Exhibit 4.7
$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
Dated as of April 18, 2002
================================================================================
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC.
and
PNC CAPITAL MARKETS, INC.,
as Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Section Page
- vi -
1. CERTAIN DEFINITIONS......................................................................................1
1.1 Certain Definitions.............................................................................1
1.2 Construction...................................................................................26
1.2.1 Number; Inclusion...................................................................26
1.2.2 Determination.......................................................................26
1.2.3 Administrative Agent's Discretion and Consent.......................................26
1.2.4 Documents Taken as a Whole..........................................................26
1.2.5 Headings............................................................................27
1.2.6 Implied References to This Agreement................................................27
1.2.7 Persons.............................................................................27
1.2.8 Modifications to Documents..........................................................27
1.2.9 From, To and Through................................................................27
1.2.10 Shall; Will.........................................................................27
1.3 Accounting Principles..........................................................................27
2. REVOLVING CREDIT AND SWING LOAN FACILITIES..............................................................28
2.1 Revolving Credit Commitments...................................................................28
2.1.1 Revolving Credit Loans..............................................................28
2.1.2 Swing Loan Commitment...............................................................28
2.2 Nature of Banks' Obligations With Respect to Revolving Credit Loans............................28
2.3 Commitment Fee.................................................................................29
2.4 Loan Requests..................................................................................29
2.4.1 Committed Loan Requests.............................................................29
2.4.2 Swing Loan Requests.................................................................30
2.5 Making Revolving Credit Loans and Swing Loans..................................................30
2.5.1 Making Swing Loans..................................................................30
2.6 Swing Loan Note................................................................................30
2.7 Use of Proceeds................................................................................31
2.8 Borrowings to Repay Swing Loans................................................................31
2.9 Letter of Credit Subfacility...................................................................31
2.9.1 Issuance of Letters of Credit.......................................................31
2.9.2 Letter of Credit Fees...............................................................32
2.9.3 Participations in Letters of Credit; Disbursements, Reimbursement...................32
2.9.4 Documentation.......................................................................33
2.9.5 Determinations to Honor Drawing Requests............................................34
2.9.6 Nature of Participation and Reimbursement Obligations...............................34
2.9.7 Indemnity...........................................................................35
2.9.8 Liability for Acts and Omissions....................................................36
3. INTEREST RATES..........................................................................................37
3.1 Interest Rate Options..........................................................................37
3.1.1 Interest Rate Options...............................................................38
3.1.2 Rate Quotations.....................................................................38
3.1.3 Change in Fees or Interest Rates....................................................38
3.2 Interest Periods...............................................................................39
3.2.1 Ending Date and Business Day........................................................39
3.2.2 Amount of Borrowing Tranche.........................................................39
3.2.3 Termination Before Applicable Expiration Date......................................39
3.2.4 Renewals............................................................................39
3.3 Interest After Default.........................................................................39
3.3.1 Letter of Credit Fees, Interest Rate................................................39
3.3.2 Other Obligations...................................................................40
3.3.3 Acknowledgment......................................................................40
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.................40
3.4.1 Unascertainable.....................................................................40
3.4.2 Illegality; Increased Costs; Deposits Not Available.................................40
3.4.3 Administrative Agent's and Lender's Rights..........................................41
3.5 Selection of Interest Rate Options.............................................................41
4. PAYMENTS ...............................................................................................42
4.1 Payments.......................................................................................42
4.2 Pro Rata Treatment of Banks....................................................................42
4.3 Interest Payment Dates.........................................................................42
4.4 Prepayments....................................................................................43
4.4.1 Voluntary Prepayments...............................................................43
4.4.2 Replacement of a Lender.............................................................44
4.4.3 Change of Lending Office............................................................44
4.4.4 Voluntary Reduction of Commitments..................................................45
4.4.5 Mandatory Prepayment Upon Sale of Assets; Mandatory Reduction of Revolving
Credit Commitments..................................................................45
4.5 Additional Compensation in Certain Circumstances...............................................46
4.5.1 Increased Costs or Reduced Return Resulting From Taxes, Reserves, Capital Adequacy
Requirements, Expenses, Etc.........................................................46
4.5.2 Indemnity...........................................................................46
4.6 Notes..........................................................................................47
4.7 Settlement Date Procedures.....................................................................47
4.8 Taxes..........................................................................................48
4.8.1 No Deductions.......................................................................48
4.8.2 Stamp Taxes.........................................................................48
4.8.3 Indemnification for Taxes Paid by Lenders...........................................48
4.8.4 Certificate.........................................................................48
4.8.5 Survival............................................................................49
4.8.6 Refund and Contest..................................................................49
5. REPRESENTATIONS AND WARRANTIES..........................................................................49
5.1 Representations and Warranties.................................................................49
5.1.1 Organization and Qualification......................................................49
5.1.2 Shares of Borrower; Subsidiaries; and Subsidiary Shares.............................49
5.1.3 Power and Authority.................................................................50
5.1.4 Validity and Binding Effect.........................................................50
5.1.5 No Conflict.........................................................................51
5.1.6 Litigation..........................................................................51
5.1.7 Financial Statements................................................................51
5.1.8 Use of Proceeds; Margin Stock.......................................................52
5.1.9 Full Disclosure.....................................................................52
5.1.10 Taxes...............................................................................53
5.1.11 Consents and Approvals..............................................................53
5.1.12 No Event of Default; Compliance With Instruments and Material Contracts.............53
5.1.13 Insurance...........................................................................54
5.1.14 Compliance With Laws................................................................54
5.1.15 Investment Companies; Regulated Entities............................................54
5.1.16 Plans and Benefit Arrangements......................................................54
5.1.17 Employment Matters..................................................................55
5.1.18 Environmental Matters...............................................................55
5.1.19 Senior Debt Status..................................................................56
5.1.20 Title to Properties.................................................................56
5.1.21 Coastal Agreement...................................................................56
5.1.22 Patents, Trademarks, Copyrights, Licenses, Etc......................................56
5.1.23 Security Interests..................................................................56
5.1.24 Status of Pledged Collateral........................................................57
5.1.25 Solvency............................................................................57
5.2 Continuation of Representations................................................................57
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT.................................................57
6.1 First Loans and Letters of Credit..............................................................58
6.1.1 Officer's Certificate...............................................................58
6.1.2 Secretary's Certificate.............................................................58
6.1.3 Delivery of Loan Documents; Filing Receipts.........................................58
6.1.4 Opinion of Counsel..................................................................59
6.1.5 Legal Details.......................................................................59
6.1.6 Payment of Fees.....................................................................59
6.1.7 Consents............................................................................59
6.1.8 Officer's Certificate Regarding No Material Adverse Change and Solvency.............60
6.1.9 No Violation of Laws................................................................60
6.1.10 No Actions or Proceedings...........................................................60
6.1.11 Insurance...........................................................................60
6.1.12 Refinancing.........................................................................60
6.1.13 Report of Independent Engineer......................................................61
6.1.14 Satisfactory Environmental Review...................................................61
6.2 Each Additional Loan or Letter of Credit.......................................................61
7. COVENANTS...............................................................................................61
7.1 Affirmative Covenants..........................................................................61
7.1.1 Preservation of Existence, Etc......................................................62
7.1.2 Payment of Liabilities, Including Taxes, Etc........................................62
7.1.3 Maintenance of Insurance............................................................62
7.1.4 Maintenance of Properties and Leases................................................63
7.1.5 Visitation Rights...................................................................63
7.1.6 Keeping of Records and Books of Account.............................................63
7.1.7 Plans and Benefit Arrangements......................................................63
7.1.8 Compliance With Laws................................................................64
7.1.9 Use of Proceeds.....................................................................64
7.1.10 Operation of Mines..................................................................64
7.1.11 Maintenance of Material Contracts...................................................64
7.1.12 Further Assurances..................................................................64
7.1.13 Subordination of Intercompany Loans.................................................65
7.2 Negative Covenants.............................................................................65
7.2.1 Indebtedness........................................................................65
7.2.2 Liens...............................................................................66
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions.................................66
7.2.4 Dispositions of Assets or Subsidiaries..............................................67
7.2.5 Affiliate Transactions..............................................................69
7.2.6 Subsidiaries, Partnerships and Joint Ventures.......................................69
7.2.7 Continuation of or Change in Business...............................................70
7.2.8 Plans and Benefit Arrangements......................................................70
7.2.9 Off-Balance Sheet Financing and Capital Leases......................................70
7.2.10 Maximum Leverage Ratio..............................................................70
7.2.11 Minimum Fixed Charge Coverage Ratio.................................................71
7.2.12 Minimum Net Worth...................................................................71
7.2.13 No Restriction on Dividends.........................................................71
7.2.14 Loans and Investments...............................................................71
7.2.15 No Amendments to Acquisition Documents..............................................72
7.2.16 Transactions With Respect to AWAC...................................................72
7.3 Reporting Requirements.........................................................................73
7.3.1 Quarterly Financial Statements......................................................73
7.3.2 Annual Financial Statements.........................................................73
7.3.3 Certificate of the Borrower.........................................................74
7.3.4 Notice of Default...................................................................74
7.3.5 Notice of Litigation................................................................74
7.3.6 Notice of Change in Debt Rating.....................................................74
7.3.7 Notices Regarding Plans and Benefit Arrangements....................................74
7.3.8 Other Information...................................................................76
8. DEFAULT 76
8.1 Events of Default..............................................................................76
8.1.1 Payments Under Loan Documents.......................................................76
8.1.2 Breach of Warranty..................................................................76
8.1.3 Breach of Negative Covenants or Visitation Rights...................................77
8.1.4 Breach of Other Covenants...........................................................77
8.1.5 Defaults in Other Agreements or Indebtedness........................................77
8.1.6 Judgments or Orders.................................................................78
8.1.7 Loan Document Unenforceable.........................................................78
8.1.8 Proceedings Against Assets..........................................................78
8.1.9 Notice of Lien or Assessment........................................................78
8.1.10 Insolvency..........................................................................78
8.1.11 Events Relating to Plans and Benefit Arrangements...................................79
8.1.12 Cessation of Business...............................................................79
8.1.13 Change of Control...................................................................79
8.1.14 Involuntary Proceedings.............................................................80
8.1.15 Voluntary Proceedings...............................................................80
8.2 Consequences of Event of Default...............................................................80
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings...80
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings................................81
8.2.3 Set-off.............................................................................81
8.2.4 Suits, Actions, Proceedings.........................................................81
8.2.5 Application of Proceeds.............................................................82
8.2.6 Other Rights and Remedies...........................................................82
9. THE AGENTS..............................................................................................82
9.1 Appointment....................................................................................82
9.2 Delegation of Duties...........................................................................83
9.3 Nature of Duties; Independent Credit Investigation.............................................83
9.4 Actions in Discretion of Agents; Instructions From the Banks...................................84
9.5 Reimbursement and Indemnification of Agents by the Borrower....................................84
9.6 Exculpatory Provisions; Limitation of Liability................................................85
9.7 Reimbursement and Indemnification of Agents by the Lenders.....................................85
9.8 Reliance by Agents.............................................................................86
9.9 Notice of Default..............................................................................86
9.10 Notices........................................................................................86
9.11 Banks in Their Individual Capacities...........................................................87
9.12 Holders of Notes...............................................................................87
9.13 Equalization of Lenders........................................................................87
9.14 Successor Agents...............................................................................88
9.15 Administrative Agent's Fees....................................................................88
9.16 Availability of Funds..........................................................................89
9.17 Calculations...................................................................................89
9.18 Certain Releases of Guarantors and Collateral..................................................89
9.19 Beneficiaries..................................................................................89
10. MISCELLANEOUS...........................................................................................90
10.1 Modifications, Amendments or Waivers...........................................................90
10.1.1 Increase of Revolving Credit Commitments; Extension of Expiration Date; Modification
of Terms of Payment.................................................................90
10.1.2 Release of Guarantor................................................................90
10.1.3 Miscellaneous.......................................................................90
10.2 No Implied Waivers; Cumulative Remedies; Writing Required......................................91
10.3 Reimbursement and Indemnification of Lenders by the Borrower; Taxes............................91
10.4 Holidays.......................................................................................92
10.5 Funding by Branch, Subsidiary or Affiliate.....................................................92
10.5.1 Notional Funding....................................................................92
10.5.2 Actual Funding......................................................................93
10.6 Notices........................................................................................93
10.7 Severability...................................................................................93
10.8 Governing Law..................................................................................94
10.9 Prior Understanding............................................................................94
10.10 Duration; Survival.............................................................................94
10.11 Successors and Assigns.........................................................................94
10.11.1 Binding Effect; Assignments by Borrower.............................................94
10.11.2 Assignments and Participations by Banks.............................................95
10.11.3 Non-U.S. Assignees and Participants.................................................97
10.11.4 Assignments by Lenders to Federal Reserve Banks.....................................97
10.12 Confidentiality................................................................................97
10.12.1 General.............................................................................97
10.12.2 Sharing Information With Affiliates of the Lenders..................................98
10.13 Counterparts...................................................................................98
10.14 Agent's or Lender's Consent....................................................................98
10.15 Exceptions.....................................................................................98
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.........................................................99
10.17 Tax Withholding................................................................................99
10.18 Joinder of Guarantors.........................................................................100
10.19 Amendment and Restatement; No Novation........................................................100
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 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
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
EXHIBIT 6.1.4 - OPINION OF COUNSEL
EXHIBIT 6.1.12 - CLOSING MATTERS AGREEMENT
EXHIBIT 7.3.3 - QUARTERLY COMPLIANCE CERTIFICATE
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of April 18, 2002,
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 (the "Original Credit Agreement"),
providing for a $600,000,000 revolving credit facility and a $300,000,000 term
loan 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 date hereof, 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 and refinanced
hereby and that the term loan facility under the Original Credit Agreement shall
be repaid in full; 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:
ACC shall mean the U.S. operations of ARCO Coal Company, a division of
ARCO.
Acquisition shall mean the transactions contemplated by the Purchase
Agreement and the Contribution Agreement, as such documents may be amended,
modified or supplemented after the Closing Date as permitted by Section
7.2.15.
Acquisition Documents shall mean collectively the Purchase Agreement,
the Contribution Agreement, the Tax Sharing Agreement, and the LLC
Agreements, as limited by their schedules and exhibits, as the same may be
amended, modified or supplemented after the Closing Date as permitted by
Section 7.2.15.
Administrative Agent shall mean PNC Bank, National Association, in its
capacity as administrative agent for the Lenders under this Agreement and
its successors in such capacity.
Administrative Agent's Fee shall have the meaning assigned to that
term in Section 9.15.
Administrative Agent's Letter shall have the meaning assigned to that
term in Section 9.15.
Affiliate as to any Person shall mean any other Person (i) which
directly or indirectly controls, is controlled by, or is under common
control with such Person, (ii) which beneficially owns or holds 5% or more
of any class of the voting or other equity interests of such Person, or
(iii) 5% or more of any class of voting interests or other equity interests
of which is beneficially owned or held, directly or indirectly, by such
Person. Control, as used in this definition, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the ownership of
voting securities, by contract or otherwise, including the power to elect a
majority of the directors or trustees of a corporation or trust, as the
case may be. Notwithstanding the foregoing, a Subsidiary of the Borrower
(other than an Excluded Subsidiary) shall not be deemed an Affiliate of the
Borrower.
Agents shall mean collectively the Administrative Agent 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 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.
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.
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 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 on the Restatement Effective
Date, as the same may hereafter be supplemented, amended, restated,
refinanced, replaced, or modified from time to time.
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.
ARCO shall mean Atlantic Richfield Company, a corporation
organized and existing under the laws of the State of Delaware.
Arrangers shall mean PNC and ▇▇▇▇▇▇.
Assignment and Assumption Agreement shall mean an Assignment and
Assumption Agreement by and among a Purchasing Bank, a Transferor Bank
and the Administrative Agent, as agent and on behalf of the remaining
Banks, substantially in the form of Exhibit 1.1(A).
AU Sub LLC Agreement shall mean that certain Limited Liability
Company Agreement, dated as of April 8, 1998, as amended, of AU Sub
LLC, a limited liability company organized and existing under the laws
of the State of Delaware.
Authorized Officer shall mean those individuals, designated by
written notice to the Administrative Agent from the Borrower,
authorized to execute notices, reports and other documents on behalf
of the Loan Parties required hereunder. The Borrower may amend such
list of individuals from time to time by giving written notice of such
amendment to the Administrative Agent.
Average Pledged Account Balance shall mean, as of the date of
determination, the average daily balance on deposit in or credited to
the Escrow Account during that period commencing on the first day of
the Period of Restriction in effect on the date of determination and
continuing through the date of determination. For purposes of this
definition, "Escrow Account" shall have the meaning ascribed to such
term by that Pledge Agreement (Investment Property), dated as of the
Restatement Effective Date, executed by Arch Western and each of its
Subsidiaries, as the same may be supplemented, amended, restated,
replaced, or modified from time to time, pursuant to the Arch Western
Credit Facility.
AWAC shall mean Arch Western Acquisition Corporation, a
corporation organized and existing under the laws of the State of
Delaware.
Banks shall mean the financial institutions named on Schedule
1.1(B) and their respective successors and assigns as permitted
hereunder, each of which is referred to herein as a Bank.
Base Net Worth shall mean the sum of $462,811,000, plus 50% of
consolidated net income of the Borrower and its Subsidiaries (before
the after-tax effect of changes in accounting principles) for each
fiscal quarter in which net income was earned plus 100% of the net
increase in Consolidated Tangible Net Worth resulting from the
issuance of any equity securities by the Borrower, for the period from
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 Effective 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(a)(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.
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.
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.
Business shall mean the business of owning and operating the U.S.
domestic coal properties of ACC, substantially as operated by ACC at
the time of the closing of the Acquisition.
Business Day shall mean any day other than a Saturday or Sunday
or a legal holiday on which commercial banks are authorized or
required to be closed for business in Pittsburgh, Pennsylvania and New
York, New York; and if the applicable Business Day relates to any Loan
to which the Euro-Rate Option applies, such day must also be a day on
which dealings are carried on in the London interbank market.
Canyon Fuel shall mean Canyon Fuel Company, LLC, a limited
liability company organized and existing under the laws of the State
of Delaware
Canyon Fuel LLC Agreement shall mean that certain Limited
Liability Company agreement by and between Arch Western (or a
Subsidiary of Arch Western) and Itochu Coal International, Inc., a
Delaware corporation, dated as of January 1, 1997, as amended, with
Arch Western and Itochu Coal International, Inc. as members of Canyon
Fuel Company, LLC, a Delaware limited liability company.
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 the property of the applicable Loan Parties
in which security interests are to be or have been granted under the
Pledge Agreements.
Collateral Agent shall mean the "Collateral Agent" as such term
is defined in the Collateral Sharing Agreement.
Collateral Documents shall mean collectively, the 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.
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 less intangible assets of the
Borrower and its Subsidiaries as of such date determined and
consolidated in accordance with GAAP less the positive number, if any,
equal to the amount of the Investment by the Borrower and its
Subsidiaries in Permitted Joint Ventures in excess of $30,000,000 and
adjusted to exclude the after tax effect of any changes in accounting
principles subsequent to the Restatement Effective Date.
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 $25,000,000 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), minus
(b) the sum of (1) the principal amount, expressly excluding any
interest income earned thereon, held on deposit in the Pledged
Collateral Account, as of the date of determination, and (2) solely
during a Period of Restriction, if any, in effect on the date of
determination, the Average Pledged Account Balance as of the date of
determination. 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.
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 income from operations before the effect of changes in
accounting principles, nonrecurring charges and extraordinary items,
net interest expense, income taxes, depreciation, depletion and
amortization, all for such period determined in accordance with GAAP.
Environmental Claim shall mean any administrative, regulatory or
judicial action, suit, claim, notice of non-compliance or violation,
notice of liability or potential liability, proceeding, consent order
or consent agreement relating in any way to any Environmental Law,
Environmental Permit, Regulated Substances, 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 Law shall mean any federal, state, local or foreign
statute, Law (including, but not limited to Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42
▇.▇.▇.▇▇. 9601 et seq., the Resource Conservation and Recovery Act
("RCRA"), 42 ▇.▇.▇.▇▇. 6901 et seq., the Hazardous Materials
Transportation Act, 49 ▇.▇.▇.▇▇. 1801 et seq., the Toxic Substances
Control Act, 15 ▇.▇.▇.▇▇. 2601 et seq., the Federal Water Pollution
Control Act, 33 ▇.▇.▇.▇▇. 1251 et seq., the Federal Safe Drinking
Water Act, 42 ▇.▇.▇.▇▇.▇▇. 300f-300j, the Federal Air Pollution
Control Act, 42 ▇.▇.▇.▇▇. 7401 et seq., the Oil Pollution Act, 33
▇.▇.▇.▇▇. 2701 et seq., the Federal Insecticide, Fungicide and
Rodenticide Act, 7 ▇.▇.▇.▇▇.▇▇. 136 to 136y, the Occupational Safety
and Health Act, 29 ▇.▇.▇.▇▇.▇▇. 651 et seq. the Mine Safety and Health
Act, 30 ▇.▇.▇.▇▇.▇▇. 801 et seq., the Surface Mining Control and
Reclamation Act 30 ▇.▇.▇.▇▇.▇▇. 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 Environmental
Law.
Environmentally Sensitive Area shall mean (i) any wetland as
defined by applicable Environmental Laws; (ii) any area designated as
a coastal zone pursuant to applicable Laws, including Environmental
Laws; (iii) any area of historic or archeological significance or
scenic area as defined or designated by applicable Laws, including
Environmental Laws; (iv) habitats of endangered species or threatened
species as designated by applicable Laws, including Environmental
Laws; or (v) a floodplain or other flood hazard area as defined
pursuant to any applicable Laws.
ERISA shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended or supplemented from time to time,
and any successor statute of similar import, and the rules and
regulations thereunder, as from time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all members
of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other
entities which, together with the Borrower, are treated as a single
employer under Section 414 of the Internal Revenue Code.
Euro-Rate shall mean, with respect to the 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(a)(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.
Event of Default shall mean any of the events described in
Section 8.1 and referred to therein as an "Event of Default."
Excluded Subsidiaries shall mean, collectively, AWAC, Arch
Western and the Subsidiaries of Arch Western.
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.
Financial Projections shall have the meaning assigned to that
term in Section 5.1.7(iii).
Fixed Charge Coverage Ratio shall mean the ratio of (a) the sum
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
Permitted Loan Origination Expense) 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 the above
determination, during any Period of Restriction, the amount in clause
(a) above shall be increased by interest income of Arch Western and
its Subsidiaries (other than interest income on the Eligible Note
Receivable (as defined in the Arch Western Credit Facility)), all as
determined on a consolidated basis in accordance with GAAP.
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 2.9.8.
Guarantor shall mean at any time each of the Significant
Subsidiaries of the Borrower.
Guarantor Joinder shall mean a joinder by a Person as a Guarantor
under the Guarantor Joinder and Assumption Agreement in the form of
Exhibit 1.1(G)(1).
Guaranty of any Person shall mean any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation of
any other Person in any manner, whether directly or indirectly,
including any such liability arising by virtue of partnership
agreements, including any agreement to indemnify or hold harmless any
other Person, any performance bond or other suretyship arrangement and
any other form of assurance against loss, except endorsement of
negotiable or other instruments for deposit or collection in the
ordinary course of business.
Guaranty Agreement shall mean the continuing 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 to the
Administrative Agent for the benefit of the Lenders, as the same may
be supplemented, amended, restated, replaced, or modified from time to
time, with such amendment, restatement, supplement or replacement to
be in form and substance satisfactory to the Administrative Agent.
Historical Statements shall have the meaning assigned to that
term in Section 5.1.7(i).
Hobet Dragline Lease shall mean the lease dated as of March 1,
1983, between Branch Banking and Trust Company, as successor to One
Valley Bank (formerly Kanawha Valley Bank, N.A.), as Owner Trustee,
Lessor, and Hobet Mining & Construction Co., Inc., as Lessee, as
amended through the Sixth Amendment thereto, dated as of June 1, 1998.
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.
Indebtedness shall mean, as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, or joint or several) of such Person for or in respect of:
(i) borrowed money, (ii) amounts raised under or liabilities in
respect of any note purchase or acceptance credit facility, (iii)
reimbursement obligations (contingent or otherwise) under any letter
of credit, (iv) any other transaction (including production payments
(excluding royalties), installment purchase agreements, forward sale
or purchase agreements, capitalized leases and conditional sales
agreements) having the commercial effect of a borrowing of money
entered into by such Person to finance its operations or capital
requirements (but not including trade payables and accrued expenses
incurred in the ordinary course of business which are not represented
by a promissory note or other evidence of indebtedness and which are
not more than thirty (30) days past due), or (v) any Guaranty of any
such Indebtedness. It is understood that Derivatives Obligations shall
not be deemed to be Indebtedness.
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 the same may be supplemented, amended,
restated, replaced, or modified from time to time, and Indemnity
Agreement shall mean any of the Indemnity Agreements.
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.
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.
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.
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.
Letter of Credit shall have the meaning assigned to that term in
Section 2.9.1.
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 sum of Debt of the
Borrower and its Subsidiaries, plus, without duplication, the
Appropriate Percentage of Debt of each Special Subsidiary, each on a
consolidated basis in accordance with GAAP (as the numerator) to
EBITDDA of the Borrower and its Subsidiaries, plus, without
duplication, the Appropriate Percentage of each Special Subsidiary's
EBITDDA, each on a consolidated basis in accordance with GAAP (as the
denominator). For purposes of calculating the Leverage Ratio, Debt
shall be determined as of the end of each fiscal quarter of the
Borrower and EBITDDA shall be determined as of the end of each fiscal
quarter of the Borrower for the four fiscal quarters then ended.
Lien shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, whether voluntarily or involuntarily given,
including any conditional sale or title retention arrangement, and any
assignment, deposit arrangement or lease intended as, or having the
effect of, security and any filed financing statement or other notice
of any of the foregoing (whether or not a lien or other encumbrance is
created or exists at the time of the filing).
LLC Agreements shall mean collectively the Arch Western LLC
Agreement, Canyon Fuel LLC Agreement, Mountain Coal LLC Agreement,
Arch of Wyoming LLC Agreement, AU Sub LLC Agreement, State Leases LLC
Agreement and Thunder Basin LLC Agreement.
LLC Interests shall have the meaning given to such term in
Section 5.1.2.
Loan Documents shall mean this Agreement, the Administrative
Agent's Letter, the Guaranty Agreement, the Notes, the Pledge
Agreements, the Indemnity Agreements, the Collateral Sharing
Agreement, the Subordination Agreement, 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.
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 all contracts, agreements or other
instruments described in Regulation S-K, Item 601(b)(10) promulgated
pursuant to the Securities Exchange Act of 1934, as amended, which the
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.
Mountain Coal LLC Agreement shall mean that certain Limited
Liability Company Agreement, dated as of March 6, 1998, as amended, of
Mountain Coal Company, L.L.C., a limited liability company organized
and existing under the laws of the State of Delaware.
Multiemployer Plan shall mean any employee benefit plan which is
a "multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to which the Borrower or any member of the ERISA Group is
then making or accruing an obligation to make contributions or, within
the preceding five Plan years, has made or had an obligation to make
such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the
ERISA Group) at least two of whom are not under common control, as
such a plan is described in Sections 4063 and 4064 of ERISA.
Net Cash Proceeds shall mean, with respect to any transaction, an
amount equal to the cash proceeds received by the Borrower or any of
its Subsidiaries (other than Excluded Subsidiaries) from or in respect
of such transaction (including, when received, any cash proceeds
received as income or other cash proceeds of any non-cash proceeds of
such transaction), less (x) any expenses or charges (including
commissions, fees and taxes paid or payable) reasonably incurred by
such Person in respect of such transaction, (y) any amounts considered
appropriate by the chief financial officer of the Borrower to provide
reserves in accordance with GAAP for payment of indemnities or
liabilities that may be incurred in connection with such sale or
disposition, and (z) in the case of any asset sale permitted by
Section 7.2.4(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 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.
Notes shall mean the Revolving Credit Notes and Swing Loan Note.
Notices shall have the meaning assigned to that term in Section
10.6.
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 or any other Loan
Document.
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, 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.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any
successor.
Period of Restriction shall mean any period of consecutive days
beginning on a date on which, pursuant to the terms of clause (iii) of
Section 7.2.14 [Loans and Investments] of the Arch Western Credit
Facility, Arch Western is prohibited from making any loans to the
Borrower, and continuing until such date as, pursuant to the terms of
clause (iii) of Section 7.2.14 [Loans and Investments] of the Arch
Western Credit Facility, Arch Western is permitted to make loans to
the Borrower.
Permitted Acquisitions shall have the meaning assigned to such
term in Section 7.2.3.
Permitted Investments shall mean:
(i) Direct obligations of the United States of America or
any agency or instrumentality thereof or obligations backed by
the full faith and credit of the United States of America
maturing in twelve (12) months or less from the date of
acquisition;
(ii) Commercial paper maturing in 180 days or less rated 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 ordinary course payment of
worker's compensation, reclamation liabilities or royalty bonds)
in an amount exceeding $50,000,000 shall not be in the ordinary
course of business);
(v) Encumbrances consisting of zoning restrictions,
easements or other restrictions on the use of real property, none
of which materially impairs the use of such property or the value
thereof, and none of which is violated in any material respect by
existing or proposed structures or land use;
(vi) Liens granted in the Collateral, subject to the
Collateral Sharing Agreement, to any 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) Liens securing Indebtedness (other than Indebtedness
secured by Liens described in clause (vii) above) of not more
than $25,000,000 at any time, including, without limitation, in
respect of Purchase Money Security Interests;
(viii) The following, (A) if the validity or amount thereof
is being contested in good faith by appropriate and lawful
proceedings diligently conducted so long as levy and execution
thereon have been stayed and continue to be stayed or (B) if a
final judgment is entered and such judgment is discharged within
thirty (30) days of entry, and they do not in the aggregate
materially impair the ability of any member of the Arch Coal
Group to perform its Obligations hereunder or under the other
Loan Documents:
(1) Claims or Liens for taxes, assessments or charges
due and payable and subject to interest or penalty, provided
that the applicable member of the Arch Coal Group maintains
such reserves or other appropriate provisions as 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;
(ix) any Lien or restriction resulting from ownership, by an
entity other than an Affiliate of the Borrower, of a minority
interest in Canyon Fuel;
(x) Liens granted in the Collateral under the Collateral
Documents to the Administrative Agent for the benefit of the
Lenders;
(xi) 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; and
(xii) 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.
Permitted Loan Origination Expense shall mean the aggregate
amount of all fees and expenses incurred by the Borrower, in
connection with the closing of the transactions on the Closing Date
under the Original Credit Agreement and under the Arch Western Credit
Facility then in effect, on the date of the First Amendment to the
Original Credit Agreement, and on the Restatement Effective Date under
this Agreement and under the Arch Western Credit Facility as amended
and restated on such date, which are required to be capitalized in
accordance with GAAP.
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.
Person shall mean any individual, corporation, partnership,
limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political
subdivision or agency thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan)
which is covered by Title IV of ERISA or is subject to the minimum
funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time
within the preceding five years been maintained by any entity which
was at such time a member of the ERISA Group for employees of any
entity which was at such time a member of the ERISA Group.
Pledge Agreements shall mean collectively the Amended and
Restated Pledge Agreement in substantially the form of Exhibit 1.1(P)
hereto and each other similar pledge agreement in form and substance
acceptable to the Administrative Agent, each as executed and delivered
by the applicable Loan Parties to the Administrative Agent 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.
Pledged Collateral Account shall mean that account pledged as
collateral security pursuant to that Pledge Agreement (Pledged
Collateral Account), dated as of the Restatement Effective Date,
executed by Arch Western, as the same may be supplemented, amended,
restated, replaced, or modified from time to time, pursuant to the
Arch Western Credit Facility.
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 which is 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, 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.
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 Law including, without
limitation, petroleum and petroleum products (including crude oil and
any fractions thereof), natural 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 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.
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.
Settlement Date shall mean each Business Day on which the
Administrative Agent effects settlement pursuant to Section 4.7.
Significant Subsidiary shall mean any Subsidiary of Borrower
other than the Excluded Subsidiaries, 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.
Standby Letter of Credit shall mean a Letter of Credit issued to
support obligations of one or more Persons, contingent or otherwise,
which finance the working capital and business needs of such Persons
incurred in the ordinary course of business.
State Leases LLC Agreement shall mean that certain Limited
Liability Company Agreement, dated as of April 8, 1998, as amended, of
State Leases LLC, a limited liability company organized and existing
under the laws of the State of Delaware.
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 to the
Administrative Agent 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.
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.
Thunder Basin LLC Agreement shall mean that certain Limited
Liability Company Agreement, dated as of July 10, 1998, as amended, of
Thunder Basin Coal Company, L.L.C., a limited liability company
organized and existing under the laws of the State of Delaware.
Transferor Bank shall mean the selling Bank pursuant to an
Assignment and Assumption Agreement.
Uniform Commercial Code shall have the meaning assigned to that
term in Section 5.1.23.
U.S. shall mean the United States of America.
U.S. Bank shall mean U.S. Bank National Association, its
successors and assigns.
Withholding Certificate shall have the meaning assigned to that
term in Section 10.17.
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 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.
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.
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 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 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 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 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, the Issuing Bank will issue a Letter of Credit provided that each
Letter of Credit shall (A) have a maximum maturity of twelve (12) Months
from the date of issuance, and (B) in no event expire later than ten (10)
Business Days prior to the Expiration Date and provided that in no event
shall (i) the Letters of Credit Outstanding exceed, at any one time,
$150,000,000, (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 shall be issued
for the benefit or the use of, directly or indirectly, any Significant
Subsidiary which is a member of the Arch Coal Group which is not a party to
the Guaranty Agreement until such time as such Significant Subsidiary has
joined the Guaranty Agreement in accordance with Section 10.18 [Joinder of
Guarantors]. 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 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.
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 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 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 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.
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.
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:
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
(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
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.
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 $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 [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 indemnify the Banks under Section 4.5.2 [Indemnity]. If
the Debt Rating applicable to the Borrower is BBB- or better 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.
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 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 (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 under the laws of its jurisdiction of organization. Each Loan
Party and each Subsidiary of each Loan Party has the lawful power to own or
lease its properties and to engage in the business it presently conducts or
proposes to conduct. Each Loan Party and each Subsidiary of each Loan Party is
duly licensed or qualified and in good standing in each jurisdiction where the
property owned or leased by it or the nature of the business transacted by it or
both makes such licensing or qualification necessary and where the failure to so
qualify could reasonably be expected to result in a Material Adverse Change.
5.1.2 Shares of Borrower; Subsidiaries; and Subsidiary Shares.
On the Restatement Effective Date, Schedule 5.1.2 states the name of each
of the Borrower's Subsidiaries, its jurisdiction of incorporation, its
authorized capital stock, the issued and outstanding shares (referred to herein
as the "Subsidiary Shares") and the owners thereof if it is a corporation, its
outstanding partnership interests (the "Partnership Interests") if it is a
partnership and its outstanding limited liability company interests, interests
assigned to managers thereof and the voting rights associated therewith (the
"LLC Interests") if it is a limited liability company. On the Restatement
Effective Date, 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. On the Restatement Effective Date, there
are no options, warrants or other rights outstanding to purchase any such
Borrower Shares, Subsidiary Shares, Partnership Interests or LLC Interests
except as indicated on Schedule 5.1.2.
5.1.3 Power and Authority.
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.
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.
5.1.5 No Conflict.
Neither the execution and delivery of this Agreement or the other Loan
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 (ii) any Law or any material
agreement or instrument or order, writ, judgment, injunction or decree to
whichany 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).
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, 2001 (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
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, 2001, 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 for the period January 1, 2002
through and including December 31, 2007 derived from various assumptions of the
Borrower's management (the "Financial Projections"). On the 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 the liabilities of the Borrower and its
Subsidiaries upon consummation of the transactions contemplated hereby as of the
Restatement Effective Date.
5.1.8 Use of Proceeds; Margin Stock.
5.1.8.1 General.
The Loan Parties shall use the proceeds of the Loans in accordance with
Sections 2.7 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 any certificate, statement, agreement or other documents
furnished to the Administrative Agent or any Lender in connection herewith or
therewith, contains with respect to the Borrower and its Subsidiaries 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.
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 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 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 addressed in Section 5.1.18 [Environmental Matters]) in all
jurisdictions in which any Loan Party or Subsidiary of any Loan Party is doing
business except where the failure to do so could not reasonably be expected to
result in a Material Adverse Change.
5.1.15 Investment Companies; Regulated Entities.
None of the Loan Parties or any Subsidiaries of any Loan Party is an
"investment company" registered or required to be registered under the
Investment Company Act of 1940 or under the "control" of an "investment company"
as such terms are defined in the Investment Company Act of 1940 and shall not
become such an "investment company" or under such "control." None of the Loan
Parties or any Subsidiary of any Loan Party is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
5.1.16 Plans and Benefit Arrangements.
(i) The Borrower and each other member of the ERISA Group are in compliance
in all material respects with any applicable provisions of ERISA with respect to
all Benefit Arrangements and Plans. There has been no Prohibited Transaction
with respect to any Benefit Arrangement or any Plan or, to the best knowledge of
the Borrower, with respect to any Multiemployer Plan or Multiple Employer Plan,
which could result in any material liability of the Borrower or any other member
of the ERISA Group. The Borrower and all other members of the ERISA Group have
made when due any and all payments required to be made under any agreement
relating to a Multiemployer Plan or a Multiple Employer Plan or any Law
pertaining thereto. With respect to each Plan and Multiemployer Plan, the
Borrower and each other member of the ERISA Group (i) have fulfilled in all
material respects their obligations under the minimum funding standards of
ERISA, (ii) have not incurred any liability to the PBGC (other than premium
payments), and (iii) have not had asserted against them any penalty for failure
to fulfill the minimum funding requirements of ERISA. All Plans and Benefit
Arrangements have been administered in all material respects with their terms
and applicable Law.
(ii) No event requiring notice to the PBGC under Section 302(f)(4)(A) of
ERISA has occurred or is reasonably expected to occur with respect to any Plan,
and no amendment with respect to which security is required under Section 307 of
ERISA has been made or is reasonably expected to be made to any Plan.
(iii) Neither the Borrower nor any other member of the ERISA Group has
incurred or reasonably expects to incur any material withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower
nor any other member of the ERISA Group has been notified by any Multiemployer
Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer
Plan has been terminated within the meaning of Title IV of ERISA and, to the
best knowledge of the Borrower, no Multiemployer Plan or Multiple Employer Plan
is reasonably expected to be reorganized or terminated, within the meaning of
Title IV of ERISA.
5.1.17 Employment Matters.
Each of the Loan Parties and each of their Subsidiaries is in substantial
compliance with the Labor Contracts and all applicable federal, state and local
labor and employment Laws including those related to equal employment
opportunity and affirmative action, labor relations, minimum wage, overtime,
child labor, medical insurance continuation, worker adjustment and relocation
notices, immigration controls and worker and unemployment compensation, where
the failure to comply could reasonably be expected to result in a Material
Adverse Change. There are no outstanding grievances, arbitration awards or
appeals therefrom arising out of the Labor Contracts or current or threatened
strikes, picketing, handbilling or other work stoppages or slowdowns at
facilities of any of the Loan Parties or any of their Subsidiaries which in any
case could reasonably be expected to result in a Material Adverse Change.
5.1.18 Environmental Matters.
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 court of governmental authority made pursuant to Environmental Laws except
for noncompliance with respect thereto which could not reasonably be expected to
result in a Material Adverse Change;
(d) there are no pending or, to the knowledge of any Loan Party, threatened
Environmental Claims against any Loan Party or any Subsidiary of any Loan Party
which could reasonably be expected to result in a Material Adverse Change; and
(e) there are no pending or, to the knowledge of any Loan Party, threatened
Environmental Complaints 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 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.
The Liens and security interests continued on the Restatement Effective
Date or thereafter granted to the Administrative Agent for the benefit of the
Lenders pursuant to the Pledge Agreements 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. 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, all such action as is necessary
or advisable to establish such rights of the Agent has been taken, and there is
no necessity for any further action in order to preserve, protect and continue
such rights, except the filing of continuation statements with respect to such
financing statements within six months prior to each five-year anniversary of
the filing of such financing statements 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.
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 Restatement Effective Date and at the time of each borrowing of
Revolving Credit Loans, both the Borrower and the Borrower and its Subsidiaries
on a consolidated basis are Solvent after giving effect to the transactions
contemplated by the Loan Documents and any incurrence of Indebtedness and all
other Obligations.
5.2 Continuation of Representations.
Except as to those representations and warranties limited by their terms to
the Closing Date or the Restatement Effective Date, as the case may be, the
Borrower makes the representations and warranties in this Section 5 on the
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
[First Loans and Letters of Credit] and 6.2 [Each Additional Loan or Letter of
Credit].
6. 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 First Loans and Letters of Credit.
On the Restatement Effective Date:
6.1.1 Officer's Certificate.
The representations and warranties of the Borrower contained in Section 5
and of each Loan Party in each of the other Loan Documents shall be true and
accurate on and as of the 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), and each of the Loan
Parties shall have performed and complied with all covenants and conditions
hereof and thereof, no Event of Default or Potential Default shall have occurred
and be continuing or shall exist; and there shall be delivered to the
Administrative Agent for the benefit of each Lender a certificate of the
Borrower dated the Restatement Effective Date and signed by the Chief Executive
Officer, President or Chief Financial Officer of the Borrower to each such
effect.
6.1.2 Secretary's Certificate.
There shall be delivered to the Administrative Agent for the benefit of
each Lender a certificate dated the Restatement Effective Date and signed by the
Secretary or an Assistant Secretary of each of the Loan Parties, certifying as
appropriate as to:
(i) all action taken by each Loan Party in connection with this Agreement
and the other Loan Documents;
(ii) the names of the officer or officers authorized to sign this Agreement
and the other Loan Documents and the true signatures of such officer or officers
and specifying the Authorized Officers permitted to act on behalf of each Loan
Party for purposes of this Agreement and the true signatures of such officers,
on which the Administrative Agent and each Lender may conclusively rely; and
(iii) in the case of the Borrower, copies of its organizational documents,
including its certificate of incorporation and bylaws as in effect on the
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; Filing Receipts.
This Agreement, the Notes, the Guaranty Agreement, the Collateral
Documents, the Subordination Agreement, 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 Administrative Agent for the benefit
of the Lenders under the Collateral Documents. The Administrative Agent shall
have received copies of all filing receipts and acknowledgments issued by any
governmental authority to evidence any recordation or filing necessary to
continue the perfection of the Lien of the Lenders on the Collateral or other
satisfactory evidence of such recordation
and filing.
6.1.4 Opinion of Counsel.
There shall be delivered to the Administrative Agent for the benefit of
each Lender a written opinion of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, the General Counsel for the Loan Parties (who may rely on the opinions of
such other counsel as may be acceptable to the Administrative Agent), dated the
Closing Date and in form and substance satisfactory to the Administrative Agent
and its counsel:
(i) as to the matters set forth in Exhibit 6.1.4; and
(ii) as to such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
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 Arrangers all fees
required to be paid by the Borrower to the Arrangers, to the Administrative
Agent for itself and for the account of the Lenders to the extent not previously
paid all fees accrued through the Restatement Effective Date and the costs and
expenses for which the Arrangers and the Lenders are entitled to be reimbursed.
6.1.7 Consents.
All material consents required to effectuate the transactions contemplated
by the Loan Documents and by the Acquisition Documents shall have been obtained,
including, as may be necessary, the consent of the requisite parties to the
Lease Documents in connection with the amendment and restatement of the
Collateral Sharing Agreement (including, without limitation, for the release of
a portion of the Collateral as described therein).
6.1.8 Officer's Certificate Regarding No Material Adverse Change and Solvency.
Since December 31, 2001, no Material Adverse Change shall have occurred;
since December 31, 2001, and through the Restatement Effective Date, there shall
have been no material change in the management of the Borrower; and there shall
have been delivered to the Administrative Agent for the benefit of each Lender a
certificate dated the 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 to each such effect and further
certifying that the Borrower and its Subsidiaries, on a consolidated basis are
Solvent after giving effect to the transactions contemplated hereby, the
accuracy of all representations and warranties by the Loan Parties under the
Loan Documents, the compliance with all covenants under the Loan Documents and
the absence of any Event of Default or Potential Default.
6.1.9 No Violation of Laws.
The making of the Loans, the issuance of the Letters of Credit and the
consummation of the transactions contemplated hereby shall not contravene any
Law applicable to any Loan Party or any of the Lenders.
6.1.10 No Actions or Proceedings.
No action, proceeding, investigation, regulation or legislation shall have
been instituted, threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to obtain damages in
respect of, this Agreement, the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby or which, in the Administrative
Agent's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents.
6.1.11 Insurance.
The Borrower shall have delivered to the Agents evidence of the insurance
required under the Loan Documents.
6.1.12 Refinancing.
(a) To permit the refinancing by the Lenders of the revolving credit loans
and the prepayment of the term loans, all as outstanding under the Original
Credit Agreement, Borrower shall have (i) delivered to the Administrative Agent
not later than 10:00 a.m., Pittsburgh time, three (3) Business Days prior to the
first Borrowing Date hereunder an appropriately completed irrevocable Committed
Loan Request pursuant to which Revolving Credit Loans in an amount sufficient to
refinance the revolving credit loans and prepay the term loans under the
Original Credit Agreement shall be requested, and (ii) made appropriate
arrangements with respect to all amounts outstanding under the Original Credit
Agreement in order to accomplish the amendment and restatement thereof on such
first Borrowing Date. Each Lender which was a lender under the Original Credit
Agreement, by execution of this Agreement, waives all notice of prepayment of
loans and all notice of termination of the commitments under the Original Credit
Agreement.
(b) In the event Borrower requests that the first Borrowing Date hereunder
occur on the Restatement Effective Date, Borrower shall provide to the
Administrative Agent, in addition to the Committed Loan Request required by
clause (a) directly above, its agreement in the form of Exhibit 6.1.12 pursuant
to which Borrower shall be bound by the terms of Section 4.5.2 with respect to
such proposed borrowing notwithstanding that this Agreement shall not be
effective at the time of such request and may not become effective on the date
such borrowing is contemplated.
6.1.13 Report of Independent Engineer.
The Borrower shall have delivered to the Agents the report of ▇▇▇▇
International, independent engineers, with respect to the coal reserves of
Borrower and its Subsidiaries and such other matters as are contained in such
report.
6.1.14 Satisfactory Environmental Review.
The environmental condition of the Loan Parties' and their Subsidiaries'
assets shall be satisfactory to the Agents in all respects.
6.2 Each Additional Loan or Letter of Credit.
At the time of making any Loans or issuing any Letters of Credit other than
Loans made or Letters of Credit issued on the Closing Date and after giving
effect to the proposed extensions of credit: the representations and warranties
of the Borrower contained in Section 5 and of the Loan Parties in the other Loan
Documents shall be true on and as of the date of such additional Loan or Letter
of Credit with the same effect as though such representations and warranties had
been made on and as of such date (except representations and warranties which
expressly relate solely to an earlier date or time, which representations and
warranties shall be true and correct on and as of the specific dates or times
referred to therein) and the Borrower shall have performed and complied with all
covenants and conditions hereof; no Event of Default or Potential Default shall
have occurred and be continuing or shall exist; the making of the Loans or
issuance of such Letter of Credit shall not contravene any Law applicable to the
Borrower or any Subsidiary of the Borrower or any of the Lenders; and the
Borrower shall have delivered to the Administrative Agent (and the Issuing Banks
in the case of a request for a Letter of Credit, 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, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings and with respect to which there are proper
reserves as required by GAAP.
7.1.3 Maintenance of Insurance.
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.
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.
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.
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 of
any Loan Party to any Loan Party to be subordinated pursuant to the terms of the
Subordination Agreement.
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 pursuant to the Arch
Western Credit Facility;
(v) Indebtedness of any Subsidiary of the Borrower which is a member of the
Arch Coal Group payable to the Borrower or to any other member of the Arch Coal
Group, 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;
(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
PermittedReceivables Financing; and
(ix) additional unsecured Indebtedness of the Borrower or any other Loan
Party incurred after the Restatement Effective Date for the purpose of
refinancing the indebtedness of Arch Western under the Arch Western Credit
Facility, so long as, the terms and conditions thereof are reasonably
satisfactory to the Agents and the Required Lenders.
7.2.2 Liens.
The Borrower shall not, and shall not permit AWAC or any member of the Arch
Coal Group to, at any time create, incur, assume or suffer to exist any Lien on
any of its respective property or assets, tangible or intangible, now owned or
hereafter acquired, or agree or become liable to do so, except, in the case of
the Borrower and the Arch Coal Group, Permitted Liens.
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
dissolve, liquidate or wind-up its affairs, or become a party to any merger or
consolidation, or acquire by purchase, lease or otherwise all or substantially
all of the assets or capital stock of any other Person, provided that:
(1) any Subsidiary of the Borrower may consolidate or merge into any other
Subsidiary of the Borrower (except for the Excluded Subsidiaries), and
(2) any Loan Party may acquire, whether by purchase or by merger, (A) all
of the ownership interests of another Person or (B) substantially all of assets
of another Person or of a business or division of another Person (each a
"Permitted Acquisition"), provided that each of the following requirements is
met:
(i) the board of directors or other equivalent governing body of such
Person shall have approved such Permitted Acquisition;
(ii) the business acquired, or the business conducted by the Person whose
ownership interests are being acquired, as applicable, shall be substantially
the same as one or more line or lines of business conducted by the Loan Parties
and shall comply with Section 7.2.7 [Continuation of or Change in Business], 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 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 [Joinder of
Guarantors], 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;
(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;
(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
saleafter 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,
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 (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 clause (vii), (viii), (ix), or (x) below, so long as 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;
(vii) any transfer of assets by the Borrower to Arch Western as
contemplated by the Contribution Agreement;
(viii) any transfer of assets by any member of the Arch Western Group
permitted by the Arch Western Credit Facility, as in effect on the Closing Date;
(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, 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, 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 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.
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 joined the Guaranty Agreement as Guarantor, which has
pledged 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, who has executed all other Loan
Documents, who has also delivered to the Administrative Agent such opinions of
counsel and other documents in connection therewith as the Administrative Agent
may reasonably request, and who has caused all of the issued and outstanding
capital stock, partnership interests, member interests or other equity interest
of such 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, all in form and substance satisfactory to the Administrative Agent.
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 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 $100,000,000. 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:
Period Ratio
Restatement Effective Date through and
including December 31, 2002 3.50 to 1.00
January 1, 2003 through and including
December 31, 2003 3.25 to 1.00
January 1, 2004 and thereafter 3.00 to 1.00
7.2.11 Minimum Fixed Charge Coverage Ratio.
The Borrower shall not permit the Fixed Charge Coverage Ratio, to be less
than the ratio set forth below for the periods specified below:
Period Ratio
Restatement Effective Date through and
including December 31, 2002 2.75 to 1.00
January 1, 2003 through and including
December 31, 2003 3.25 to 1.00
January 1, 2004 and thereafter 4.00 to 1.00
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.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
enter into or be bound by any agreement which prohibits or restricts, in any
manner, the payment of dividends (whether in cash, securities, property or
otherwise), other than restrictions applicable to the Arch Western Group set
forth in the Arch Western Credit Facility, other than restrictions applicable to
Arch Western set forth in the Arch Western LLC Agreement and other than
restrictions applicable to Canyon Fuel set forth in the Canyon Fuel LLC
Agreement.
7.2.14 Loans and Investments.
The Borrower shall not, and shall not permit any of its Subsidiaries to, at
any time make or suffer to remain outstanding any loan or advance to, or
purchase, acquire or own any stock, bonds (other than, in the ordinary course of
business, royalty bonds or bonds securing performance by the Borrower or a
Subsidiary of the Borrower under bonus bids), notes or securities of, or any
partnership interest (whether general or limited) or limited liability company
interest in, or any other Investment or interest in, or make any capital
contribution to, any other Person (an "investment"), or agree, become or remain
liable to do any of the foregoing, except:
(i) trade credit extended on usual and customary terms in the ordinary
course of business;
(ii) investments by the Borrower in its Subsidiaries which are members of
the Arch Coal Group;
(iii) Permitted Investments;
(iv) investments in Permitted Joint Ventures in accordance with Section
7.2.6 [Subsidiaries, Partnerships and Joint Ventures]; (v) investments by the
Borrower in, or reimbursement obligations by the Borrower to an Issuing Bank
with respect to any Letter of Credit issued for the direct or indirect benefit
of, Arch Western (collectively the "Permitted Investments in Arch Western");
provided, however, that the Borrower shall not make any Permitted Investment in
Arch Western if at the time such investment is proposed to be made and after
giving effect thereto (x) the aggregate amount of the Permitted Investments in
Arch Western would exceed $100,000,000 and (y) the Leverage Ratio would be
greater than 3.00 to 1.00;
(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; and
(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.
7.2.15 No Amendments to Acquisition Documents.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
enter into any amendment or modification to or waiver or consent under (or
solicit any such amendment, modification, waiver or consent) any of the
Acquisition Documents or the Coastal Agreement which could reasonably be
expected to be material and adverse to the Banks without the prior written
consent of the Agents.
7.2.16 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,
financial statements of the Borrower and its Subsidiaries, consisting of a
consolidated and consolidating balance sheet as of the end of such fiscal
quarter, related consolidated and consolidating statements of income and
stockholders' equity and related consolidated statement of cash flows for the
fiscal quarter then ended and the fiscal year through that date, all in
reasonable detail and certified (subject to normal year-end audit adjustments)
by the Chief Executive Officer, President or Chief Financial Officer of the
Borrower as having been prepared in accordance with GAAP, consistently applied,
and setting forth in comparative form the respective financial statements for
the corresponding date and period in the previous fiscal year. The Borrower will
be deemed to have complied with the delivery requirements with respect to the
consolidated financial statements required to be delivered under this Section
7.3.1 if within forty-five (45) days after the end of its fiscal quarter, the
Borrower delivers to the Administrative 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, financial statements of the Borrower and
its Subsidiaries consisting of a consolidated and consolidating balance sheet as
of the end of such fiscal year, related consolidated and consolidating
statements of income and stockholders' equity and related consolidated statement
of cash flows for the fiscal year then ended, all in reasonable detail and
setting forth in comparative form the financial statements as of the end of and
for the preceding fiscal year, and certified, in the case of the consolidated
financial statements, by independent certified public accountants of nationally
recognized standing satisfactory to the Administrative Agent. The certificate or
report of accountants shall be free of qualifications (other than any
consistency qualification that may result from a change in the method used to
prepare the financial statements as to which such accountants concur) and shall
not indicate the occurrence or existence of any event, condition or contingency
which would materially impair the prospect of payment or performance of any
covenant, agreement or duty of any Loan Party under any of the Loan Documents.
The Borrower will be deemed to have complied with the delivery requirements with
respect to the consolidated financial statements required to be delivered under
this Section 7.3.2 if within ninety (90) days after the end of its fiscal year,
the Borrower delivers to the Administrative Agent and each of the Banks a copy
of the Borrower's Annual Report and Form 10-K as filed with the SEC and the
financial statements and certification of public accountants contained therein
meet the requirements described in this Section.
7.3.3 Certificate of the Borrower.
Concurrently with the financial statements of the Borrower furnished to the
Administrative Agent and to the Banks pursuant to Sections 7.3.1 [Quarterly
Financial Statements] and 7.3.2 [Annual Financial Statements], a certificate of
the Borrower signed by the Chief Executive Officer, President or Chief Financial
Officer of the Borrower, in the form of Exhibit 7.3.3, to the effect that,
except as described pursuant to Section 7.3.4 [Notice of Default], (i) the
representations and warranties of the Borrower contained in Section 5 and in the
other Loan Documents are true on and as of the date of such certificate with the
same effect as though such representations and warranties had been made on and
as of such date (except representations and warranties which expressly relate
solely to an earlier date or time which shall be true and correct on and as of
the specific dates or times referred to therein) and the Loan Parties have
performed and complied with all covenants and conditions hereof, (ii) no Event
of Default or Potential Default exists and is continuing on the date of such
certificate, (iii) containing a list of each Significant Subsidiary, each
Inactive Subsidiary, and each Special Subsidiary, other than those set forth on
Schedule 5.1.2, and (iv) containing calculations in sufficient detail to
demonstrate compliance as of the date of such financial statements with all
financial covenants contained in Section 7.2 [Negative Covenants].
7.3.4 Notice of Default.
Promptly after any officer of the Borrower has learned of the occurrence of
an Event of Default or Potential Default, a certificate signed by the Chief
Executive Officer, President or Chief Financial Officer of the Borrower setting
forth the details of such Event of Default or Potential Default and the action
which the Borrower proposes to take with respect thereto.
7.3.5 Notice of Litigation.
Promptly after the commencement thereof or promptly after the determination
thereof, notice of all actions, suits, proceedings or investigations before or
by any Official Body or any other Person against any Loan Party or any
Subsidiary of any Loan Party, which (x) involve or could be reasonably expected
to involve assessments against any Loan Party or any Subsidiary of any Loan
Party in excess of $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,
(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.
Promptly following request therefor, such other information as any Agent or
Lender may reasonably request, including, without limitation, forecasts and
projections.
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];
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 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 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
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 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 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 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 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, and (iv) in any workout or
restructuring or in connection with the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings, and (b) all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent or any Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Administrative Agent or any Agent hereunder
or thereunder, provided that the Borrower shall not be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements if the same results from the
Administrative Agent's or any Agent's gross negligence or willful misconduct, or
if the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that the Borrower
shall remain liable to the extent such failure to give notice does not result in
a loss to the Borrower), or if the same results from a compromise or settlement
agreement entered into without the consent of the Borrower, which shall not be
unreasonably withheld.
9.6 Exculpatory Provisions; Limitation of Liability.
Neither the Administrative Agent, any Agent nor any of their respective
directors, officers, employees, agents, attorneys or Affiliates shall (a) be
liable to any Lender for any action taken or omitted to be taken by it or them
hereunder, or in connection herewith including pursuant to any Loan Document,
unless caused by its or their own gross negligence or willful misconduct, (b) be
responsible in any manner to any of the Lenders for the effectiveness,
enforceability, genuineness, validity or the due execution of this Agreement or
any other Loan Documents or for any recital, representation, warranty, document,
certificate, report or statement herein or made or furnished under or in
connection with this Agreement or any other Loan Documents, or (c) be under any
obligation to any of the Lenders to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions hereof or
thereof on 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 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 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 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.
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 or any
Guarantor from a Guaranty Agreement, in either case, in connection with any
sale, transfer, lease, disposition, merger or other transaction permitted by
this Agreement, or (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.
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 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 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 outside counsel) for
each Lender (except with respect to (A) and (B) below), incurred by such Lender
(a) in connection with the administration and interpretation of this Agreement,
and other instruments and documents to be delivered hereunder, (b) relating to
any amendments, waivers or consents pursuant to the provisions hereof, (c) in
connection with the enforcement of this Agreement or any other Loan Document, or
collection of amounts due hereunder or thereunder or the proof and allowability
of any claim arising under this Agreement or any other Loan Document, whether in
bankruptcy or receivership proceedings or otherwise, and (d) in any workout or
restructuring or in connection with the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings, or (ii) all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against such Lender, in its capacity as such, in any way relating to or arising
out of this Agreement or any other Loan Documents or any action taken or omitted
by such Lender hereunder or thereunder, provided that the Borrower shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (A) if
the same results from such Lender's gross negligence or willful misconduct, 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 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.
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 and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto and thereto relating to the transactions provided for herein and therein,
including any prior confidentiality agreements and commitments.
10.10 Duration; Survival.
All representations and warranties of the Borrower contained herein or made
by any Loan Party in connection herewith shall survive the making of Loans and
issuance of Letters of Credit and shall not be waived by the execution and
delivery of this Agreement, any investigation by the Administrative Agent, any
Agent or the Lenders, the making of Loans, issuance of Letters of Credit, or
payment in full of the Loans. All covenants and agreements of the Borrower
contained in Sections 7.1 [Affirmative Covenants], 7.2 [Negative Covenants] and
7.3 [Reporting Requirements] herein shall continue in full force and effect from
and after the date hereof so long as the Borrower may borrow or request Letters
of Credit hereunder and until termination of the Commitments and payment in full
of the Loans and expiration or termination of all Letters of Credit. All
covenants and agreements of the Borrower contained herein relating to the
payment of principal, interest, premiums, additional compensation or expenses
and indemnification, including those set forth in Section 4 [Payments] and
Sections 9.5 [Reimbursement and Indemnification of Agents by the Borrower], 9.7
[Reimbursement and Indemnification of Agents by Lenders] and 10.3 [Reimbursement
and Indemnification of Lenders by the Borrower, etc.], shall survive payment in
full of the Loans, expiration or termination of the Letters of Credit and
termination of the Commitments.
10.11 Successors and Assigns.
10.11.1 Binding Effect; Assignments by Borrower.
This Agreement shall be binding upon and shall inure to the benefit of the
Lenders, the Agents, the Administrative Agent, the Issuing Banks, the Borrower
and their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights and Obligations hereunder or any interest
herein without the 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 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 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 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.
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 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.
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.
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
THE BORROWER HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION
OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY AND THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO THE BORROWER AT THE ADDRESS
PROVIDED FOR IN SECTION 10.6 AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON ACTUAL RECEIPT THEREOF. THE BORROWER WAIVES ANY OBJECTION TO JURISDICTION
AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN AND AGREES NOT
TO ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE. THE BORROWER, THE
AGENTS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR
RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE COLLATERAL TO THE FULL
EXTENT PERMITTED BY LAW.
10.17 Tax Withholding.
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 ss.1.1441-1(c)(16) of the Income Tax Regulations
("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 ss. 1.1441-1(c)(3) of the Regulations; a
statement described in ss.1.871-14(c)(2)(v) of the Regulations; or, any other
certificates under the Internal Revenue Code or 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 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
ss.1.1441-7(b) of the Regulations. The Administrative Agent shall be indemnified
under ss.1.1461-1(e) of the 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 ss.1441 of the
Internal Revenue Code.
10.18 Joinder of Guarantors.
Any Significant Subsidiary of the Borrower which is required to become a
Guarantor pursuant to Section 7.2.6. [Subsidiaries, Partnerships and Joint
Ventures] shall execute and deliver to the Administrative Agent (i) a Guarantor
Joinder in substantially the form attached hereto as Exhibit 1.1(G)(1) pursuant
to which it shall join as a Guarantor each of the documents to which the
Guarantors are parties; (ii) all of the other Loan Documents required by Section
7.2.6, and (iii) documents in the forms described in Section 6.1 [First Loans
and Letters of Credit] modified as appropriate to relate to such Subsidiary.
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 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).
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
ATTEST: ARCH COAL, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary Title: Senior Vice President and
Chief Financial Officer
[Seal]
PNC BANK, NATIONAL ASSOCIATION
individually and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, individually and
as Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
CITIBANK, N.A., individually and as
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
CREDIT LYONNAIS NEW YORK BRANCH,
individually and as Documentation
Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Senior Vice President
U.S. BANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
BANK LEUMI USA
By: /s/ ▇▇▇▇▇ ▇▇▇ Hong
▇▇▇▇▇ ▇▇▇ Hong
Vice President
BNP PARIBAS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Director
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Vice President
CREDIT INDUSTRIEL ET COMMERCIAL
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Vice President
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Vice President
FLEET NATIONAL BANK
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Vice President
MIZUHO CORPORATE BANK LIMITED
By: /s/ Nobuyasu Fukatsu
Nobuyasu Fukatsu
Senior Vice President
THE BANK OF NEW YORK
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Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
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Managing Director