, judgments, 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
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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 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").
2.9.8 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 any of the following including any losses
or damages to any Loan Party or other Person or property relating therefrom: (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the Issuing 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 no event shall
any Issuing Bank or any Agent be liable to any Loan Party for any indirect,
consequential, incidental, punitive, exemplary or special damages or expenses
(including without limitation attorneys' fees), or for any damages resulting
from any change in the value of any property relating to a Letter of Credit.
Without limiting the generality of the foregoing, each Issuing
Bank and the Agents (i) may rely on any oral or other communication believed in
good faith by any Issuing
- 47 -
Bank or any Agent to have been authorized or given by or on behalf of the
applicant for a Letter of Credit, (ii) may honor any presentation if the
documents presented appear on their face substantially to comply with the terms
and conditions of the relevant Letter of Credit; (iii) may honor a previously
dishonored presentation under a Letter of Credit, whether such dishonor was
pursuant to a court order, to settle or compromise any claim of wrongful
dishonor, or otherwise, and shall be entitled to reimbursement to the same
extent as if such presentation had initially been honored, together with any
interest paid by the Agent; (iv) may honor any drawing that is payable upon
presentation of a statement advising negotiation or payment, upon receipt of
such statement (even if such statement indicates that a draft or other document
is being delivered separately), and shall not be liable for any failure of any
such draft or other document to arrive, or to conform in any way with the
relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming
that it rightfully honored under the laws or practices of the place where such
bank is located; and (vi) may settle or adjust any claim or demand made on the
Agent in any way related to any order issued at the applicant's request to an
air carrier, a letter of guarantee or of indemnity issued to a carrier or any
similar document (each an "Order") and honor any drawing in connection with any
Letter of Credit that is the subject to such Order, notwithstanding that any
drafts or other documents presented in connection with such Letter of Credit
fail to conform in any way with such Letter of Credit.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by 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.
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 as selected by it from the Base
Rate Option or Euro-Rate Option set forth below applicable to the Revolving
Credit 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
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 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 accruing interest at a Euro-Rate Option,
and provided further that only the Offered Rate Option shall apply to the Swing
Loans. 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.
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3.1.1 Interest Rate Options.
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) Base Rate Option: A fluctuating rate per annum
(computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) equal to the Base Rate plus the Applicable Margin, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate; or
(ii) Euro-Rate Option: A rate per annum (computed on the
basis of a year of 360 days and actual days elapsed) equal to the Euro-Rate plus
the Applicable Margin.
Notwithstanding the foregoing, on the Restatement Effective 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 III thereof. It is expressly agreed that after the
Restatement Effective Date, the Applicable Margin shall be determined, based
upon the applicable Debt Rating in effect from time to time, as set forth in
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, 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 Commitment Fee Rate is
increased or reduced with respect to any period for which the Borrower has
already paid interest or Commitment Fees, the Administrative Agent shall
recalculate the additional interest or Commitment 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 Commitment 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 Commitment Fees shall be paid promptly
after receipt of written request for payment from the Administrative Agent.
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3.1.3.2 Any interest or Commitment 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 Commitment 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
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 Committed Loan Request. The notice shall specify an
interest period (the "Interest Period") during which such Euro-Rate Option shall
apply, such Interest Period to be one, two, three or six Months. The following
provisions shall apply to any selection of, renewal of, or conversion to a
Euro-Rate Option:
3.2.1 Ending Date and Business Day.
any Interest Period which would otherwise end on a date which
is not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
3.2.2 Amount of Borrowing Tranche.
each Borrowing Tranche of Revolving Credit Loans to which the
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, after the Expiration Date; and
3.2.4 Renewals.
in the case of the renewal of a Euro-Rate Option at the end of
an Interest Period, the first day of the new Interest Period shall be the last
day of the preceding Interest Period, without duplication in payment of interest
for such day.
3.3 Interest After Default.
To the extent permitted by Law, upon the occurrence of an Event of
Default and until such time such Event of Default shall have been cured or
waived:
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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 2.9.2 [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.
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, 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
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(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.
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 selection of, conversion to
or renewal of the Base Rate Option otherwise available with respect to such
Revolving Credit Loans if the Borrower has requested the Euro-Rate Option with
respect to such Revolving Credit 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 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
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Tranche to the Base Rate Option in the case of Revolving Credit Loans commencing
upon the last day of the existing Interest Period.
4. PAYMENTS
4.1 Payments.
All payments and prepayments to be made in respect of principal,
interest, Commitment Fees, Letter of Credit Fees, Administrative Agent's Fee or
other fees or amounts due from the Borrower hereunder shall be payable prior to
11:00 a.m., Pittsburgh time, on the date when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by the
Borrower, and without set-off, counterclaim or other deduction of any nature,
and an action therefor shall immediately accrue. Such payments shall be made to
the Administrative Agent at the Principal Office for the account of PNC Bank
with respect to the Swing Loans and for the ratable accounts of the Banks with
respect to the Revolving Credit Loans, in U.S. Dollars and in immediately
available funds, and the Administrative Agent shall promptly distribute such
amounts to the 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." The principal amount of the Revolving Credit Loans,
together with accrued interest, fees and all other Obligations payable thereon
shall be due and payable on the Expiration Date.
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, and each selection of,
conversion to or renewal of any Interest Rate Option applicable to Revolving
Credit Loans and each payment or prepayment by the Borrower with respect to
principal or interest on the Revolving Credit Loans or Commitment 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, 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 outstanding from each Bank
and, if no such Loans are then outstanding, in proportion, as applicable, to the
Revolving Credit Ratable Share of each Bank. Notwithstanding any of the
foregoing, each 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.
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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 Committed Loans
(other than Swing Loans) to which the Euro-Rate Option applies shall be due and
payable on the last day of each Interest Period for those Loans and, if such
Interest Period is longer than three (3) Months, also on the date that is three
(3) Months after the commencement of such Interest Period (and if applicable,
the date that is six (6) Months after the commencement of such Interest Period)
of such Interest Period. Interest on the principal amount of 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:
(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 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
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$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 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. 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 Base Rate Option
applies, and then (iii) finally to Revolving Credit Loans to which the Euro-Rate
Option applies. Any prepayment hereunder shall be subject to the Borrower's
Obligation to indemnify the Banks under Section 4.5.2 [Indemnity].
4.4.2 Replacement of a 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 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 and fees
accrued thereon and all other amounts due and payable to such Lender under the
Loan Documents, and terminate such Lender's Commitment within ninety (90) days
after (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 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 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 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 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. Notwithstanding the foregoing, the Administrative
Agent may only be replaced subject to the requirements of Section 9.14
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[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.
4.4.5 Mandatory Prepayment Upon Sale of Assets; Mandatory
Reduction of Revolving Credit Commitments.
Within five (5) Business Days of any sale of assets by any
member of the Arch Coal Group authorized by Section 7.2.4(vi) [Disposition of
Assets or Subsidiaries] and immediately upon the closing of any Permitted
Receivables Financing, the Revolving Credit Commitments shall automatically and
permanently be reduced in an amount equal to, in the case of an asset sale under
Section 7.2.4(vi), the Net Cash Proceeds of such sale of assets (as estimated in
good faith by the Borrower) or, in the case of a Permitted Receivables
Financing, 50% of the principal amount of such financing; provided, however,
that, in the case of a sale of assets authorized by Section 7.2.4(vi), the
Revolving Credit Commitments shall not be required to be reduced below
$150,000,000. On the date of any reduction of the Revolving Credit Commitments
pursuant to this Section 4.4.5, the Borrower shall make a mandatory prepayment
of so much of the Revolving Credit Loans as shall be necessary in order that the
Revolving Facility Usage will not exceed the Revolving Credit Commitments after
giving effect to such reduction. Any prepayment hereunder shall be subject to
the Borrower's Obligation to the Banks under Section 4.5.2 [Indemnity]. If the
Debt Rating applicable to the Borrower is BBB- or better
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by Standard & Poor's or Baa3 or better by ▇▇▇▇▇'▇, then at any time when either
such Debt Rating is in effect, if any member of the Arch Coal Group sells assets
in accordance with Section 7.2.4(vi), no reduction of the Revolving Credit
Commitments pursuant to this Section 4.4.5 will be required to be made. No
reduction of the Revolving Credit Commitments will be required under this
Section 4.4.5 with respect to proceeds of the MLP Transaction.
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 payments by
the Borrower of principal, interest, Commitment 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, 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.
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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 fund or
maintain Loans subject to a Euro-Rate Option) which such Lender sustains or
incurs as a consequence of any
(i) payment, prepayment, conversion or renewal of any
Loan to which a Euro-Rate Option applies on a day other than the last day of the
corresponding Interest Period (whether or not such payment or prepayment is
mandatory, voluntary or automatic and whether or not such payment or prepayment
is then due);
(ii) attempt by the Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or part any Committed Loan
Requests under Section 2.4.1 [Committed Loan Requests], Section 2.4.2 [Swing
Loan Requests], or Section 3.2 [Interest Periods] or notice relating to
prepayments under Section 4.4.1 [Voluntary Prepayments]; or
(iii) default by the Borrower in the performance or
observance of any covenant or condition contained in this Agreement or any other
Loan Document, including any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal of or interest on the Committed Loans,
Commitment Fees or any other amount due hereunder.
If any Lender sustains or incurs any such loss or expense, it shall from time to
time notify the Borrower of the amount determined in good faith by such Lender
(which determination may include such assumptions, allocations of costs and
expenses and averaging or attribution methods as such Lender shall deem
reasonable) to be necessary to indemnify such Lender for such loss or expense.
Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such
Lender ten (10) Business Days after such notice is given.
4.6 Notes.
Upon the request of any Bank, the Revolving Credit Loans made by
such Bank may be evidenced by a Revolving Credit Note in the form of Exhibit
1.1(R).
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 Loans and the Swing Loans
(each a "Required Share"). Prior to 2:00 p.m., Pittsburgh time, on
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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 jurisdiction on amounts payable under this subsection) paid by
such Lender and any liability
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(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:
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
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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.
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. Schedule 5.1.2 also sets forth
the jurisdiction of incorporation of the Borrower, its authorized capital stock
(the "Borrower Shares"), the voting rights associated therewith, and whether
such Subsidiary is a Significant Subsidiary, Inactive Subsidiary or a Special
Subsidiary. 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. 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.
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. The Borrower and each
Subsidiary of the Borrower party to the Vulcan Acquisition Documents has full
power to enter into, execute, deliver and perform the Vulcan Acquisition
Documents to which it is a party, and all such actions have been duly authorized
by all necessary proceedings on its part.
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5.1.4 Validity and Binding Effect.
This Agreement has been duly and validly executed and
delivered by each Loan Party, and each other Loan Document which any Loan Party
is required to execute and deliver on or after the date hereof will have been
duly executed and delivered by such Loan Party on the required date of delivery
of such Loan Document. This Agreement and each other Loan Document constitutes,
or will constitute, legal, valid and binding obligations of each Loan Party
which is or will be a party thereto on and after its date of delivery thereof,
enforceable against such Loan Party in accordance with its terms, except to the
extent that enforceability of any of such Loan Document may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance. The Acquisition Documents have been duly and
validly executed and delivered by the Borrower and each of its Subsidiaries
party thereto. 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. The Vulcan Acquisition Documents
have been duly and validly executed and delivered by the Borrower and each of
its Subsidiaries party thereto. The Vulcan 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 Vulcan 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
Vulcan Acquisition Documents has been delivered to the Administrative Agent.
5.1.5 No Conflict.
Neither the execution and delivery of the Loan Documents or
the Vulcan Acquisition Documents by any Loan Party, nor the consummation of the
transactions herein or therein contemplated or compliance with the terms and
provisions hereof or thereof by any of them will conflict with, constitute a
default under or result in any breach of (i) the terms and conditions of the
certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation, limited liability company
agreement or other organizational documents of any Loan Party or any Subsidiary
of any Loan Party or (ii) any Law or any material agreement or instrument or
order, writ, judgment, injunction or decree to which any Loan Party or any
Subsidiary of any Loan Party is a party or by which any of the foregoing Persons
is bound or to which any of the foregoing Persons is subject, or result in the
creation or enforcement of any Lien, charge or encumbrance whatsoever upon any
property (now or hereafter acquired) of any Loan Party or any Subsidiary of any
Loan Party (other than Liens granted under the Loan Documents).
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5.1.6 Litigation.
Except as set forth on Schedule 5.1.6, 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.
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, 2002 (the "Historical
Statements"). The Historical Statements were compiled from the books and records
maintained by the Borrower's management, are correct and complete and fairly
represent the consolidated financial condition of the Borrower and its
Subsidiaries as of their dates and the results of operations for the fiscal
periods then ended and have been prepared in accordance with GAAP consistently
applied.
(ii) Accuracy of Financial Statements.
Neither the Borrower nor any Subsidiary of the Borrower has
on the Second Restatement Effective Date any liabilities, contingent or
otherwise, or forward or long-term commitments that are not disclosed in the
Historical Statements or in the notes thereto, and except as disclosed therein
there are no unrealized or anticipated losses from any commitments of the
Borrower or any Subsidiary of the Borrower which could reasonably be expected to
result in a Material Adverse Change. Since December 31, 2002, no Material
Adverse Change has occurred, except as set forth on Schedule 5.1.7.
(iii) Financial Projections. The Borrower has delivered
to the Agents financial projections of the Borrower and its Subsidiaries, on a
consolidated and consolidating basis, for the period January 1, 2003 through and
including December 31, 2006 derived from various assumptions of the Borrower's
management (the "Financial Projections"). On the Second Restatement Effective
Date, the Financial Projections represent a reasonable range of possible results
in light of the history of the business, present and foreseeable conditions and
the intentions of the Borrower's management. The Financial Projections
accurately reflect, in all material respects on a consolidated basis, the
liabilities of the Borrower and its Subsidiaries upon consummation of the
transactions contemplated hereby as of the Second Restatement Effective Date.
5.1.8 Use of Proceeds; Margin Stock.
5.1.8.1 General.
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The Loan Parties shall use the proceeds of the Loans in
accordance with Sections 2.7 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.
5.1.9 Full Disclosure.
Neither this Agreement nor any other Loan Document, nor the
Acquisition Documents, nor the Vulcan Acquisition Documents, nor any
certificate, statement, agreement or other documents furnished to the
Administrative Agent or any Lender in connection herewith, with the Acquisition
Documents or with the Vulcan Acquisition Documents, contains with respect to the
Borrower and its Subsidiaries any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
herein and therein, in light of the circumstances under which they were made,
not misleading. There is no fact known to any Loan Party which materially
adversely affects the business, financial condition or results of operations of
the Borrower and its Subsidiaries taken as a whole which has not been set forth
in this Agreement or in the certificates, statements, agreements or other
documents furnished in writing to the Administrative Agent and the Lenders prior
to or at the date hereof in connection with the transactions contemplated
hereby.
5.1.10 Taxes.
All federal, state, local and other tax returns required to
have been filed with respect to each Loan Party and each Subsidiary of each Loan
Party have been filed, and payment or adequate provision has been made for the
payment of all taxes, fees, assessments and other governmental charges which
have or may become due pursuant to said returns or to assessments received,
except to the extent that such taxes, fees, assessments and other charges are
being contested in good faith by appropriate proceedings diligently conducted
and for which such reserves or other appropriate provisions, if any, as shall be
required by GAAP shall have been made. There are no agreements or waivers
extending the statutory period of limitations applicable to any federal income
tax return of any Loan Party or Subsidiary of any Loan Party for any period.
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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 Second Restatement Effective 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 Second Restatement Effective 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 the definition of "Material Contracts" to which any Loan
Party or any Subsidiary of any Loan Party is a party or by which any Loan Party
or Subsidiary of any Loan Party is bound are valid, binding and enforceable upon
such Loan Party or Subsidiary and to the best knowledge of the Borrower upon
each of the other parties thereto in accordance with their respective terms, and
there is no default by any Loan Party or any Subsidiary of any Loan Party under
any Material Contract nor, to the Loan Parties' knowledge, any default
thereunder with respect to parties thereto other than any Loan Party or
Subsidiary of a Loan Party except in each case to the extent the same could not
reasonably be expected to result in a Material Adverse Change. None of the Loan
Parties or their Subsidiaries is bound by any contractual obligation, or subject
to any restriction in any organization document, or any requirement of Law which
could reasonably be expected to result in a Material Adverse Change.
5.1.13 Insurance.
No notice has been given or claim made and no grounds exist to
cancel or avoid any insurance policies or bonds to which the Loan Parties are
subject, or to reduce the coverage provided thereby. 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
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addressed in Section 5.1.18 [Environmental Matters]) in all jurisdictions in
which any Loan Party or Subsidiary of any Loan Party is doing business except
where the failure to do so could not reasonably be expected to result in a
Material Adverse Change.
5.1.15 Investment Companies; Regulated Entities.
None of the Loan Parties or any Subsidiaries of any Loan Party
is an "investment company" registered or required to be registered under the
Investment Company Act of 1940 or under the "control" of an "investment company"
as such terms are defined in the Investment Company Act of 1940 and shall not
become such an "investment company" or under such "control." None of the Loan
Parties or any Subsidiary of any Loan Party is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
5.1.16 Plans and Benefit Arrangements.
(i) The Borrower and each other member of the ERISA
Group are in compliance in all material respects with any applicable provisions
of ERISA with respect to all Benefit Arrangements, Plans, and Multiemployer
Plans. There has been no Prohibited Transaction with respect to any Benefit
Arrangement or any Plan or, to the best knowledge of the Borrower, with respect
to any Multiemployer Plan or Multiple Employer Plan, which could result in any
material liability of the Borrower or any other member of the ERISA Group. The
Borrower and all other members of the ERISA Group have made when due any and all
payments required to be made under any agreement relating to a Multiemployer
Plan or a Multiple Employer Plan or any Law pertaining thereto. With respect to
each Plan and Multiemployer Plan, the Borrower and each other member of the
ERISA Group (i) have fulfilled in all material respects their obligations under
the minimum funding standards of ERISA, (ii) have not incurred any liability to
the PBGC, and (iii) have not had asserted against them any penalty for failure
to fulfill the minimum funding requirements of ERISA. All Plans, Benefit
Arrangements, and Multiemployer Plans have been administered in accordance with
their terms and applicable Law.
(ii) No event requiring notice to the PBGC under Section
302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with
respect to any Plan, and no amendment with respect to which security is required
under Section 307 of ERISA has been made or is reasonably expected to be made to
any Plan.
(iii) Neither the Borrower nor any other member of the
ERISA Group has incurred or reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Borrower nor any other member of the ERISA Group has been notified
by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan
or Multiple Employer Plan has been terminated within the meaning of Title IV of
ERISA and, to the best knowledge of the Borrower, no Multiemployer Plan or
Multiple Employer Plan is reasonably expected to be reorganized or terminated,
within the meaning of Title IV of ERISA.
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5.1.17 Employment Matters.
Each of the Loan Parties and each of their Subsidiaries is in
substantial compliance with the Labor Contracts and all applicable federal,
state and local labor and employment Laws including those related to equal
employment opportunity and affirmative action, labor relations, minimum wage,
overtime, child labor, medical insurance continuation, worker adjustment and
relocation notices, immigration controls and worker and unemployment
compensation, where the failure to comply could reasonably be expected to result
in a Material Adverse Change. There are no outstanding grievances, arbitration
awards or appeals therefrom arising out of the Labor Contracts or current or
threatened strikes, picketing, handbilling or other work stoppages or slowdowns
at facilities of any of the Loan Parties or any of their Subsidiaries which in
any case could reasonably be expected to result in a Material Adverse Change.
5.1.18 Environmental Matters.
Except as set forth on Schedule 5.1.18:
(a) the Loan Parties and their Subsidiaries are and have been
in substantial compliance with all Environmental Laws, except where the failure
to so comply could not reasonably be expected to result in a Material Adverse
Change;
(b) the Loan Parties and their Subsidiaries hold and are
operating in substantial compliance with Environmental Permits, except where the
failure to so comply could not reasonably be expected to result in a Material
Adverse Change;
(c) neither any Property of any Loan Party or any Subsidiary
of any Loan Party nor their respective operations conducted thereon violates any
order of any Official Body made pursuant to Environmental Laws except for
noncompliance with respect thereto which could not reasonably be expected to
result in a Material Adverse Change;
(d) there are no pending or, to the knowledge of any Loan
Party, threatened Environmental Claims against any Property of any Loan Party or
any Subsidiary of any Loan Party nor against any Loan Party or any Subsidiary of
any Loan Party which could reasonably be expected to result in a Material
Adverse Change; and
(e) there are no pending or, to the knowledge of any Loan
Party, threatened Environmental Complaints against any Property of any Loan
Party or any Subsidiary of any Loan Party nor against any Loan Party or any
Subsidiary of any Loan Party which could reasonably be expected to result in a
Material Adverse Change.
5.1.19 Senior Debt Status.
The Obligations of each Loan Party under this Agreement, the
Guaranty Agreement and each of the other Loan Documents to which it is a party
do rank and will rank at least pari passu in priority of payment with 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
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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.
5.1.21 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 did not alter the rights of
Canyon Fuel under the Coastal Agreement.
5.1.22 Patents, Trademarks, Copyrights, Licenses, Etc.
Each Loan Party and each Subsidiary of each Loan Party owns or
possesses all the material patents, trademarks, service marks, trade names,
copyrights, licenses, registrations and franchises necessary to own and operate
its properties and to carry on its business as presently conducted and planned
to be conducted by such Loan Party or Subsidiary, without known possible,
alleged or actual conflict with the rights of others. All material patents,
trademarks, service marks, trade names, copyrights, licenses, registrations and
franchises of each Loan Party and each Subsidiary of each Loan Party are listed
and described on Schedule 5.1.22.
5.1.23 Security Interests and Mortgage Liens.
5.1.23.1 The Liens and security interests continued on the
Second Restatement Effective Date and granted to the Administrative Agent for
the benefit of the Lenders pursuant to the Collateral Documents, in the
Collateral constitute and will continue to constitute Prior Security Interests
under the Uniform Commercial Code as in effect in each applicable jurisdiction
(the "Uniform Commercial Code") or other applicable Law entitled to all the
rights, benefits and priorities provided by the Uniform Commercial Code or such
Law, subject only to Permitted Liens. Financing Statements relating to said
security interests have been filed in each office and in each jurisdiction where
required in order to perfect the security interests described above, possession
has been taken of all stock certificates or other certificates evidencing the
Collateral and there is no necessity for any further action in order to
preserve, protect and continue such rights, except the filing of continuation
statements with respect to such financing statements within six months prior to
each five-year anniversary of the filing of such financing statements or within
not less than six months prior to such other longer anniversary date in any
jurisdiction (and the Borrower shall notify the Administrative Agent, in writing
if such anniversary date is other than five years). All filing fees and other
expenses in connection with each such action have been or will be paid by the
Borrower.
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5.1.23.2 Subsequent to the Additional Collateral Trigger
Date and (a) upon the recordation of appropriate Financing Statements, the
Additional Collateral will constitute and will continue to constitute Prior
Security Interests under the Uniform Commercial Code as in effect in each
applicable jurisdiction (the "Uniform Commercial Code") or other applicable Law
entitled to all the rights, benefits and priorities provided by the Uniform
Commercial Code or such Law, subject only to Permitted Liens, (b) upon
recordation of the Patent, Trademark and Copyright Security Agreements in the
U.S. Patent and Trademark Office and the U.S. Copyright Office, as applicable,
all such action that is necessary or advisable to establish such rights to the
Administrative Agent will be taken, and no further action will be necessary in
order to preserve, protect and continue such rights, except the filing of
continuation statements with respect to such financing statements within six
months prior to each five-year anniversary of the filing of such financing
statements or within not less than six months prior to such other longer
anniversary date in any jurisdiction (and the Borrower shall notify the
Administrative Agent, in writing if such anniversary date is other than five
years). All filing fees and other expenses in connection with each such action
have been or will be paid by the Borrower.
Subsequent to the Additional Collateral Trigger Date and
upon the recordation of the Mortgages, the Liens granted for the benefit of the
Banks pursuant to the Mortgages will constitute valid first priority Lien under
applicable law, subject only to Permitted Liens. All such action as will be
necessary or advisable to establish such Lien and its priority as described in
the preceding sentence will be taken at or prior to the time required for such
purpose, and there will be as of the date of execution and delivery of the
Mortgages no necessity for any further action in order to protect, preserve and
continue such Lien and such priority.
5.1.24 Status of Pledged Collateral.
All the shares of capital stock, Partnership Interests or LLC
Interests included in the Collateral pledged pursuant to the Pledge Agreements
are or will be upon issuance validly issued and nonassessable and owned
beneficially and of record by the pledgor free and clear of any Lien or
restriction on transfer, except as otherwise provided by the Pledge Agreements
and except as the right of the Lenders to dispose of the shares of capital
stock, Partnership Interests or LLC Interests may be limited by the Securities
Act of 1933, as amended, and the regulations promulgated by the SEC thereunder
and by applicable state securities laws. There are no shareholder, partnership,
limited liability company or other agreements or understandings with respect to
the shares of capital stock, Partnership Interests or LLC Interests included in
the Collateral except for the partnership agreements and limited liability
company agreements described on Schedule 5.1.24. The Loan Parties have delivered
true and correct copies of such partnership agreements and limited liability
company agreements to the Administrative Agent.
5.1.25 Solvency.
On the Closing Date, the Restatement Effective Date, the
Second Restatement Effective Date and at the time of each borrowing of Revolving
Credit Loans, each of
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the Borrower and each other Loan Party is Solvent after giving effect to the
transactions contemplated by the Loan Documents and any incurrence of
Indebtedness and all other Obligations.
5.1.26 Anti-Terrorism Laws.
5.1.26.1 General.
None of the Loan Parties nor any Affiliate of any Loan Party,
is in violation of any Anti-Terrorism Law or engages in or conspires to engage
in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.
5.1.26.2 Executive Order No. 13224.
None of the Loan Parties, nor any Affiliate of any Loan Party,
or their respective agents acting or benefiting in any capacity in connection
with the Loans, Letters of Credit, other Obligations or other transactions
hereunder, is any of the following (each a "Blocked Person"):
(i) a Person that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order No. 13224;
(ii) a Person owned or controlled by, or acting for or
on behalf of, any Person that is listed in the annex to, or is otherwise subject
to the provisions of, the Executive Order No. 13224;
(iii) a Person with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a Person that commits, threatens or conspires to
commit or supports "terrorism" as defined in the Executive Order No. 13224;
(v) a Person that is named as a "specially designated
national" on the most current list published by the U.S. Treasury Department
Office of Foreign Asset Control at its official website or any replacement
website or other replacement official publication of such list, or
(vi) a Person who is affiliated with a Person listed
above.
No Loan Party or to the knowledge of any Loan Party, any of its agents acting in
any capacity in connection with the Loans, Letters of Credit or other
transactions hereunder (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit of
any Blocked Person, or (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to the
Executive Order No. 13224.
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5.2 Continuation of Representations.
Except as to those representations and warranties limited by their
terms to the Second Restatement Effective Date, the Borrower makes the
representations and warranties in this Section 5 on the Second Restatement
Effective Date and on 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 [Conditions to
Amendment and Restatement of Original Credit Agreement] and 6.2 [Each Additional
Loan or Letter of Credit].
6. CONDITIONS TO AMENDMENT AND RESTATEMENT OF ORIGINAL CREDIT AGREEMENT;
CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Lender to amend and restate the Original Credit
Agreement and 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 Conditions to Amendment and Restatement of Original Credit
Agreement.
On the Second Restatement Effective Date:
6.1.1 Officer's Certificate.
After giving effect to the consummation of the Vulcan
Acquisition, the consummation of the transactions contemplated by the Vulcan
Acquisition Documents and the Vulcan Joinder Company becoming a Loan Party under
the Loan Documents: (i) 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 Second Restatement
Effective Date with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which relate solely to an earlier date or time, which representations
and warranties shall be true and correct on and as of the specific dates or
times referred to therein), (ii) each of the Loan Parties shall have performed
and complied with all covenants and conditions hereof and thereof, and (iii) no
Event of Default or Potential Default shall have occurred and be continuing or
shall exist; and there shall be delivered to the Administrative Agent for the
benefit of each Lender a certificate of the Borrower dated the Second
Restatement Effective Date and signed by the Chief Executive Officer, President
or Chief Financial Officer of the Borrower and each other Loan Party to each
such effect.
6.1.2 Secretary's Certificate.
There shall be delivered to the Administrative Agent for the
benefit of each Lender a certificate dated the Second Restatement Effective Date
and signed by the Secretary or an Assistant Secretary of each of the Loan
Parties (including the Vulcan Joinder Company as a Loan Party), certifying as
appropriate as to:
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(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 Second Restatement Effective Date 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 Loan Documents.
This Agreement, the Guarantor Joinders, and the other Loan
Documents shall have been duly executed and delivered to the Administrative
Agent and shall continue the Obligations and the liens and security interests in
the Collateral for the benefit of the Lenders, together with all appropriate
financing statements and appropriate stock powers and certificates evidencing
the Subsidiary Shares, the Partnership Interests and the LLC Interests, and all
other instruments and Collateral required to be delivered to the Collateral
Agent for the benefit of the Lenders under the Collateral Documents.
6.1.4 Opinion of Counsel.
6.1.4.1 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 Second Restatement Effective Date and in form
and substance satisfactory to the Administrative Agent and its counsel:
(i) as to the matters set forth in Exhibit 6.1.4.1; and
(ii) as to such other matters incident to the
transactions contemplated herein as the Administrative Agent may reasonably
request.
6.1.4.2 There shall be delivered to the Administrative
Agent for the benefit of each Lender a written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
(who may rely on the opinions of such other counsel as may be acceptable to the
Administrative Agent), dated the Second Restatement Effective Date and in form
and substance satisfactory to the Administrative Agent and its counsel:
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(i) as to the matters dealing with the consummation of
the Vulcan Acquisition as set forth in Exhibit 6.1.4.2; and
(ii) as to such other matters incident to such
transactions as the Administrative Agent may reasonably request.
6.1.5 Legal Details.
All legal details and proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be in form and substance satisfactory to the 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
Administrative Agent for itself and for the account of the Lenders to the extent
not previously paid all fees and expenses in connection with the amendment and
restatement of the Original Credit Agreement and all fees and expenses accrued
through the Second Restatement Effective Date for which the Administrative Agent
and the Lenders are entitled to be reimbursed.
6.1.7 Consents.
All material consents and approvals required to effectuate the
transactions contemplated by the Loan Documents, by the Acquisition Documents,
by the Vulcan Acquisition Documents and by the North ▇▇▇▇▇▇▇▇ Contribution shall
have been obtained.
6.1.8 Officer's Certificate Regarding No Material Adverse
Change and Solvency.
There shall have been delivered to the Administrative Agent
for the benefit of each Lender a certificate dated the Second Restatement
Effective Date, in form and substance satisfactory to the Agents and signed by
the Chief Executive Officer, President or Chief Financial Officer of the
Borrower and each other Loan Party (including the Vulcan Joinder Company as a
Loan Party) certifying the following: (i) since December 31, 2002 and after
giving effect to the consummation of the Vulcan Acquisition, the North ▇▇▇▇▇▇▇▇
Contribution and the transactions contemplated hereby, no Material Adverse
Change shall have occurred; (ii) since December 31, 2002 and after giving effect
to the consummation of the Vulcan Acquisition, the North ▇▇▇▇▇▇▇▇ Contribution
and the transactions contemplated hereby, there shall have been no material
change in the management of the Borrower or any other Loan Party; and (iii)
after giving effect to the consummation of the Vulcan Acquisition and the North
▇▇▇▇▇▇▇▇ Contribution each of the Borrower and each other Loan Party is Solvent.
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6.1.9 No Violation of Laws.
The making of the Loans, the issuance of the Letters of
Credit, the consummation of the transactions contemplated hereby, the
consummation of the transactions contemplated by the Vulcan Acquisition
Documents and the consummation of the transactions contemplated by the North
▇▇▇▇▇▇▇▇ Contribution shall not contravene any Law applicable to any Loan Party
(including each Vulcan Joinder Company as a Loan Party), any Subsidiary of 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
Vulcan Acquisition Documents, the North ▇▇▇▇▇▇▇▇ Contribution or the
consummation of the transactions contemplated hereby or thereby or which, in the
Agents' discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement or any of the other Loan Documents.
6.1.11 Insurance.
The Borrower shall have delivered to the Agents evidence of
the insurance required under the Loan Documents and evidence acceptable to the
Agents that adequate insurance in compliance with Section 7.1.3 [Maintenance of
Insurance] is in full force and effect for the Vulcan Joinder Company and that
all premiums then due thereon have been paid.
6.1.12 Joinder by Vulcan Joinder Company to Loan Documents.
Each Vulcan Joinder Company existing at the Second Restatement
Effective Date shall have duly executed and delivered a Guarantor Joinder, shall
have caused all of their respective issued and outstanding equity interests to
be pledged pursuant to a Pledge Agreement, shall have executed a joinder to the
Subordination Agreement, and shall have otherwise complied with all of the
requirements of Section 10.18 [Requirements for Significant Subsidiaries].
6.1.13 Satisfactory Environmental Review.
The environmental condition of the Loan Parties', their
Subsidiaries' and the Vulcan Joinder Company's assets shall be satisfactory to
the Administrative Agent in all material respects.
6.1.14 UCC, Lien and Judgment Searches.
The Administrative Agent shall have received searches under
the Uniform Commercial Code, lien, tax lien, litigation and judgment searches
against each Vulcan Seller Party, in each case in the jurisdiction of each such
Person's formation and in each jurisdiction
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where each such person conducts business or owns or operates assets and the
results of such searches shall be satisfactory in form, scope and substance to
the Agents.
Any liens, UCC financing statements or judgments against any
of the assets or equity interests to be acquired by the Loan Parties upon
consummation of the transactions contemplated by the Vulcan Acquisition
Documents shall on or before the Second Restatement Effective Date be terminated
and released of record and satisfied in full, all to the satisfaction of the
Agents in their sole discretion and any Indebtedness or other obligations
secured by any such liens or judgments shall have been paid in full and all
commitments to make such loans shall have been terminated on or before the
Second Restatement Effective Date, all to the satisfaction of the Agents in
their sole discretion.
6.1.15 Filing Receipts.
The Agents shall have received (1) copies of all filing
receipts and acknowledgments issued by any governmental authority to evidence
any recordation or filing necessary to perfect or continue perfection of the
Lien of the Lenders on the Collateral or other satisfactory evidence of such
recordation and filing and (2) evidence in a form acceptable to the Agents that
such Lien constitutes a Prior Security Interest in favor of the Lenders.
6.1.16 Consummation of Acquisitions; Repayment of Certain
Indebtedness
On the Second Restatement Effective Date: (i) the Vulcan
Acquisition and transactions contemplated by the Vulcan Acquisition Documents
shall have been consummated on or before May 17, 2004 in accordance with the
terms of the Vulcan Acquisition Documents, (ii) no set of circumstances or
events shall have occurred which has or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforceability of any of
the Vulcan Acquisition Documents with respect to any Vulcan Seller Party or any
Vulcan Joinder Company, (iii) the Loan Parties shall have delivered to the
Administrative Agent a certificate of the Secretary of State of the State of
Delaware evidencing the filing of the certificate of merger to consummate the
Vulcan Acquisition, and (iv) none of the Loan Parties shall have waived any
material covenant or condition or compliance by any Vulcan Seller Party or any
Vulcan Joinder Company with any material provision of the Vulcan Acquisition
Documents without the prior written approval of the Required Banks, and an
Authorized Officer of the Borrower shall have certified each of the foregoing
matters to the Agents for the benefit of the Agents and the Lenders. Such
certificate shall be in form and substance satisfactory to the Agents.
On or before the Second Restatement Effective Date the
following shall occur to the satisfaction of the Administrative Agent in its
sole discretion: (i) the UBS Debt shall be repaid in full, (ii)all liens and
security interests securing the UBS Debt shall have been terminated, (iii) all
commitments to lend under the documents and agreements evidencing the UBS Debt
shall have been terminated and of no further force and effect, (iv) all
indebtedness or other obligations payable by any Vulcan Joinder Company to any
other Vulcan Joinder Company or to any Affiliate of any Vulcan Seller Party
shall have been repaid or discharged in full.
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6.1.17 Triton EBITDDA.
The Borrower shall have delivered to the Administrative Agent
and each Bank a certificate of the Borrower dated as of the Second Restatement
Effective Date and signed by its Chief Executive Officer, President or Chief
Financial Officer, in form, substance and detail together with supporting
financial statements and other accounting and financial information satisfactory
to the Administrative Agent, which certifies as to and sets forth a detailed
calculation of the Triton EBITDDA for the Triton EBITDDA Period (as hereinafter
defined). Triton EBITDDA Period shall mean the period, consisting of twelve
consecutive months ending prior to the consummation of the Vulcan Acquisition,
as such period is reasonably acceptable to the Administrative Agent.
6.1.18 Confirmation of Loan Documents.
Each Loan Party, shall have executed and delivered a
confirmation of Loan Documents in form and substance satisfactory to the Agents.
6.1.19 Amended and Restated Schedules.
The Borrower shall have delivered to the Agents and each Bank
amended and restated schedules and the new additional schedules to this
Agreement, with each schedule to be in form and substance satisfactory to the
Required Banks.
6.1.20 Certain Amended and Restated Exhibits.
Upon the effectiveness of this Agreement, Exhibit 7.3.3
[Quarterly Compliance Certificate] shall be amended and restated in its entirety
in the form of the exhibit attached hereto, bearing such name and numerical
reference, and Exhibit 6.1.4.1 [Matters to be covered in Opinions of Counsel for
Arch Coal, Inc.] and Exhibit 6.1.4.2 [Matters to be covered in Opinions of
▇▇▇▇▇▇ & Whitney LLP with respect to the Vulcan Acquisition] shall be added as
new exhibits to this Agreement in the form of the exhibits attached hereto
bearing such respective names and numerical references. All other exhibits to
this Agreement shall continue to be effective and in such form as effective
prior to the Second Restatement Effective Date.
6.1.21 Certain Required Lender Matters.
It is expressly agreed that any amendment to Section 6.1 or
waiver of any condition under this Section 6.1 shall require the prior written
approval of the Required Banks and of the Borrower.
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
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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, and PNC Bank in the case of a request for a Swing Loan) a duly
executed and completed Committed Loan Request or application for a Letter of
Credit as the case may be.
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 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,
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assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings and with respect to which there are proper reserves as
required by GAAP, but only to the extent that failure to discharge any such
liabilities would not adversely affect the value of the Collateral or the
Additional Collateral.
7.1.3 Maintenance of Insurance.
Each Loan Party 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. At the request of the Administrative
Agent, the Loan Parties shall deliver to the Administrative Agent and each of
the Lenders (x) on each anniversary of the Restatement Effective Date and such
other date as the Administrative Agent shall reasonably request an original
certificate of insurance signed by the Loan Parties' independent insurance
broker describing and certifying as to the existence of the insurance required
to be maintained by this Agreement and the other Loan Documents and (y) from
time to time a summary schedule indicating all insurance then in force with
respect to each of the Loan Parties.
7.1.4 Maintenance of Properties and Leases.
The Borrower shall, and shall cause each of its Subsidiaries
to, maintain and preserve all of its respective material properties, necessary
or useful in the proper conduct of the business of the Borrower or such
Subsidiary of the Borrower, in good working order and condition, ordinary wear
and tear excepted. Without limiting the generality of the foregoing, the
Borrower shall, and shall cause each of its Subsidiaries to, maintain in full
force and effect all patents, trademarks, service marks, trade names,
copyrights, licenses and franchises necessary for the ownership and operation of
its properties and business if the failure so to maintain the same would
constitute a Material Adverse Change.
7.1.5 Visitation Rights.
The Borrower shall, and shall cause each of its Subsidiaries
to, permit any of the officers or authorized employees or representatives of the
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.
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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, maintain, comply with and renew all Environmental Permits necessary for
their respective operations and properties; and manage, use and handle all
Regulated Substances in compliance with all applicable Environmental Laws, in
each case, except for such non-compliance which would not or could not
reasonably be expected to result in a Material Adverse Change.
7.1.9 Use of Proceeds.
On and after the Restatement Effective Date, the Borrower will
use the Letters of Credit and the proceeds of the Loans only (i) to continue and
refinance indebtedness under the revolving credit facility of the Original
Credit Agreement, (ii) to repay the term loans under the Original Credit
Agreement, or (iii) for general corporate purposes and for working capital for
the Borrower and its Subsidiaries . 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.
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7.1.10 Operation of Mines.
The Borrower shall, and shall cause each of its Subsidiaries
to, operate their mines in all material respects in accordance with sound coal
mining practices.
7.1.11 Maintenance of Material Contracts.
The Borrower shall, and shall cause each of its Subsidiaries
to, comply with the provisions of and to maintain in full force and effect all
material licenses, material permits and Material Contracts (other than
Environmental Permits which are addressed in Section 7.1.8 above) to which any
such Person is a party, except where the failure to so maintain in full force
and effect a material license, material permit or a Material Contract could not
be reasonably expected to result in a Material Adverse Change.
7.1.12 Further Assurances.
Each Loan Party shall, from time to time, at its expense,
faithfully preserve and protect the Collateral Agent's Lien on and Prior
Security Interest in the Collateral as a continuing first priority perfected
Lien, subject only to Permitted Liens, and shall do such other acts and things
as the Administrative Agent or the Collateral Agent in their sole discretion may
deem necessary or advisable from time to time in order to preserve, perfect and
protect the Liens granted under the Loan Documents and to exercise and enforce
its rights and remedies thereunder with respect to the Collateral and the
Additional Collateral (subsequent to the Additional Collateral Trigger Date).
7.1.13 Subordination of Intercompany Loans.
Each Loan Party shall cause any intercompany Indebtedness,
loans or advances owed by any Loan Party to any other Loan Party or by any
Subsidiary (which is a member of the Arch Coal Group) of any Loan Party to any
Loan Party to be subordinated pursuant to the terms of the Subordination
Agreement.
7.1.14 Additional Collateral.
In the event that the Debt Rating falls to or below BB- by
Standard and Poor's or Ba3 by ▇▇▇▇▇'▇ (the date of such event shall be referred
to as the "Additional Collateral Trigger Date"), the Loan Parties shall use
diligent efforts to execute and deliver on the Additional Collateral Delivery
Date (or such later date agreed to in writing by the Administrative Agent), to
the Administrative Agent for the benefit of the Lenders, Additional Collateral
Documents in form and substance satisfactory to the Administrative Agent,
including without limitation Security Agreements, Patent, Trademark and
Copyright Security Agreements and Mortgages necessary to grant first priority
perfected liens and security interests (subject only to Permitted Liens in favor
of the Lenders in the following assets of the Loan Parties (subject to the
discretion of the Administrative Agent to exclude any of the following assets
from the Additional Collateral in the event that the taking of Liens upon such
assets is impractical, prohibited by law or commercially unreasonable in the
Administrative Agent's judgment): accounts, inventory, furniture, fixtures,
improvements, as-extracted collateral, general intangibles, coal supply
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agreements, other material contracts, coal reserves, mineral rights, the NRP
Interests, any material Property of any Loan Party and any other assets of any
Loan Party as the Administrative Agent in its sole discretion may request. At
the time of execution and delivery of the Additional Collateral Documents
described in the first sentence of this Section 7.1.14, the Loan Parties shall
also deliver to the Administrative Agent for the benefit of the Lenders, all in
form and substance satisfactory to the Administrative Agent: (i) opinions of
legal counsel to the Loan Parties, including opinions of local counsel in each
applicable jurisdiction, as such opinions may be reasonably required by the
Administrative Agent and with such opinions to be satisfactory in form, scope
and substance to the Administrative Agent in its reasonable discretion, (ii)
Additional Indemnity Agreements, (iii) Landlord Waivers, (iv) an amendment to
the Collateral Sharing Agreement, together with the requisite consent of each of
the Secured Parties (as defined in the Collateral Sharing Agreement), as
necessary or required with respect to the Additional Collateral required by this
Section 7.1.14, and (v) title commitments or title reports with respect to any
Property which is subject to any Mortgage evidencing that such Property is free
and clear of any and all defects and encumbrances whatsoever and is subject only
to such exceptions as may be approved in writing by the Administrative Agent. At
any time subsequent to the Additional Collateral Trigger Date that Borrower
acquires Property, Borrower shall comply with all the requirements of Section
5.1.23.2 and this Section 7.1.14 as if such Property had been acquired prior to
the Additional Collateral Trigger Date.
7.1.15 Tax Shelter Regulations.
None of the Loan Parties intends to treat the Loans and/or
Letters of Credit and related transactions as being a "reportable transaction"
(within the meaning of Income Tax Regulation Section 1.6011-4). In the event any
of the Loan Parties determines to take any action inconsistent with such
intention, the Borrower will promptly (1) notify the Administrative Agent
thereof, and (2) deliver to the Administrative Agent a duly completed copy of
IRS Form 8886 or any successor form. If the Borrower so notifies the
Administrative Agent, the Borrower acknowledges that one or more of the Lenders
may treat its Loan and/or Letters of Credit as part of a transaction that is
subject to Income Tax Regulation Section 301.6112-1, and such Lender or Lenders,
as applicable, will maintain the lists and other records required by such Income
Tax Regulation.
7.1.16 Anti-Terrorism Laws.
The Loan Parties and their respective Affiliates and agents
shall not (i) conduct any business or engage in any transaction or dealing with
any Blocked Person, including the making or receiving any contribution of funds,
goods or services to or for the benefit of any Blocked Person, (ii) deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order No. 13224; or (iii) engage in
or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in the Executive Order No. 13224 or the USA Patriot Act. The Borrower
shall deliver to Lenders any certification or other evidence reasonably
requested from time to time by any Lender, confirming Borrower's compliance with
this Section 7.1.16.
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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, unsecured Indebtedness of the Borrower
incurred after the Restatement Effective Date, in an aggregate amount not to
exceed $250,000,000 outstanding at any time, 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
with respect to the AWR Senior Notes and any refinancing thereof with Permitted
Additional AWR Indebtedness;
(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, so long as such Indebtedness is subordinated to
the obligations of the Loan Parties under the Loan Documents pursuant to the
Subordination Agreement;
(vi) Indebtedness of the Borrower payable to Arch
Western so long as such Indebtedness is evidenced by the Eligible Note
Receivable;
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(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;
(viii) Indebtedness of the Securitization Subsidiary in
a Permitted Receivables Financing;
(ix) Indebtedness not to exceed $25,000,000 outstanding
at any time in the aggregate for Arch Western and its Subsidiaries that is
secured by no more than the amount permitted by the Liens described in item (2)
of clause (viii) of the definition of Permitted Liens;
(x) Indebtedness of any Subsidiary of Arch Western
payable to Arch Western or any other Subsidiary of Arch Western; provided that
if Arch Western or any Subsidiary of Arch Western is the obligor on such
Indebtedness and such Indebtedness becomes subordinated in right of payment to
the AWR Senior Notes, Arch Western or such Subsidiary of Arch Western shall
enter into an intercompany subordination agreement on terms and conditions
similar to that executed under the AWR Senior Notes Indenture and satisfactory
to the Administrative Agent; and
(xi) Indebtedness not to exceed $100,000,000 outstanding
at any time in the aggregate for Arch Western and its Subsidiaries.
7.2.2 Liens.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, (i) at any time create, incur, assume or suffer to exist any
Lien on any of its respective property or assets, tangible or intangible, now
owned or hereafter acquired, or agree or become liable to do so, except, in the
case of the Borrower, the Arch Coal Group, Arch Western or any Subsidiary of
Arch Western, Permitted Liens and (ii) at any time, directly or indirectly,
enter into any agreement (other than the Arch Western Term Facility, and the AWR
Senior Notes Indenture), understanding or other arrangement which purports to
prohibit or limit in any manner the ability of the Borrower or any Subsidiary of
the Borrower to grant security interests or Liens with respect to any of its
respective property or assets.
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party
to any merger or consolidation, or acquire by purchase, lease or otherwise all
or substantially all of the assets or capital stock of any other Person,
provided that:
(1) any member of the Arch Coal Group, other than the
Borrower, may consolidate or merge into the Borrower or any other member of the
Arch Coal Group,
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(2) any Subsidiary of Arch Western may consolidate or merge
into Arch Western or any other Subsidiary of Arch Western,
(3) Arch Western or any Subsidiary of Arch Western may acquire
or purchase additional ownership interests in Canyon Fuel provided that each of
the following requirements is met:
(i) the board of directors or other equivalent governing
body of the seller of such ownership interests shall have approved such sale of
such ownership interests;
(ii) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Permitted
Acquisition; and
(iii) 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);
(4) any Loan Party may acquire, whether by purchase or by
merger, (A) all of the ownership interests of another Person or (B)
substantially all of the assets of another Person or of a business or division
of another Person (each 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], in the case of any merger a Loan Party shall be the surviving entity
after giving effect to such transaction, all of the equity interests of the
business or Person acquired shall be pledged to the Administrative Agent for the
benefit of the Lenders on a first priority perfected basis pursuant to the
Pledge Agreements and such other Collateral Documents and Additional Collateral
Documents (subsequent to the Additional Collateral Trigger Date) as are
necessary to create a Prior Security Interest in such assets, to the extent that
a Significant Subsidiary is acquired or formed in connection with or as a result
of such acquisition, the Loan Parties shall comply with the provisions of
Section 7.2.6 [Subsidiaries, Partnerships and Joint Ventures] and Section 10.18
[Requirements for Significant Subsidiaries], and in connection with such
acquisition and the granting of such Liens and security interests, the Borrower
shall deliver to the Administrative Agent for the benefit of the Lenders such
opinions of counsel, certificates and such other Loan Documents as the
Administrative Agent may reasonably request;
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(iii) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Permitted
Acquisition;
(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); and
(v) after giving effect to such Permitted Acquisition,
the Revolving Credit Commitments shall exceed the Revolving Facility Usage by at
least $75,000,000.
7.2.4 Dispositions of Assets or Subsidiaries.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, sell, convey, assign, lease, abandon, securitize or enter into
a securitization transaction, or otherwise transfer or dispose of, voluntarily
or involuntarily, any of its properties or assets, tangible or intangible
(including sale, assignment, discount or other disposition of accounts, contract
rights, chattel paper, equipment, general intangibles with or without recourse
or of capital stock, shares of beneficial interest, partnership interests or
limited liability company interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory in the
ordinary course of business;
(ii) subject to the first proviso of clause (v) below,
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) subject to the first proviso of clause (v) below,
any sale of assets if and to the extent the Net Cash Proceeds thereof are
applied within 180 days of the consummation of such sale to the purchase by the
Borrower or a Subsidiary of substitute assets; provided that the Borrower shall
have 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 180 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 180-day period, such sale shall be
deemed to have been made on the last day of such period pursuant to clause (vi)
below;
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(iv) any sale of accounts receivable or contracts giving
rise to accounts receivable in a Permitted Receivables Financing, provided that
at the time of any such sale, no Event of Default shall exist or shall result
from such sale after giving effect thereto;
(v) any sale, transfer or lease (including any lease
transaction under Section 7.2.9 [Off-Balance Sheet Financing and Capital
Leases]) of assets, other than those specifically excepted pursuant to clauses
(i) through (iv) above or clauses (vi), (vii), (viii), (ix) or (x) below,
provided that any disposition of assets by Borrower after the consummation of
the MLP Transaction to the master limited partnership or similar entity formed
in connection with the MLP Transaction shall be subject to and governed by
solely this clause (v), provided further that with respect to any sale, transfer
or lease pursuant to this Section 7.2.4(v): (a) at the time of any such
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, as determined in accordance with
GAAP, of all assets so sold, transferred, or leased by the Borrower and its
Subsidiaries shall not exceed in any calendar year $40,000,000;
(vi) subject to the first proviso of clause (v) above,
any sale, transfer or lease of assets, other than those specifically excepted
pursuant to clauses (i) through (v) above or clauses (vii), (viii), (ix) or (x),
below, so long as (y) in the case of any such permitted transaction by any
member of the Arch Coal Group, a permanent reduction of the Revolving Credit
Commitments with respect to the Net Cash Proceeds thereof is made in accordance
with the provisions of Section 4.4.5, and (z) in the case of any such permitted
transaction by any member of the Arch Western Group, the Net Cash Proceeds
thereof are used to make the mandatory payments and/or redemptions of the
Indebtedness of Arch Western or the applicable Subsidiary of Arch Western as
required in accordance with Section 4.09 of the AWR Senior Notes Indenture or to
make the mandatory redemptions of other Permitted Additional AWR Indebtedness as
required in accordance with the indenture or agreement to which such Permitted
Additional AWR Indebtedness is subject;
(vii) any transfer of assets by the Borrower to Arch
Western as contemplated by the Contribution Agreement and, subject to Section
7.2.14(v), the North ▇▇▇▇▇▇▇▇ Contribution;
(viii) the disposition of the Buckskin Operations so
long as (a) at the time of such disposition, no Event of Default shall exist or
shall result from such disposition after giving effect thereto and (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 the disposition of the Buckskin Operations;
(ix) any disposition of assets by any member of the Arch
Coal Group to consummate the MLP Transaction, provided that (a) at the time of
any disposition, no Event of Default shall exist or shall result from such
disposition after giving effect thereto,
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and (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 the MLP Transaction; or
(x) any disposition of partnership or other interests in
a master limited partnership or similar entity or in any general partner of such
master limited partnership (including, without limitation, the NRP Subordinated
Units), in any such case, received as part of the MLP Transaction permitted by
Section 7.2.4 [Dispositions of Assets or Subsidiaries] hereof provided that at
the time of any such disposition, no Event of Default shall exist or shall
result from such disposition after giving effect thereto.
7.2.5 Affiliate Transactions.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into or carry out any transaction (including purchasing
property or services from or selling property or services to) with any Affiliate
of the Borrower unless such transaction is not otherwise prohibited by this
Agreement and is entered into in the ordinary course of business upon fair and
reasonable arm's length terms and conditions; provided, however, that: (i) the
MLP Transaction and any other transaction permitted hereby involving the
transfer of assets to the master limited partnership or similar entity
established in connection with the MLP Transaction shall be deemed to be a
transaction that is entered into in the ordinary course of business of the
Borrower, (ii) this Section 7.2.5 shall not prohibit any loan by Arch Western or
any Subsidiary of Arch Western to the Borrower or any other member of the Arch
Coal Group which is not otherwise prohibited by this Agreement, (iii) this
Section 7.2.5 shall not prohibit any dividend or distribution by Arch Western or
any Subsidiary of Arch Western to the Borrower or any other member of the Arch
Coal Group which is not otherwise prohibited by this Agreement, and (iv) this
Section 7.2.5 shall not prohibit any transaction described on Schedule 7.2.5
(including any modification, extension or renewal thereof on terms no less
favorable to the parties thereto than the terms of such transaction as described
on such Schedule) which is not otherwise prohibited by this Agreement.
7.2.6 Subsidiaries, Partnerships and Joint Ventures.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, own or create directly or indirectly any Subsidiaries other
than (i) Subsidiaries which are not Significant Subsidiaries, and (ii) any
Significant Subsidiary which has complied with Section 10.18. Neither the
Borrower nor any Subsidiary of the Borrower shall become or agree to become a
general or limited partner in any general or limited partnership or become a
member or manager of, or hold a limited liability company interest in, a limited
liability company, except that (1) the Loan Parties may make an Investment in a
Permitted Joint Venture; provided, however, that the aggregate permitted
Investments in all Permitted Joint Ventures shall not at any time exceed, for
all Loan Parties and their Subsidiaries, $50,000,000, (2) the Loan Parties may
hold limited partnership interests or limited liability company member interests
in any general partner of the master limited partnership formed as part of the
MLP Transaction, or (3) the Loan Parties may be general or limited partners in
other Loan Parties or be members or managers of, or
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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 Restatement
Effective Date and any business substantially related thereto, and neither the
Borrower nor any Subsidiary of the Borrower shall permit any material change in
such business.
7.2.8 Plans and Benefit Arrangements.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in a Prohibited Transaction with any Plan, Benefit
Arrangement or Multiemployer Plan which, alone or in conjunction with any other
circumstances or set of circumstances results in liability under ERISA which
could reasonably be expected to result in a Material Adverse Change.
7.2.9 Off-Balance Sheet Financing and Capital Leases.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into any lease which would constitute a capital lease in
accordance with GAAP or engage in any off-balance sheet transaction (i.e., the
liabilities in respect of which do not appear on the liability side of the
balance sheet) providing the functional equivalent of borrowed money (including
sale/leasebacks or Synthetic Leases) (collectively, "Off-Balance Sheet and
Capital Lease Transactions"), except Indebtedness or other obligations in
respect of Off-Balance Sheet and Capital Lease Transactions, so long as the
aggregate amount of Indebtedness or other obligations in respect of Off-Balance
Sheet and Capital Lease Transactions does not at any time exceed (a)
$100,000,000 plus (b) the actual amount of the Indebtedness and other
obligations in respect of Off-Balance Sheet and Capital Lease Transactions
assumed in connection with the Vulcan Acquisition, provided however, that in no
event shall the amount of Indebtedness and other obligations in respect of
Off-Balance Sheet and Capital Lease Transactions permitted by this clause (b)
exceed $40,000,000. For purposes of this Section 7.2.9, (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:
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Period Ratio
----------------------------------------------------------------------------------------
Restatement Effective Date through and including June 30, 2003 3.50 to 1.00
July 1, 2003 through and including December 31, 2003 4.00 to 1.00
January 1, 2004 through and including March 31, 2004 3.75 to 1.00
April 1, 2004 through and including September 30, 2004 3.50 to 1.00
Thereafter 3.25 to 1.00
Notwithstanding the above, the Borrower shall not at any time on or after the
consummation of the sale of: (i) the Buckskin Operations and (ii) 50% or more of
the NRP Subordinated Units permit the Leverage Ratio to exceed the ratio set
forth below for the periods specified below:
Period Ratio
----------------------------------------------------------------------------------------
Restatement Effective Date through and including June 30, 2003 3.50 to 1.00
July 1, 2003 through and including December 31, 2003 3.75 to 1.00
January 1, 2004 through and including March 31, 2004 3.50 to 1.00
April 1, 2004 through and including September 30, 2004 3.25 to 1.00
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:
Period Ratio
----------------------------------------------------------------------------------------
Restatement Effective Date through and including December 31, 2003 2.75 to 1.00
January 1, 2004 through and including December 31, 2004 3.25 to 1.00
Thereafter 3.50 to 1.00
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7.2.12 Minimum Net Worth.
The Borrower shall not at any time permit Consolidated
Tangible Net Worth (determined without regard to the valuation of derivatives as
required by GAAP and as the effect thereof is reported in the "Other
Comprehensive Income" category on the Borrower's consolidated balance sheet for
each period from and after April 1, 2002) to be less than the Base Net Worth.
7.2.13 No Restriction on Dividends or Certain Loans.
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: (i) prior to the date of issuance of the AWR
Senior Notes, restrictions applicable to the Arch Western Group set forth in the
Arch Western Credit Facility (1998), (ii) restrictions applicable to Arch
Western set forth in the Arch Western LLC Agreement, (iii) restrictions that are
applicable to Canyon Fuel set forth in the Canyon Fuel LLC Agreement and (iv)
restrictions that are applicable to the Arch Western Group and that are
permitted by clause (x) of the definition of Permitted Additional AWR
Indebtedness. 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 making of any loan to the Borrower by any member of
the Arch Western Group, other than (i) restrictions applicable to Arch Western
set forth in the Arch Western LLC Agreement, (ii) restrictions applicable to
Canyon Fuel set forth in the Canyon Fuel LLC Agreement, and (iii) restrictions
that are applicable to the Arch Western Group and that are permitted by clause
(ix) of the definition of Permitted Additional AWR Indebtedness.
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) in the case of any investments, other than the North
▇▇▇▇▇▇▇▇ Contribution, the Leverage Ratio would be greater than 3.00 to 1.00;
provided further that, in the case of the North ▇▇▇▇▇▇▇▇ Contribution, all of
the following additional conditions must also be satisfied:
(w) the liabilities and obligations described on
Schedule 1.1 (N) as the "North ▇▇▇▇▇▇▇▇ Assumed
Liabilities" shall have been unconditionally and
irrevocably assumed by one or more members of the
Arch Western Group other than AWAC and no member
of the Arch Coal Group shall have any liability or
obligation therefore from and after the date of
the North ▇▇▇▇▇▇▇▇ Contribution;
(x) the North ▇▇▇▇▇▇▇▇ Contribution Documents shall be
satisfactory to the Administrative Agent in its
reasonable discretion;
(y) the Administrative Agent shall have received an
opinion from an Independent Financial Advisor, in
form and substance reasonably satisfactory to the
Administrative Agent, to the effect that the terms
(including the consideration received by the
members of the Arch Coal Group) of any lease
and/or sublease, with respect to the North
▇▇▇▇▇▇▇▇ Mineral Rights, between the applicable
member of the Arch Coal Group, as lessor and Arch
Western and/or a Subsidiary of Arch Western, as
lessee, are fair, from a financial point of view,
to the members of the Arch Coal Group and such
lease and/or sublease shall otherwise be in form
and substance reasonably satisfactory to the
Administrative Agent; and
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(z) after giving effect to the North ▇▇▇▇▇▇▇▇
Contribution, no Potential Default or Event of
Default shall exist or be continuing;
(vi) loans and advances permitted by Section 7.2.1(v);
(vii) other Investments, in connection with or related
to the operations of the Borrower and its Subsidiaries, not exceeding
$50,000,000 in the aggregate at any time;
(viii) Investments constituting capitalization of any
Securitization Subsidiary consistent with normal practice for transactions of
such type;
(ix) limited partnership or other interests in a master
limited partnership or similar entity received as part of the MLP Transaction
permitted by Section 7.2.4 [Dispositions of Assets or Subsidiaries] hereof and
limited partnership interests or limited liability company member interests in
any general partner of the master limited partnership received as part of the
MLP Transaction;
(x) dividends and distributions by Arch Western to the
Borrower;
(xi) loans by Arch Western to the Borrower so long as
each loan is evidenced by the Eligible Note Receivable;
(xii) distributions to the ARCO Member (as defined in
the Arch Western LLC Agreement) in an amount equal to the Hypothetical Income
Tax Amount (as defined in the Arch Western LLC Agreement) pursuant to Section
4.3 of the Arch Western LLC Agreement; and
(xiii) investments by Arch Western in its Subsidiaries
which are members of the Arch Western Group.
7.2.15 Amendments to Acquisition Documents or Vulcan
Acquisition Documents.
7.2.15.1 The Borrower shall not, and shall not permit any
of its Subsidiaries to, enter into any amendment or modification to or waiver or
consent under (or solicit any such amendment, modification, waiver or consent)
any of the Acquisition Documents or the Coastal Agreement which could reasonably
be expected to be material and adverse to the Banks without the prior written
consent of the Administrative Agent.
7.2.15.2 The Borrower shall not, and shall not permit any
of its Subsidiaries to, enter into any amendment or modification to or waiver or
consent under (or solicit any such amendment, modification, waiver or consent)
any of the Vulcan Acquisition
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Documents which could reasonably be expected to be material and adverse to the
Banks without the prior written consent of the Administrative Agent.
7.2.16 Transactions With Respect to AWAC.
The Borrower shall not permit AWAC to: (i) incur any
indebtedness or other obligation or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several); and (ii) own any asset other than its member interest in Arch
Western.
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 (or such earlier date, from time to time established by the SEC in
accordance with the Securities Exchange Act of 1934, as amended), financial
statements of the Borrower and its Subsidiaries, consisting of a consolidated
and consolidating balance sheet as of the end of such fiscal quarter, related
consolidated and consolidating statements of income and 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 (or such earlier date, from time to time
established by the SEC in accordance with the Securities Exchange Act of 1934,
as amended), the Borrower delivers to the Administrative Agent 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.
7.3.2 Annual Financial Statements.
As soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower (or such earlier date, from
time to time established by the SEC in accordance with the Securities Exchange
Act of 1934, as amended), financial statements of the Borrower and its
Subsidiaries consisting of a consolidated and consolidating balance sheet as of
the end of such fiscal year, related consolidated and consolidating statements
of income and stockholders' equity and related consolidated statement of cash
flows for the fiscal year then
- 93 -
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 (or such earlier date, from time to
time established by the SEC in accordance with the Securities Exchange Act of
1934, as amended), the Borrower delivers to the 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.
As soon as available and in any event within forty-five (45)
calendar days after the end of each of the first three fiscal quarters in each
fiscal year and within ninety (90) days after the end of each fiscal year of the
Borrower, a certificate of the Borrower signed by the Chief Executive Officer,
President 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, (iii) containing a list of each Significant
Subsidiary, each Inactive Subsidiary, each Subsidiary of Arch Western, and each
Special Subsidiary, other than those set forth on Schedule 5.1.2, and (iv)
containing calculations in sufficient detail to demonstrate compliance as of the
date of such financial statements with all financial covenants contained in
Section 7.2 [Negative Covenants].
7.3.4 Notice of Default.
Promptly after any officer of the Borrower has learned of the
occurrence of an Event of Default or Potential Default, a certificate signed by
the Chief Executive Officer, President or Chief Financial Officer of the
Borrower setting forth the details of such Event of Default or Potential Default
and the action which the Borrower proposes to take with respect thereto.
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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,
(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 4063 or 4064,
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(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 or distressed termination with the PBGC, or any successor or equivalent
form, filed with the PBGC in connection with the termination of any Plan.
7.3.8 Other Information; Notice of Default Under the AWR
Senior Notes.
Promptly after any officer of the Borrower or any Subsidiary
of the Borrower has learned of the occurrence of a default or event which with
the passage of time or the giving of notice or both would constitute a default
under the AWR Senior Notes or under any agreement or indenture governing
Permitted Additional AWR Indebtedness, the Borrower shall deliver notice thereof
to the Agents together with a certificate signed by the Chief Executive Officer,
President or Chief Financial Officer of the Borrower setting forth the details
of such
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default or other such event and the action which the Borrower proposes to take
with respect thereto.
Promptly following request therefore, such other information
as any Agent or Lender may reasonably request, including, without limitation,
forecasts and projections.
7.3.9 Tax Shelter Provisions.
Promptly after any of the Loan Parties determines that it
intends to treat any of the Loans, Letters of Credit, other Obligations or
related transactions as being a "reportable transaction" as provided in Section
7.1.15 [Tax Shelter Regulations]
(1) a written notice of such intention to the
Administrative Agent; and
(2) a duly completed copy of IRS Form 8886 or any
successor form.
8. DEFAULT
8.1 Events of Default.
An Event of Default shall mean the occurrence or existence of any
one or more of the following events or conditions (whatever the reason therefor
and whether voluntary, involuntary or effected by operation of Law):
8.1.1 Payments Under Loan Documents.
The Borrower shall fail to pay (i) any principal of any 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.
Any 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];
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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 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) 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 default or event of default consists of
the failure to pay (beyond any period of grace permitted with respect thereto,
whether waived or not) any indebtedness when due (whether at stated maturity, by
acceleration or otherwise) or if such default or event of default permits or
causes (or with the giving of notice or the passage of time or both would permit
or cause) the acceleration of any indebtedness (whether or not such right shall
have been waived) or the termination of any commitment to lend;
(b) A default or event of default shall occur at any time
under the terms of any of the Lease Documents or under or with respect to any
other Obligations (as such term is defined in the Collateral Sharing Agreement)
and such default or event of default consists of the failure to pay (beyond any
period of grace permitted with respect thereto, whether waived or not) any
indebtedness or other obligation thereunder when due (whether at stated
maturity, by acceleration or otherwise) or if such default or event of default
permits or causes (or with the giving of notice or the passage of time or both
would permit or cause) the acceleration of any indebtedness or other obligation
thereunder (whether or not such right shall have been waived) or the termination
of any of the Lease Documents or the termination of any other agreement or
instrument evidencing any other Obligations (as such term is defined in the
Collateral Sharing Agreement);
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
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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;
8.1.8 Proceedings Against Assets.
Any of the Loan Parties' or any of their Subsidiaries' assets
are attached, seized, levied upon or subjected to a writ or distress warrant; or
such come within the possession 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, or the Borrower and its Subsidiaries, taken as a whole, fail to pay
their debts generally as they become due or admit their inability to pay their
debts generally as they become due;
8.1.11 Events Relating to Plans and Benefit Arrangements.
Any of the following occurs: (i) any Reportable Event, which
the 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
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administer or liquidate any Plan; and, in the case of the occurrence of (i),
(ii), (iii) or (iv) above, the Administrative Agent determines in good faith
that the amount of the Borrower's liability is likely to exceed 10% of its
Consolidated Tangible Net Worth; (v) the Borrower or any member of the ERISA
Group shall fail to make any contributions when due to a Plan or a Multiemployer
Plan; (vi) the Borrower or any other member of the ERISA Group shall make any
amendment to a Plan with respect to which security is required under Section 307
of ERISA; (vii) the Borrower or any other member of the ERISA Group shall
withdraw completely or partially from a Multiemployer Plan; (viii) the Borrower
or any other member of the ERISA Group shall withdraw (or shall be deemed under
Section 4062(e) of ERISA to withdraw) from a Multiple Employer Plan; or (ix) any
applicable Law is adopted, changed or interpreted by any Official Body with
respect to or otherwise affecting one or more Plans, Multiemployer Plans or
Benefit Arrangements and, with respect to any of the events specified in (v),
(vi), (vii), (viii) or (ix), the Administrative Agent determines in good faith
that any such occurrence would be reasonably likely to materially and adversely
affect the total enterprise represented by the Borrower and the other members of
the ERISA Group;
8.1.12 Cessation of Business.
The Loan Parties, taken as a whole, cease to conduct their
business as contemplated, except as expressly permitted under Section 7.2.3
[Liquidations, Mergers, etc.] or 7.2.4 [Dispositions of Assets and
Subsidiaries], or are enjoined, restrained or in any way prevented by court
order from conducting all or any material part of their business and such
injunction, restraint or other preventive order is not dismissed within thirty
(30) days after the entry thereof;
8.1.13 Change of Control.
Any person or group of persons (within the meaning of Sections
13(d) or 14(a) of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership of (within the meaning of Rule 13d-3 promulgated
by the SEC under said Act) 35% or more of the voting capital stock of the
Borrower; or (ii) within a period of twelve (12) consecutive calendar months,
individuals who (1) were directors of the Borrower on the first day of such
period, (2) were nominated for election by the Borrower, or (3) were appointed
by the Board 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
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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.
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 or Swing 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 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
or Swing Loans hereunder or to issue Letters of Credit and the unpaid principal
amount of the Loans then outstanding and all interest accrued
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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
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 the Required Banks (or at the request of the Agents or the
Required Banks, any Bank, and any such Bank that has received such a request
shall thus be entitled to exercise the rights set forth in this Section ) if
owed any amount with respect to the Loans, may, to the extent permitted by Law,
proceed to protect and enforce its rights by suit in equity, action at law
and/or other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Agreement or the other Loan Documents,
including as permitted by applicable Law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of any Agent or such Bank; and
8.2.5 Application of Proceeds.
From and after the date on which the Administrative Agent or
any Lender shall have taken any action pursuant to this Section 8.2 and until
all Obligations of the Loan Parties have been paid in full, subject to the
provisions of the Collateral Sharing Agreement, any
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and all proceeds received by the Administrative Agent or any Lender from the
exercise of any remedy by the Administrative Agent or any Lender 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.
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.
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 JPMorgan Chase 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 JPMorgan Chase 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
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a relinquishment of their respective duties as Agents or the Administrative
Agent, as the case may be) and, subject to Sections 9.5 [Reimbursement and
Indemnification of Agents by the Borrower] and 9.6 [Exculpatory Provisions;
Limitation of Liability], shall be entitled to engage and pay for the advice or
services of any attorneys, accountants or other experts concerning all matters
pertaining to its duties hereunder and to rely upon any advice so obtained. It
is acknowledged and agreed that each of Citibank, Credit Lyonnais, and U.S. Bank
has received the title of Documentation Agent under this Agreement, however,
such designation is solely to give each of Citibank, Credit Lyonnais, and U.S.
Bank such title and each of Citibank, Credit Lyonnais, and U.S. Bank has no
duties, responsibilities, functions, obligations or liabilities implied or
otherwise under the Loan Documents solely as a result of being so designated as
Documentation Agent.
9.3 Nature of Duties; Independent Credit Investigation.
Neither the Agents nor the Administrative Agent shall have any
duties or responsibilities except those expressly set forth in this Agreement
and no implied covenants, functions, responsibilities, duties, obligations, or
liabilities shall be read into this Agreement or otherwise exist. The duties of
the Administrative Agent and of the Agents shall be mechanical and
administrative in nature; neither the Administrative Agent nor the Agents shall
have by reason of this Agreement a fiduciary or trust relationship in respect of
any 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
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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 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, (iv) in any workout or restructuring or in connection with the
protection, preservation, exercise or enforcement of any of the terms hereof or
of any rights hereunder or under any other Loan Document or in connection with
any foreclosure, collection or bankruptcy proceedings, and (v) in connection
with any Environmental Claim and/or Environmental Complaint threatened or
asserted against the Administrative Agent or any Agent or the Lenders in any way
relating to or arising out of this Agreement or any other Loan Documents
(including, without limitation, the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights or remedies hereunder or
under any other Loan Document or in connection with any foreclosure, collection
or bankruptcy or receivership proceedings or otherwise or in any workout or
restructuring) and (b) all 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 (i) this Agreement or any other Loan Documents or any
action taken or omitted by the Administrative Agent or any Agent hereunder or
thereunder, and (ii) any Environmental Claim and/or Environmental Complaint in
any way relating to or arising out of this Agreement or any other Loan Documents
or any action taken or omitted by the 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
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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 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, from and against all
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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
proportion to its Revolving Credit Ratable Share, for all amounts due and
payable by the Borrower to the Administrative Agent or the Agents, as the case
may be in connection with the periodic audit of the Loan Parties' books, records
and business properties by the Administrative Agent or the Agents.
9.8 Reliance by Agents.
The Administrative Agent and each Agent shall be entitled to rely
upon any writing, telegram, telex or teletype message, resolution, notice,
consent, certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and upon
the advice and opinions of counsel and other professional advisers selected by
the Administrative Agent or any Agent. The Administrative Agent and each Agent
shall be fully justified in failing or refusing to take any action hereunder
unless it shall first be indemnified to its satisfaction by the 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
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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, the Revolving
Credit Loans, the Swing Loans, the issuance of any Letter of Credit 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, JPMorgan Chase 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 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
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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 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.
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9.15 Administrative Agent's Fees.
The Borrower shall pay to the Administrative Agent a nonrefundable
fee (the "Administrative Agent's Fee") for the Administrative Agent's services
hereunder under the terms of a letter (the "Administrative Agent's Letter")
between the Borrower and the Administrative Agent, as amended from time to time.
9.16 Availability of Funds.
The Administrative Agent may assume that each 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 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 Certain Releases of Guarantors and Collateral.
It is expressly agreed that, upon the written request of the
Borrower (accompanied by such certificates and other documentation as the
Administrative Agent may reasonably request) the Administrative Agent on behalf
of the Lenders and without any consent or action by any Lender, may, so long as
no Event of Default exists after giving effect thereto, release: (i) any
Collateral, Additional Collateral or any Guarantor from a Guaranty Agreement, in
either case, in connection with any sale, transfer, lease, disposition, merger,
Permitted Receivables Financing or
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other transaction permitted by this Agreement, or (ii) any Subsidiary from the
Guaranty Agreement if such Subsidiary is no longer a Significant Subsidiary.
9.19 Beneficiaries.
Except as expressly provided herein, the provisions of this Section
9 are solely for the benefit of the 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.
9.20 No Reliance on Administrative Agent's Customer Identification
Program.
Each Lender acknowledges and agrees that neither such Lender, nor
any of its Affiliates, participants or assignees, may rely on the Administrative
Agent to carry out such Lender's, Affiliate's, participant's or assignee's
customer identification program, or other obligations required or imposed under
or pursuant to the USA Patriot Act or the regulations thereunder, including the
regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the
"CIP Regulations"), or any other Anti-Terrorism Law, including any programs
involving any of the following items relating to or in connection with any of
the Loan Parties, their Affiliates or their agents, the Loan Documents or the
transactions hereunder or contemplated hereby: (1) any identity verification
procedures, (2) any recordkeeping, (3) comparisons with government lists, (4)
customer notices or (5) other procedures required under the CIP Regulations or
such other Laws.
10. MISCELLANEOUS
10.1 Modifications, Amendments or Waivers.
With the written consent of the Required 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:
10.1.1 Increase of Revolving Credit Commitments; Extension of
Expiration Date; Modification of Terms of Payment.
Without the written consent of all Banks, 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
Commitment Fee or any other fee payable to any Bank
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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
Commitment Fee or any other fee payable to any Bank which has a Revolving Credit
Commitment;
10.1.2 Release of Guarantor.
Except as set forth in Section 9.18, without the written
consent of all Banks, release any Guarantor from its Obligations under the
Guaranty Agreement or any of the Collateral or any of the Additional Collateral
for any of the Loan Parties' Obligations; or
10.1.3 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 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
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outside counsel) for each Lender (except with respect to (A) and (B) below),
incurred by such Lender (a) in connection with the administration and
interpretation of this Agreement, and other instruments and documents to be
delivered hereunder, (b) relating to any amendments, waivers or consents
pursuant to the provisions hereof, (c) in connection with the enforcement of
this Agreement or any other Loan Document, or collection of amounts due
hereunder or thereunder or the proof and allowability of any claim arising under
this Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, (d) in any workout or restructuring or in connection
with the protection, preservation, exercise or enforcement of any of the terms
hereof or of any rights hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy proceedings, and (e)
in connection with any Environmental Claim and/or Environmental Complaint
threatened or asserted against the Lenders in any way relating to or arising out
of this Agreement or any other Loan Documents (including, without limitation,
the protection, preservation, exercise or enforcement or any of the terms hereof
or of any rights or remedies hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy or receivership
proceedings or otherwise or in any workout or restructuring), or (ii) all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Lender, in its capacity as
such, in any way relating to or arising out of (y) this Agreement or any other
Loan Documents or any action taken or omitted by such Lender hereunder or
thereunder, and (z) any Environmental Claim and/or Environmental Complaint in
any way relating to or arising out of this Agreement or any other Loan Documents
or any action taken or omitted by such Lender hereunder or thereunder, provided
that the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (A) if the same results from such Lender's gross
negligence or willful misconduct, or (B) if the Borrower was not given notice of
the subject claim and the opportunity to participate in the defense thereof, at
its expense (except that the Borrower shall remain liable to the extent such
failure to give notice does not result in a loss to the Borrower), or (C) if the
same results from a compromise or settlement agreement entered into without the
consent of the Borrower, which shall not be unreasonably withheld. None of the
Agents nor any Lender shall be liable for any damages arising from the use by
unauthorized persons of information or other materials sent through electronic,
telecommunications, or other information transmission systems that are
intercepted by such persons. None of the Agents nor any Lender shall be liable
or responsible to the Borrower or other party hereto for any special, indirect,
consequential or punitive damages in connection with the Loans or otherwise
under or in connection with the Loan Documents, the transactions contemplated
thereby or any of their respective obligations thereunder. The Lenders will
attempt to minimize the fees and expenses of legal counsel for the Lenders which
are subject to reimbursement by the Borrower hereunder by considering the use of
one law firm to represent the Lenders, 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
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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 and Swing Loans shall be due on
the Business Day preceding the Expiration Date if the Expiration Date is not a
Business Day. Whenever any payment or action to be made or taken hereunder
(other than payment of the Loans) shall be stated to be due on a day which is
not a Business Day, such payment or action shall be made or taken on the next
following Business Day (except as provided in Section 3.2 [Interest Periods]
with respect to Interest Periods under the Euro-Rate Option), and such extension
of time shall not be included in computing interest or fees, if any, in
connection with such payment or action.
10.5 Funding by Branch, Subsidiary or Affiliate.
10.5.1 Notional Funding.
Each 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.
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.
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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. Any notice delivered to the Borrower shall be deemed to
be notice to the Loan Parties and shall be binding upon all of the Loan Parties.
10.7 Severability.
The provisions of this Agreement are intended to be severable. If
any provision of this Agreement shall be held invalid or unenforceable in whole
or in part in any jurisdiction, such provision shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without in
any manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
10.8 Governing Law.
Each Letter of Credit and Section 2.9 [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, the Third Amendment Fee Letter and the other Loan
Documents supersede all prior understandings and agreements, whether written or
oral, between the parties hereto and thereto relating to the transactions
provided for herein and therein, including any prior confidentiality agreements
and commitments.
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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 consent of all of the Banks.
10.11.2 Assignments and Participations by Banks.
(a) This Section shall apply to any assignment or
participation by a Lender of its Loans, Letters of Credit Outstanding or
Commitments. Each Bank may, at its own cost, make assignments of all or any part
of its Revolving Credit Commitment and Revolving Credit 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, provided, however, that
consent of neither the Borrower, the Administrative Agent nor any Issuing Bank
shall be required for any assignment by a Lender to an Affiliate of such Lender
(so long as the assigning Lender provides notice of such assignment to the
Administrative Agent and pays to the Administrative Agent the $3,500 service fee
as hereinafter provided in this Section 10.11.2(a)), and provided further, that
assignments may not be made in amounts less than $5,000,000 (unless such
assignment is an assignment of all of a Bank's Loans or Commitments or unless
such assignment is made by a Lender to an Affiliate of such Lender or to another
Lender). Each Lender may, at its own cost, grant participations in all or any
part of its Revolving
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Credit Commitment and the Revolving Credit 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 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 subject to
such assignment, the Borrower shall execute and deliver a new Revolving Credit
Note to the assignee in an amount equal to the amount of the Revolving Credit
Commitment assumed by it and a new Revolving Credit Note to the assigning Bank
in an amount equal to the Revolving Credit Commitment retained by it hereunder.
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 or thereunder shall be determined as if such
Lender had not sold such participation.
(b) Designation.
(i) Notwithstanding anything to the contrary contained
herein, any Lender (a "Designating Lender") may grant to one or more special
purpose funding vehicles (each, an "SPV"), identified as such in writing from
time to time by the Designated Lender to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any Revolving
Credit Loan that such Designating Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that (x) nothing herein shall
constitute a commitment by any SPV to make any Revolving Credit Loan, (y) if an
SPV elects not to exercise such option or otherwise fails to provide all or any
part of such Revolving Credit Loan, the Designating Lender shall be obligated to
make such Revolving Credit Loan pursuant to the terms hereof and (z) the
Designating Lender shall remain liable for any indemnity or other payment
obligation with respect to its Commitment hereunder. The making of a Revolving
Credit Loan by an SPV hereunder shall utilize the Commitment of the Designating
Lender to the same extent, and as if, such Revolving Credit Loan were made by
such Designating Lender.
(ii) As to any Revolving Credit Loans or portion thereof
made by it, each SPV shall have all the rights that a Lender making such
Revolving Credit Loans or portion thereof would have had under this Agreement;
provided, however, that each SPV shall have granted to its Designating Lender an
irrevocable power of attorney, to deliver and receive all communications and
notices under this Agreement (and any Loan Documents) and to exercise, on such
SPV's behalf, all of such SPV's voting rights under this Agreement. No
additional Note shall be required to evidence the Revolving Credit Loans or
portion thereof made
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by an SPV; and the related Designating Lender shall be deemed to hold its Note
as agent for such SPV to the extent of the Revolving Credit Loans or portion
thereof funded by such SPV. In addition, any payments for the account of any SPV
shall be paid to its Designating Lender as agent for such SPV. Notwithstanding
any term or condition hereof, no SPV, unless it shall have become a Lender
hereunder in accordance with the terms of Section 10.11.2(a), shall be a party
hereto or have any right to vote or give or withhold its consent under this
Agreement. The Administrative Agent shall have no duty or obligation to give any
notices required to be delivered hereunder to any SPV.
(iii) Each party hereto hereby agrees that no SPV shall
be liable for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable. In furtherance of the foregoing, each party hereto
hereby agrees (which agreements shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the later of (x)
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPV, (y) the payment in full of all Revolving Credit Loans, and (z) the
termination of all Commitments, it will not institute against, or join any other
person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof, provided that the Designating Lender for each SPV
hereby agrees to indemnify, save and hold harmless each other party hereto for
any loss, cost, damage and expense arising out of the inability to institute any
such proceeding against such SPV.
(iv) In addition, notwithstanding anything to the
contrary contained in this Section 10.11.2(b) or otherwise in this Agreement
(other than the proviso set forth directly below in this Section 10.11.2(b), any
SPV may (y) with notice to, but without the prior written consent of the
Borrower or the Administrative Agent, at any time and without paying any
processing fee therefor, assign or participate all or a portion of its interest
in any Revolving Credit Loans to the Designating Lender or to any financial
institutions providing liquidity and/or credit support to or for the account of
such SPV to support the funding or maintenance of Revolving Credit Loans and (z)
disclose on a confidential basis any non public information relating to its
Revolving Credit Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancements to such SPV;
provided, however, that in no event may any non-public financial information
provided by the Borrower under Section 7.3 [Reporting Requirements] be provided
by any SPV to any other Person. In no event shall the Borrower be obligated to
pay to any SPV that has made a Revolving Credit Loan any greater amount than the
Borrower would have been obligated to pay under this Agreement if the
Designating Lender had made such Revolving Credit Loan. This Section 10.11.2(b)
may not be amended without the written consent of any Designating Lender
affected thereby.
10.11.3 Non-U.S. Assignees and Participants.
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
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Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees or participants), provided that
such assignees and participants agree to be bound by the provisions of Section
10.12 [Confidentiality].
10.11.4 Assignments by Lenders to Federal Reserve Banks.
Notwithstanding any other provision in this Agreement, any
Lender may at any time pledge or grant a security interest in all or any portion
of its rights under this Agreement, its Notes (if any) and the other Loan
Documents to any Federal Reserve Bank 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. In no event shall such Federal Reserve Bank, as a
result of such pledge or grant of a security interest, be considered to be a
"Lender" hereunder or be entitled to require the assigning Lender to take or
omit to take any action hereunder. For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section 10.11 concerning
assignments relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender to any Federal Reserve Bank in accordance with applicable
law.
10.12 Confidentiality.
10.12.1 General.
The 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 execution, administration and enforcement of
this Agreement, subject to the agreement of such Persons to maintain the
confidentiality, (ii) to assignees and participants as contemplated by Section
10.11 [Successors and Assigns], (iii) to any direct or indirect contractual
counterparty in any swap, hedge, securitization or similar agreement or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 10.12) (iv) to the extent requested
by any bank regulatory authority or, with notice to the Borrower as permitted by
applicable Law, as otherwise required by applicable Law or by any subpoena or
similar legal process, or in connection with any investigation or proceeding
arising out of the transactions contemplated by this Agreement, (v) if it
becomes publicly available other than as a result of a breach of this Agreement
or becomes available from a source not known to be subject to confidentiality
restrictions, (vi) any nationally recognized rating agency that requires access
to information about the Lender's investment portfolio, (vii) in connection with
the exercise, preservation or protection of any right or remedy hereunder or
under the other Loan Documents, applicable law or in equity, or (viii) if the
Borrower shall have consented to such disclosure. Notwithstanding anything
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herein to the contrary, the information subject to this Section 10.12.1 shall
not include, and the Administrative Agent and each Lender may disclose without
limitation of any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Income Tax Regulation
Section 1.6011-4) of the transactions contemplated hereby and all materials of
any kind (including opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax structure
of the transaction as well as other information, this sentence shall only apply
to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans, Letters of Credit and transactions
contemplated hereby.
10.12.2 Sharing Information With Affiliates of the Lenders.
The Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Borrower or one or more of its Affiliates (in connection with this Agreement
or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such
Lender and the Borrower (on its own behalf and on behalf of its Subsidiaries)
hereby authorizes each Lender to share any information delivered to such Lender
by the Borrower and its Subsidiaries pursuant to this Agreement, or in
connection with the decision of such Lender to enter into this Agreement, to any
such Subsidiary or Affiliate of such Lender, it being understood that any such
Subsidiary or Affiliate of any Lender receiving such information shall be bound
by the provisions of Section 10.12.1 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 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.
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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, THE COLLATERAL OR THE ADDITIONAL COLLATERAL TO THE FULL EXTENT
PERMITTED BY LAW.
10.17 Certifications from Lenders and Participants.
10.17.1 Tax Withholding.
Each Lender or assignee or participant of a Lender that is not
incorporated under the Laws of the U. S. or a state thereof (and, upon the
written request of the Administrative Agent, each other Lender or assignee or
participant of a Lender) agrees that it will deliver to each of the Borrower and
the Administrative Agent two (2) duly completed appropriate valid Withholding
Certificates (as defined under Section 1.1441-1(c)(16) of the Income Tax
Regulations) certifying its status (i.e., U.S. or foreign Person) and, if
appropriate, making a claim of reduced, or exemption from, U.S. withholding tax
on the basis of an income tax treaty or an exemption provided by the Internal
Revenue Code. The term "Withholding Certificate" includes a Form W-9; Form
W-8BEN; Form W-8ECI; or, Form W-8IMY, and the related statements and
certifications as required under Section 1.1441-1(c)(3) of the Income Tax
Regulations; a statement described in Section 1.871-14(c)(2)(v) of the Income
Tax Regulations; or, any other certificates under the Internal Revenue Code or
Income Tax Regulations that certify or establish the status of a payee or
beneficial owner as a U.S. or foreign Person. Each Lender, assignee or
participant required to deliver to the Borrower and the Administrative Agent a
valid Withholding Certificate pursuant to the preceding sentence shall deliver
such valid Withholding Certificate as follows: (A) each Lender which is a party
hereto on the Restatement Effective Date shall deliver such valid Withholding
Certificate at least five (5) Business Days prior to the first date on which any
interest or fees are payable by the Borrower hereunder for the account of such
Lender; (B) each assignee or participant shall deliver such valid Withholding
Certificate at least five (5) Business Days before the effective date of such
assignment or participation (unless the Administrative Agent in its sole
discretion shall permit such assignee or participant to deliver such Withholding
Certificate less than five (5) Business Days before such date in which case it
shall be due on the
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date specified by the Administrative Agent). Each Lender, assignee or
participant which so delivers a valid Withholding Certificate further undertakes
to deliver to each of the Borrower and the Administrative Agent two (2)
additional copies of such Withholding Certificate (or a successor form) on or
before the date that such Withholding Certificate expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent
Withholding Certificate so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the Borrower or
the Administrative Agent. Notwithstanding the submission of a Withholding
Certificate claiming a reduced rate of, or exemption from U.S. withholding tax,
the Administrative Agent shall be entitled to withhold U. S. federal income
taxes at the full withholding rate, unless the Lender, assignee or participant
establishes pursuant to the foregoing that it is entitled to an exemption or
that it is subject to a reduced rate, or if in its reasonable judgment the
Administrative Agent is not required to do so under the due diligence
requirements imposed upon a withholding agent under Section 1.1441-7(b) of the
Income Tax Regulations. The Administrative Agent shall be indemnified under
Section 1.1461-1(e) of the Income Tax Regulations against any claims and demands
of any Lender or assignee or participant of a Lender for the amount of any tax
it deducts and withholds in accordance with regulations under Section 1441 of
the Internal Revenue Code.
10.17.2 USA Patriot Act.
Each Lender or assignee or participant of a Lender that is not
incorporated under the Laws of the U. S. or a state thereof (and is not excepted
from the certification requirement contained in Section 313 of the USA Patriot
Act and the applicable regulations because it is both (i) an affiliate of a
depository institution or foreign bank that maintains a physical presence in the
U.S. or foreign county, and (ii) subject to supervision by a banking authority
regulating such affiliated depository institution or foreign bank) shall deliver
to the Administrative Agent the certification, or, if applicable,
recertification, certifying that such Lender is not a "shell" and certifying to
other matters as required by Section 313 of the USA Patriot Act and the
applicable regulations: (1) within 10 days after the Second Restatement
Effective Date, and (2) as such other times as are required under the USA
Patriot Act.
10.18 Requirements for Significant Subsidiaries.
10.18.1 Guaranties and Collateral
Each Significant Subsidiary of the Borrower shall: (i) in the case
of a Subsidiary which is not a party to the Guaranty Agreement, execute and
deliver to the Administrative Agent a Guarantor Joinder in substantially the
form attached hereto as Exhibit 1.1(G)(1) pursuant to which it shall join as a
Guarantor each of the documents to which the Guarantors are parties; (ii) pledge
the equity interests it owns in any other Significant Subsidiary to the
Collateral Agent for the benefit of the Lenders on a first priority perfected
basis pursuant to the Pledge Agreements, (iii) execute and deliver to the
Administrative Agent documents, modified as appropriate to relate to such
Subsidiary, in the forms described in Section 6.1.1 [Officer's Certificate],
6.1.2 [Secretary's Certificate], 6.1.4 [Opinion of Counsel], 6.1.8 [Officer's
Certificate Regarding No Material Adverse Change and Solvency], 6.1.11
[Insurance], (iv) cause all of the issued and outstanding capital stock,
partnership interests, member interests or other equity interest of such
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Significant Subsidiary that are owned by the Borrower or another Subsidiary of
the Borrower to be pledged on a first priority perfected basis to the Collateral
Agent for the benefit of the Lenders pursuant to the Pledge Agreements, and (v)
deliver to the Administrative Agent such other documents and agreements as the
Administrative Agent may reasonably request, with all documents and agreements
delivered and all actions taken as required by this Section 10.18.1 to be to the
satisfaction of the Administrative Agent.
10.18.2 Additional Collateral
Each Significant Subsidiary which is formed or acquired after the
Additional Collateral Trigger Date and each Subsidiary which becomes a
Significant Subsidiary after the Additional Collateral Trigger Date shall: (i)
execute and deliver to the Administrative Agent for the benefit of the Lenders
Additional Collateral Documents in form and substance satisfactory to the
Administrative Agent, including without limitation Security Agreements, Patent,
Trademark and Copyright Security Agreements, and Mortgages necessary to grant
first priority perfected liens and security interests (subject only to Permitted
Liens) in favor of the Lenders in the following assets of the such Significant
Subsidiary (subject to the discretion of the Administrative Agent to exclude any
of the following assets from the Additional Collateral in the event that the
taking of Liens upon such assets is impractical, prohibited by law or
commercially unreasonable in the Administrative Agent's judgment): accounts,
inventory, furniture, fixtures, improvements, as-extracted collateral, general
intangibles, coal supply agreements, other material contracts, coal reserves,
mineral rights, the NRP Interests, any material Property of any such Significant
Subsidiary and any other assets of any such Significant Subsidiary as the
Administrative Agent in its sole discretion may request, (ii) deliver opinions
of legal counsel, with respect to such Significant Subsidiary, including
opinions of local counsel in each applicable jurisdiction, as such opinions may
be reasonably required by the Administrative Agent and with such opinions to be
satisfactory in form, scope and substance to the Administrative Agent in its
reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord
Waivers, and (iv) title commitments or title reports with respect to any
Property of such Significant Subsidiary which is subject to any Mortgage
evidencing that such Property is free and clear of any and all defects and
encumbrances whatsoever and is subject only to such exceptions as may be
approved in writing by the Administrative Agent.
10.19 Amendment and Restatement; No Novation.
This Agreement amends and restates in its entirety the Original
Credit Agreement; and, Borrower confirms that the Original Credit Agreement, the
Collateral Documents, the other Loan Documents and the Collateral for the
Obligations thereunder (as all such capitalized terms are defined in the
Original Credit Agreement) have at all times, since the date of the execution
and delivery of such documents, remained in full force and effect and continued
to secure such obligations which are continued as the Obligations hereunder as
amended hereby; and, all such Collateral (as defined in the Original Credit
Agreement), pursuant to the Collateral Documents hereunder shall continue to
secure the Obligations hereunder. The Revolving Credit Loans and Swing Loans
hereunder are a continuation of and refinance the Revolving Credit Loans and
Swing Loans under (and as such terms are defined in) the Original Credit
Agreement. Borrower and Administrative Agent acknowledge and agree that the
amendment and restatement of the
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Original Credit Agreement by this Agreement is not intended to constitute, nor
does it constitute, a novation, interruption, suspension of continuity,
satisfaction, discharge or termination of the obligations, loans, liabilities,
or indebtedness under the Original Credit Agreement and other Loan Documents
thereunder or the collateral security therefor and this Agreement and the other
Loan Documents are entitled to all rights and benefits originally pertaining to
the Original Credit Agreement and the other Loan Documents (as such term is
defined therein). All Notes existing on the Second Restatement Effective Date
remain in full force and effect and this Agreement is not intended to
constitute, and does not constitute a novation or satisfaction of the
Obligations represented by the Notes.
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