Exhbit 4.8
$675,000,000 TERM LOAN FACILITIES
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
ARCH WESTERN RESOURCES, LLC
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
================================================================================
J.P. MORGAN SECURITIES INC.
and
PNC CAPITAL MARKETS, INC.,
as Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Section Page
1. CERTAIN DEFINITIONS......................................................................................1
1.1 Certain Definitions.............................................................................1
1.2 Construction...................................................................................24
1.2.1 Number; Inclusion.....................................................................24
1.2.2 Determination.........................................................................24
1.2.3 Administrative Agent's Discretion and Consent.........................................24
1.2.4 Documents Taken as a Whole............................................................24
1.2.5 Headings..............................................................................24
1.2.6 Implied References to This Agreement..................................................25
1.2.7 Persons...............................................................................25
1.2.8 Modifications to Documents............................................................25
1.2.9 From, To and Through..................................................................25
1.2.10 Shall; Will...........................................................................25
1.3 Accounting Principles..........................................................................25
2. TERM LOAN FACILITY......................................................................................26
2.1 Commitments....................................................................................26
2.1.1 Tranche A Commitment..................................................................26
2.1.2 Tranche B Commitment..................................................................26
2.2 Nature of Lenders' Obligations with Respect to Term Loans......................................26
2.3 Noteless Agreement; Evidence of Indebtedness...................................................27
2.4 Use of Proceeds................................................................................27
2.5 Request to Select Interest Rate Options........................................................27
2.6 Required Payments..............................................................................28
3. INTEREST RATES..........................................................................................28
3.1 Interest Rate Options..........................................................................28
3.1.1 Interest Rate Options.................................................................29
3.1.2 Rate Quotations.......................................................................29
3.2 Interest Periods...............................................................................29
3.2.1 Ending Date and Business Day..........................................................29
3.2.2 Amount of Borrowing Tranche...........................................................30
3.2.3 Termination Before Expiration Date....................................................30
3.2.4 Renewals..............................................................................30
3.3 Interest After Default.........................................................................30
3.3.1 Interest Rate.........................................................................30
3.3.2 Other Obligations.....................................................................30
3.3.3 Acknowledgment........................................................................30
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.................31
3.4.1 Unascertainable.......................................................................31
3.4.2 Illegality; Increased Costs; Deposits Not Available...................................31
3.4.3 Administrative Agent's and Lender's Rights............................................31
3.5 Selection of Interest Rate Options.............................................................32
4. PAYMENTS................................................................................................32
4.1 Payments.......................................................................................32
4.2 Pro Rata Treatment of Lenders..................................................................33
4.3 Interest Payment Dates.........................................................................33
4.4 Prepayments....................................................................................34
4.4.1 Voluntary Prepayments.................................................................34
4.4.2 Replacement of a Lender...............................................................35
4.4.3 Change of Lending Office..............................................................36
4.5 Additional Compensation in Certain Circumstances...............................................36
4.5.1 Increased Costs or Reduced Return Resulting From Taxes, Reserves, Capital
Adequacy Requirements, Expenses, Etc..................................................36
4.5.2 Indemnity.............................................................................37
4.6 [Intentionally Omitted]........................................................................38
4.7 Taxes..........................................................................................38
4.7.1 No Deductions.........................................................................38
4.7.2 Stamp Taxes...........................................................................38
4.7.3 Indemnification for Taxes Paid by Lenders.............................................38
4.7.4 Certificate...........................................................................39
4.7.5 Survival..............................................................................39
4.7.6 Refund and Contest....................................................................39
5. REPRESENTATIONS AND WARRANTIES..........................................................................39
5.1 Representations and Warranties.................................................................39
5.1.1 Organization and Qualification........................................................39
5.1.2 LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares........................40
5.1.3 Power and Authority...................................................................40
5.1.4 Validity and Binding Effect...........................................................40
5.1.5 No Conflict...........................................................................41
5.1.6 Litigation............................................................................41
5.1.7 Financial Statements..................................................................41
5.1.8 Use of Proceeds; Margin Stock.........................................................42
5.1.9 Full Disclosure.......................................................................43
5.1.10 Taxes.................................................................................43
5.1.11 Consents and Approvals................................................................43
5.1.12 No Event of Default; Compliance With Instruments and Material Contracts...............43
5.1.13 Insurance.............................................................................44
5.1.14 Compliance With Laws..................................................................44
5.1.15 Investment Companies; Regulated Entities..............................................44
5.1.16 Plans and Benefit Arrangements........................................................44
5.1.17 Employment Matters....................................................................45
5.1.18 Environmental Matters.................................................................45
5.1.19 Senior Debt Status....................................................................46
5.1.20 Title to Properties...................................................................46
5.1.21 Security Interests....................................................................46
5.1.22 Status of the Pledged Collateral......................................................47
5.1.23 Coastal Agreement.....................................................................47
5.1.24 Solvency..............................................................................47
5.2 Continuation of Representations................................................................47
6. CONDITIONS OF LENDING...................................................................................48
6.1 Conditions to Amendment and Restatement of the Credit Agreement................................48
6.1.1 Officer's Certificate.................................................................48
6.1.2 Secretary's Certificate...............................................................48
6.1.3 Delivery of Loan Documents; Filing Receipts...........................................49
6.1.4 Opinion of Counsel....................................................................49
6.1.5 Legal Details.........................................................................49
6.1.6 Payment of Fees.......................................................................49
6.1.7 Consents..............................................................................50
6.1.8 Officer's Certificate Regarding No Material Adverse Change............................50
6.1.9 No Violation of Laws..................................................................50
6.1.10 No Actions or Proceedings.............................................................50
6.1.11 Insurance.............................................................................50
6.1.12 Report of Independent Engineer........................................................50
6.1.13 Credit Facility for the Parent........................................................51
6.1.14 Satisfactory Environmental Review.....................................................51
6.1.15 Refinancing...........................................................................51
7. COVENANTS...............................................................................................51
7.1 Affirmative Covenants..........................................................................51
7.1.1 Preservation of Existence, Etc........................................................51
7.1.2 Payment of Liabilities, Including Taxes, Etc..........................................52
7.1.3 Maintenance of Insurance..............................................................52
7.1.4 Maintenance of Properties and Leases..................................................52
7.1.5 Visitation Rights.....................................................................52
7.1.6 Keeping of Records and Books of Account...............................................53
7.1.7 Plans and Benefit Arrangements........................................................53
7.1.8 Compliance With Laws..................................................................53
7.1.9 Use of Proceeds.......................................................................53
7.1.10 Operation of Mines....................................................................54
7.1.11 Maintenance of Material Contracts.....................................................54
7.1.12 Further Assurances....................................................................54
7.1.13 Subordination of Intercompany Loans...................................................54
7.1.14 Pledged Collateral Account............................................................54
7.2 Negative Covenants.............................................................................55
7.2.1 Indebtedness..........................................................................55
7.2.2 Liens.................................................................................56
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions...................................56
7.2.4 Dispositions of Assets or Subsidiaries................................................57
7.2.5 Affiliate Transactions................................................................58
7.2.6 Subsidiaries, Partnerships and Joint Ventures.........................................58
7.2.7 Continuation of or Change in Business.................................................58
7.2.8 Plans and Benefit Arrangements........................................................58
7.2.9 No Restriction on Dividends...........................................................59
7.2.10 Maximum Leverage Ratio................................................................59
7.2.11 Minimum Fixed Charge Coverage Ratio...................................................59
7.2.12 Minimum EBITDDA.......................................................................59
7.2.13 Minimum Net Worth.....................................................................60
7.2.14 Loans and Investments.................................................................60
7.2.15 No Amendments to Acquisition Documents................................................61
7.2.16 Limitation on Capital Expenditures....................................................61
7.3 Reporting Requirements.........................................................................61
7.3.1 Quarterly Financial Statements........................................................61
7.3.2 Annual Financial Statements...........................................................62
7.3.3 Certificate of the Borrower...........................................................62
7.3.4 Notice of Default.....................................................................63
7.3.5 Notice of Litigation..................................................................63
7.3.6 Notice of Change in Debt Rating.......................................................63
7.3.7 Notices Regarding Plans and Benefit Arrangements......................................63
7.3.8 Certain Events........................................................................63
7.3.9 Notices of Involuntary Termination and Annual Reports.................................64
7.3.10 Notice of Voluntary Termination.......................................................64
7.3.11 Other Information.....................................................................65
7.3.12 Annual Reserves Verification..........................................................65
8. DEFAULT.................................................................................................65
8.1 Events of Default..............................................................................65
8.1.1 Payments Under Loan Documents.........................................................65
8.1.2 Breach of Warranty....................................................................65
8.1.3 Breach of Negative Covenants or Visitation Rights.....................................65
8.1.4 Breach of Other Covenants.............................................................66
8.1.5 Defaults in Other Agreements or Indebtedness..........................................66
8.1.6 Judgments or Orders...................................................................66
8.1.7 Loan Document Unenforceable...........................................................67
8.1.8 Proceedings Against Assets............................................................67
8.1.9 Notice of Lien or Assessment..........................................................67
8.1.10 Insolvency............................................................................67
8.1.11 Events Relating to Plans and Benefit Arrangements.....................................67
8.1.12 Cessation of Business.................................................................68
8.1.13 Change of Control.....................................................................68
8.1.14 Involuntary Proceedings...............................................................68
8.1.15 Voluntary Proceedings.................................................................69
8.2 Consequences of Event of Default...............................................................69
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization
Proceedings...........................................................................69
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings..................................69
8.2.3 Set-off...............................................................................70
8.2.4 Suits, Actions, Proceedings...........................................................70
8.2.5 Application of Proceeds...............................................................70
8.2.6 Other Rights and Remedies.............................................................71
8.2.7 Notice of Sale........................................................................71
9. THE AGENTS..............................................................................................71
9.1 Appointment....................................................................................71
9.2 Delegation of Duties...........................................................................72
9.3 Nature of Duties; Independent Credit Investigation.............................................72
9.4 Actions in Discretion of Agents; Instructions From the Lenders.................................73
9.5 Reimbursement and Indemnification of Agents by the Borrower....................................73
9.6 Exculpatory Provisions; Limitation of Liability................................................74
9.7 Reimbursement and Indemnification of Agents by the Lenders.....................................74
9.8 Reliance by Agents.............................................................................75
9.9 Notice of Default..............................................................................75
9.10 Notices........................................................................................75
9.11 Lenders in Their Individual Capacities.........................................................76
9.12 Holders of Term Notes..........................................................................76
9.13 Equalization of Lenders........................................................................76
9.14 Successor Agents...............................................................................77
9.15 Administrative Agent's Fee.....................................................................78
9.16 Availability of Funds..........................................................................78
9.17 Calculations...................................................................................78
9.18 Certain Releases of Guarantors and Collateral..................................................78
9.19 Beneficiaries..................................................................................79
10. MISCELLANEOUS...........................................................................................79
10.1 Modifications, Amendments or Waivers...........................................................79
10.1.1 Increase of Commitments; Extension of Expiration Date.................................79
10.1.2 Extension of Payment; Reduction of Principal, Interest or Fees; Modification
of Terms of Payment...................................................................79
10.1.3 Release of Collateral or Guarantor....................................................80
10.1.4 Miscellaneous.........................................................................80
10.2 No Implied Waivers; Cumulative Remedies; Writing Required......................................80
10.3 Reimbursement and Indemnification of Lenders by the Borrower; Taxes. Limitations..............80
10.4 Holidays.......................................................................................81
10.5 Funding by Branch, Subsidiary or Affiliate.....................................................82
10.5.1 Notional Funding......................................................................82
10.5.2 Actual Funding........................................................................82
10.6 Notices........................................................................................82
10.7 Severability...................................................................................83
10.8 Governing Law..................................................................................83
10.9 Prior Understanding............................................................................83
10.10 Duration; Survival.............................................................................83
10.11 Successors and Assigns.........................................................................84
10.11.1 Binding Effect; Assignments by Borrower...............................................84
10.11.2 Assignments and Participations by Lenders; Designations...............................84
10.11.3 Non-U.S. Assignees and Participants...................................................86
10.11.4 Assignments by Lenders to Federal Reserve Banks.......................................87
10.12 Confidentiality................................................................................87
10.12.1 General...............................................................................87
10.12.2 Sharing Information With Affiliates of the Lenders....................................88
10.13 Counterparts...................................................................................88
10.14 Agent's or Lender's Consent....................................................................88
10.15 Exceptions.....................................................................................88
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.........................................................88
10.17 Tax Withholding................................................................................89
10.18 Joinder of Guarantors..........................................................................90
10.19 Register.......................................................................................90
10.20 Amendment and Restatement......................................................................91
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A) - PRICING GRID
SCHEDULE 1.1(B) - COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
SCHEDULE 5.1.2 - CERTAIN INFORMATION REGARDING CAPITALIZATION OF BORROWER AND ITS
SUBSIDIARIES
SCHEDULE 5.1.11 - CONSENTS AND APPROVALS
SCHEDULE 5.1.18 CERTAIN DISCLOSURES REGARDING ENVIRONMENTAL MATTERS
SCHEDULE 5.1.22 - PARTNERSHIP AGREEMENTS; LLC AGREEMENTS
SCHEDULE 7.2.6 - CERTAIN MATTERS REGARDING SUBSIDIARIES, PARTNERSHIPS AND JOINT VENTURES
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(C) - AMENDED AND RESTATED COLLATERAL AGENCY AND SHARING AGREEMENT
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER AND ASSUMPTION
EXHIBIT 1.1(G)(2) - AMENDED AND RESTATED CONTINUING GUARANTY AND SURETYSHIP AGREEMENT
EXHIBIT 1.1(I) INTERCOMPANY SUBORDINATION AGREEMENT
EXHIBIT 1.1(N) - AMENDED AND RESTATED NOTE PLEDGE AGREEMENT
EXHIBIT 1.1(P)(1) - AMENDED AND RESTATED PLEDGE AGREEMENT (INVESTMENT PROPERTY)
EXHIBIT 1.1(P)(2) - PLEDGE AGREEMENT (PLEDGED COLLATERAL ACCOUNT)
EXHIBIT 1.1(P)(3) - AMENDED AND RESTATED PLEDGE AGREEMENT (SUBSIDIARY EQUITY INTERESTS)
EXHIBIT 1.1(T)(1) - TRANCHE A TERM NOTE
EXHIBIT 1.1(T)(2) - TRANCHE B TERM NOTE
EXHIBIT 2.5 - RATE REQUEST
EXHIBIT 6.1.4 - OPINION OF COUNSEL
EXHIBIT 6.1.15 - 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 WESTERN RESOURCES, LLC, a Delaware limited
liability company (the "Borrower"), the LENDERS (as hereinafter defined),
JPMORGAN CHASE BANK, in its capacity as syndication agent, CITIBANK, N.A.,
CREDIT LYONNAIS NEW YORK BRANCH, and 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 Lenders under this Agreement.
WITNESSETH:
WHEREAS, the Borrower, JPMorgan Chase Bank (successor in such capacity to
Morgan Guaranty Trust Company of New York, as syndication agent), PNC Bank,
National Association, as administrative agent, and certain lenders are parties
to that Credit Agreement dated as of June 1, 1998 (the "Original Credit
Agreement"), providing for a $675,000,000 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 for the convenience of such parties
restated in its entirety as set forth below, to provide that the term loan under
the Original Credit Agreement shall be continued in like amount and amended to
consist of Tranche A Term Loans and Tranche B Term Loans (hereinafter defined);
and
WHEREAS, the pledge of equity interests of certain Subsidiaries of the
Borrower and guaranties for the term loan facility under the Original Credit
Agreement shall continue to secure such Tranche A Term Loans and Tranche B Term
Loans and all other obligations hereunder.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing and
the mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
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 Documents shall mean collectively the Purchase Agreement, the
Contribution Agreement, the Tax Sharing Agreement, and the LLC Agreements, as
limited by their schedules and exhibits, as the same may be amended, restated,
modified or supplemented from time to time after the Closing Date as permitted
by Section 7.2.15 [No Amendments to Acquisition Documents].
Acquisition Transactions shall mean the transactions contemplated by the
Purchase Agreement and the Contribution Agreement, as such documents may be
amended, modified or supplemented after the Closing Date as permitted by Section
7.2.15 [No Amendments to Acquisition Documents].
Adjusted EBITDDA for any period of determination shall mean with respect to
any Person the sum of income from operations and interest income all before the
effect of changes in accounting principles, nonrecurring charges and
extraordinary items, interest expense, income taxes, depreciation, depletion and
amortization, in each case for such period determined in accordance with GAAP.
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 Fee].
Administrative Agent's Letter shall have the meaning assigned to that term
in Section 9.15 [Administrative Agent's Fee].
Affiliate as to any Person shall mean any other Person (i) which directly
or indirectly controls, is controlled by, or is under common control with such
Person, (ii) which beneficially owns or holds 5% or more of any class of the
voting or other equity interests of such Person, or (iii) 5% or more of any
class of voting interests or other equity interests of which is beneficially
owned or held, directly or indirectly, by such Person. Control, as used in this
definition, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise, including
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be. Notwithstanding the foregoing, a Subsidiary of the
Borrower shall not be deemed an Affiliate of the Borrower.
Agents shall mean collectively the Administrative Agent 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
modified, amended, restated, supplemented, refinanced or replaced from time to
time in accordance herewith.
Appropriate Percentage shall mean, with respect to each Special Subsidiary,
the percentage of the equity of such Person owned by the Borrower or any
Subsidiary of the Borrower.
Approved Fund shall mean with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in commercial loans and is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
Arch Credit Facility shall mean that certain Credit Agreement by and among
Parent, PNC Bank as administrative agent, JPMorgan Chase Bank (successor to
Morgan Guaranty Trust Company of New York) as syndication agent and Wachovia
Corporation (as successor in such capacity to First Union National Bank) as
documentation agent, and the lenders party thereto dated as of June 1, 1998, as
amended by Amendment No. 1 thereto dated as of January 21, 2000, as amended and
restated as of the date hereof, providing for certain credit facilities to
Parent, as the same may hereafter be modified, amended, restated, supplemented,
refinanced or replaced from time to time in accordance therewith .
Arch of Wyoming LLC shall mean Arch of Wyoming, LLC, a limited liability
company organized and existing under the laws of the State of Delaware.
Arch of Wyoming LLC Agreement shall mean that certain Limited Liability
Agreement, dated as of April 15, 1998, of Arch of Wyoming LLC.
Arch Western LLC Agreement shall mean that certain Limited Liability
Company Agreement by and between AWAC and Delta Housing, dated as of June 1,
1998, with AWAC and Delta Housing as members and creating the Borrower.
ARCO shall mean Atlantic Richfield Company, a corporation organized and
existing under the laws of the State of Delaware.
ARCO Member shall have the meaning assigned to such term in the Arch
Western LLC Agreement.
Arrangers shall mean PNC Bank and Morgan.
Assigned Reserves shall mean Recoverable Reserves that have been designated
for mining by a specific operation of the Borrower or any of its Subsidiaries,
all as disclosed in the Parent's statements most recently filed with the SEC
identifying the Assigned Reserves.
Assignment and Assumption Agreement shall mean an Assignment and Assumption
Agreement by and among a Purchasing Lender, a Transferor Lender and the
Administrative Agent, as agent and on behalf of the remaining Lenders,
substantially in the form of Exhibit 1.1(A)(1).
AU Sub LLC Agreement shall mean that certain Limited Liability Company
Agreement, dated as of April 8, 1998, as amended, of AU Sub LLC, a limited
liability company organized and existing under the laws of the State of
Delaware.
Authorized Officer shall mean those individuals, designated by written
notice to the Administrative Agent from the Borrower, authorized to execute
notices, reports and other documents on behalf of the Loan Parties required
hereunder. The Borrower may amend such list of individuals from time to time by
giving written notice of such amendment to the Administrative Agent.
Average Balance of the Eligible Note Receivable shall mean, for any period
of determination, the average daily outstanding principal amount of the Eligible
Note Receivable during such period.
Average Pledged Account Balance shall mean, for any period of
determination, the average daily balance in the "Escrow Account" (as such term
is defined in the Pledge Agreement (Investment Property)) pledged on a first
priority perfected basis to the Administrative Agent for the benefit of the
Lenders pursuant to the Pledge Agreement (Investment Property) during such
period.
AWAC shall mean Arch Western Acquisition Corporation, a corporation
organized and existing under the laws of the State of Delaware.
Base Net Worth shall mean the sum of $389,194,000, 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, 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 Term Loans
bear interest at the rate and under the terms and conditions set forth in
Section 3.1.1(a) [Base Rate Option].
Benefit Arrangement shall mean at any time an "employee benefit plan,"
within the meaning of Section 3(3) of ERISA, which is neither a Plan nor a
Multiemployer Plan and which is maintained, sponsored or otherwise contributed
to by any member of the ERISA Group.
Borrower shall mean Arch Western Resources, LLC, a limited liability
company organized and existing under the laws of the State of Delaware.
Borrower LLC Interests shall have the meaning set forth in Section 5.1.2
[LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares].
Borrowing Date shall mean, with respect to any Term 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 outstanding Tranche A
Term Loans or Tranche B Term Loans as follows: (i) any Tranche A Term Loans to
which a Euro-Rate Option applies which become subject to the same Interest Rate
Option under the same Rate Request by the Borrower and which have the same
Interest Period shall constitute one Borrowing Tranche; (ii) any Tranche B Term
Loans to which a Euro-Rate Option applies which become subject to the same
Interest Rate Option under the same Rate Request by the Borrower and which have
the same Interest Period shall constitute one Borrowing Tranche; (iii) all
Tranche A Term Loans to which a Base Rate applies shall constitute one Borrowing
Tranche; and (iv) all Tranche B Term Loans to which a Base Rate applies shall
constitute one Borrowing Tranche.
Business shall mean the business of owning and operating the U.S. domestic
coal properties of ACC, substantially as operated by ACC at the time of the
closing of the Acquisition Transactions.
Business Day shall mean any day other than a Saturday or Sunday or a legal
holiday on which commercial banks are authorized or required to be closed for
business in Pittsburgh, Pennsylvania and New York, New York; and if the
applicable Business Day relates to a Term Loan to which the Euro-Rate Option
applies, such day must also be a day on which dealings are carried on in the
London interbank market.
Canyon Fuel shall mean Canyon Fuel Company, LLC, a limited liability
company organized and existing under the laws of the State of Delaware.
Canyon Fuel LLC Agreement shall mean that certain Limited Liability Company
agreement by and between the Borrower (or a Subsidiary of the Borrower) and
Itochu Coal International, Inc., a Delaware corporation, dated as of January 1,
1997, as amended, with the Borrower and Itochu Coal International, Inc. as
members of the Canyon Fuel Company, LLC, a Delaware limited liability company.
Carbon Basin Reserves shall mean those certain reserves controlled by
Borrower or any of its Subsidiaries located within the following townships and
ranges: T. 20 N., R. 79 W.; T 20 N., R. 80 W.; T 21 N., R. 79 W.; T. 21 N., R.
80 W., Carbon County, Wyoming containing approximately 186.7 million tons of
recoverable coal.
Citibank shall mean Citibank, N.A., its successors and assigns.
Closing Date shall mean June 1, 1998.
Coastal Agreement shall mean that certain Purchase and Sale Agreement among
The Coastal Corporation, a Delaware corporation, Coastal Coal, Inc., a Delaware
corporation, ARCO and Itochu Corporation, a Japanese corporation, dated as of
October 23, 1996.
Collateral shall mean collectively the property of the Borrower in which
security interests are or have been granted or purported to be granted to the
Administrative Agent for the benefit of the Lenders under the Collateral
Documents.
Collateral Documents shall mean collectively, the Pledge Agreement
(Subsidiary Equity Interests), the Pledge Agreement (Investment Property), the
Pledge Agreement (Pledged Collateral Account), the Collateral Sharing Agreement,
and the Note Pledge Agreement, and Collateral Document shall mean any of the
Collateral Documents.
Collateral Sharing Agreement shall mean the Amended and Restated Collateral
Agency and Sharing Agreement among the Borrower, the Guarantors, the Lenders
party thereto, the Swap Parties (as defined therein) and the Collateral Agent
(as defined therein), substantially in the form of Exhibit 1.1(C)(1) hereto, as
the same may hereafter be modified, amended, restated, supplemented, refinanced
or replaced from time to time in accordance herewith or therewith.
Commitment shall mean as to any Lender the aggregate of its Tranche A
Commitments and Tranche B Commitments and Commitments shall mean the aggregate
of the Tranche A Commitments and Tranche B Commitments of all of the Lenders.
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 equity less intangible assets of the Borrower and its Subsidiaries as of
such date determined and consolidated in accordance with GAAP, and adjusted to
exclude the after tax effect of any changes in accounting principles subsequent
to the 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 and the Parent.
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 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 (v) the amount of all indebtedness
(whether matured or unmatured, liquidated or unliquidated, direct or indirect,
absolute or contingent, or joint or several) in respect of all Guarantees of
indebtedness for borrowed money, minus (b) the sum of (1) the Permitted
Reduction Amount, if any, and (2) the principal amount, expressly excluding any
interest income earned thereon, held on deposit in the Pledged Collateral
Account, as of the date of determination.
Debt Rating shall mean the rating of the Parent's indebtedness under the
Arch Credit Facility by either of Standard & Poor's or Moody's.
Delta Housing shall mean Delta Housing Inc., a corporation organized and
existing under the laws of the State of Delaware.
Delta Housing Guaranty shall mean that certain Master Guaranty of
Collection dated as of June 1, 1998, executed by Delta Housing in favor of the
judgment creditors referred to therein.
Derivatives Obligations shall mean for any Person obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or 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, N.A., 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.
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, interest expense,
income taxes, depreciation, depletion and amortization, in each case for such
period determined in accordance with GAAP.
Eligible Note Receivable shall mean that certain note payable by the Parent
to the Borrower, satisfactory in form and substance to the Agents (including the
providing of and terms and conditions of all collateral and guarantees provided
as security therefor), and pledged, on a first priority perfected basis, to the
Administrative Agent for the benefit of the Lenders pursuant to the Note Pledge
Agreement, as such note may hereafter be modified, amended, restated,
supplemented, refinanced, replaced, extended or renewed from time to time with
the prior written consent of the Agents.
Eligible Reserves shall mean the sum of all Assigned Reserves plus 80% of
the Unassigned Reserves, minus (a) the sum of (i) the amount of divestitures of
Assigned Reserves and Unassigned Reserves by the Borrower or any of its
Subsidiaries since the date of the most recent statement filed by the Parent
with the SEC identifying the Assigned Reserves and the Unassigned Reserves, and
(ii) the amount of Assigned Reserves and Unassigned Reserves mined since the
date of the most recent statement filed by the Parent with the SEC identifying
the Assigned Reserves and the Unassigned Reserves, plus (b) the amount of any
acquisitions or leases of Assigned Reserves and Unassigned Reserves by the
Borrower or any of its Subsidiaries since the date of the most recent statement
filed by the Parent with the SEC identifying the Assigned Reserves and the
Unassigned Reserves, provided that, if Assigned Reserves or Unassigned Reserves
have been acquired or leased from an Affiliate, the terms and conditions of the
acquisition or lease shall be reasonably satisfactory to the Agents.
Environmental Claim shall mean any administrative, regulatory or judicial
action, suit, claim, notice of noncompliance or violation, notice of liability
or potential liability, proceeding, consent order or consent agreement relating
in any way to any Environmental Law, Environmental Permit, Regulated Substances
or Contamination or arising from alleged injury or threat of injury to the
environment.
Environmental Complaint shall mean any written notice or complaint 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 penalties, criminal penalties, or declaratory or equitable relief
arising under any Environmental Law or any order, notice of violation, citation,
subpoena, request for information or other written notice of any type issued by
an Official Body pursuant to any Environmental Law.
Environmental 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 U.S.C.ss. 9601 et seq., the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.ss. 6901 et seq., the
Hazardous Materials Transportation Act, 49 U.S.C.ss. 1801 et seq., the Toxic
Substances Control Act, 15 U.S.C. ss. 2601 et seq., the Federal Water Pollution
Control Act, 33 U.S.C.ss. 1251 et seq., the Federal Safe Drinking Water Act, 42
U.S.C.ss.ss. 300f-300j, the Federal Air Pollution Control Act, 42 U.S.C.ss. 7401
et seq., the Oil Pollution Act, 33 U.S.C.ss. 2701 et seq., the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.ss.ss. 136 to 136y, the
Occupational Safety and Health Act, 29 U.S.C.ss.ss. 651 et seq. the Mine Safety
and Health Act, 30 U.S.C. ss.ss. 801 et seq., the Surface Mining Control and
Reclamation Act 30 U.S.C.ss.ss. 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 Term Loans comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period,
the interest rate per annum determined by the 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
Jones Market Service display page 3750 or such other display page on the Dow
Jones 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 Jones 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 Lenders of the Euro-Rate as determined or
adjusted in accordance herewith, which determination shall be conclusive absent
manifest error.
Euro-Rate Option shall mean the option of the Borrower to have the Term
Loans bear interest at the rate and on the terms and conditions set forth in
Section 3.1.1(b) [Euro-Rate Option].
Euro-Rate Reserve Percentage shall mean the maximum percentage (expressed
as a decimal rounded upward to the nearest 1/100 of 1%) as determined by the
Administrative Agent which is in effect during any relevant period, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency
funding (currently referred to as "Eurocurrency Liabilities") of a member bank
in such System.
Event of Default shall mean any of the events described in Section 8.1
[Events of Default] and referred to therein as an "Event of Default."
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) [Financial Projections].
Fixed Charge Coverage Ratio shall mean the ratio of (a) the sum of Adjusted
EBITDDA of the Borrower and its Subsidiaries, plus, without duplication, the
Appropriate Percentage of each Special Subsidiary's Adjusted EBITDDA, each on a
consolidated basis in accordance with GAAP, plus operating lease expense of the
Borrower and its Subsidiaries, plus, 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, all calculated as of the last day of each fiscal quarter for the four
fiscal quarters of the Borrower then ended.
GAAP shall mean Generally Accepted Accounting Principles as are in effect
from time to time, subject to the provisions of Section 1.3 [Accounting
Principles], and applied on a consistent basis both as to classification of
items and amounts.
Guarantors shall mean at any time collectively each of the Significant
Subsidiaries of the Borrower, other than Canyon Fuel.
Guarantor Joinder shall mean a joinder by a Person as a Guarantor under the
Guarantor Joinder and Assumption Agreement in the form of Exhibit 1.1(G)(1).
Guaranty of any Person shall mean any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation of any other
Person in any manner, whether directly or indirectly, including any such
liability arising by virtue of partnership agreements, including any agreement
to indemnify or hold harmless any other Person, any performance bond or other
suretyship arrangement and any other form of assurance against loss, except
endorsement of negotiable or other instruments for deposit or collection in the
ordinary course of business.
Guaranty Agreement shall mean the Amended and Restated Continuing Guaranty
and Suretyship Agreement in substantially the form of Exhibit 1.1(G)(2) executed
and delivered by each of the Guarantors to the Administrative Agent for the
benefit of the Lenders, as the same may hereafter be modified, amended,
restated, supplemented, refinanced or replaced from time to time in accordance
herewith or therewith.
Historical Statements shall have the meaning assigned to that term in
Section 5.1.7(i) [Borrower Historical Statements].
Hypothetical Income Tax Amount shall have the meaning assigned to that term
in the Arch Western LLC Agreement.
Inactive Subsidiaries shall mean, at any time, collectively, the
Subsidiaries of the Borrower which: (i) do not actively conduct any business or
operations, and (ii) have total assets, in the case of any such Subsidiary, with
a book value, as of any date of determination, not in excess of $250,000.
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.
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.
Intercompany Subordination Agreement shall mean the Intercompany
Subordination Agreement substantially in the form of Exhibit 1.1(I) executed and
delivered by the Borrower and its Subsidiaries to the Administrative Agent for
the benefit of the Lenders, as the same may hereafter be modified, amended,
restated, supplemented, refinanced or replaced from time to time in accordance
herewith or therewith.
Interest Period shall have the meaning set forth in Section 3.2.
Interest Rate Option shall mean any Euro-Rate Option or Base Rate Option.
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.
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.
Lenders shall mean the financial institutions and other parties named on
Schedule 1.1(B) and their respective successors and assigns as permitted
hereunder, each of which is referred to herein as a Lender.
Leverage Ratio shall mean the ratio of the 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, the
Canyon Fuel LLC Agreement, the Mountain Coal LLC Agreement, the Arch of Wyoming
LLC Agreement, the AU Sub LLC Agreement, the State Leases LLC Agreement and the
Thunder Basin LLC Agreement.
LLC Interests shall have the meaning given to such term in Section 5.1.2
[LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares].
Loan Documents shall mean this Agreement, the Administrative Agent's
Letter, the Collateral Sharing Agreement, the Guaranty Agreement, the
Intercompany Subordination Agreement, the Pledge Agreement (Subsidiary Equity
Interests), the Pledge Agreement (Investment Property), the Pledge Agreement
(Pledged Collateral Account), the Note Pledge Agreement, the Term Notes and any
other instruments, certificates or documents delivered or contemplated to be
delivered hereunder or thereunder or in connection herewith or therewith, as the
same may hereafter be modified, amended, restated, supplemented, refinanced or
replaced from time to time in accordance herewith or therewith, and Loan
Document shall mean any of the Loan Documents.
Loan Parties shall mean the Borrower and the Guarantors.
Material Adverse Change shall mean any set of circumstances or events which
(a) has or could reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of this Agreement or any other
Loan Document, (b) is or could reasonably be expected to be materially adverse
to the business, financial condition or results of operations of the Borrower
and its Subsidiaries taken as a whole, or (c) impairs materially or could
reasonably be expected to impair materially the ability of any Agent or any of
the Lenders, to the extent permitted, to enforce their legal remedies pursuant
to this Agreement or any other Loan Document.
Material Contracts shall mean collectively all contracts, agreements or
other instruments described in Regulation S-K, Item 601(b)(10) promulgated
pursuant to the Securities Exchange Act of 1934, as amended, which the Parent is
required to file as an exhibit to any annual, quarterly or other report required
to be filed by the Parent under the Securities Exchange Act of 1934, as amended.
Month, with respect to an Interest Period under the Euro-Rate Option, shall
mean the interval between the days in consecutive calendar months numerically
corresponding to the first day of such Interest Period. If any Interest Period
for any Term Loan subject to a Euro-Rate Option begins on a day of a calendar
month for which there is no numerically corresponding day in the month in which
such Interest Period is to end, the final month of such Interest Period shall be
deemed to end on the last Business Day of such final month.
Moody's shall mean Moody's Investors Service, Inc., and its successors.
Morgan shall mean J.P. Morgan 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
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
(iii), 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.
Note Pledge Agreement shall mean the Amended and Restated Note Pledge
Agreement substantially in the form of Exhibit 1.1(N) executed and delivered by
the Borrower to the Administrative Agent for the benefit of the Lenders, as the
same may hereafter be modified, amended, restated, supplemented, refinanced or
replaced from time to time in accordance herewith or therewith.
notices shall have the meaning assigned to that term in Section 10.6
[Notices].
Obligation shall mean any obligation, Indebtedness or liability of any of
the Loan Parties to any Agent or any of the Lenders, howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, under or in connection with this
Agreement, any Term Notes, the Administrative Agent's Letter or any other Loan
Document.
Official Body shall mean any national, federal, state, local or other
government or political subdivision or any agency, authority, bureau, central
bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic,
including, without limitation, the National Association of Insurance
Commissioners or similar body.
Original Credit Agreement shall have the meaning assigned to such term in
the preamble hereto.
Parent shall mean Arch Coal, Inc., a corporation organized and existing
under the laws of the State of Delaware.
Partnership Interests shall have the meaning given to such term in Section
5.1.2 [LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares].
PBGC shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Acquisitions shall have the meaning assigned to such term in
Section 7.2.3 [Liquidations, Mergers, Consolidations, Acquisitions].
Permitted Investments shall mean
(i) direct obligations of the U.S. or any agency or instrumentality thereof
or obligations backed by the full faith and credit of the U.S. maturing in
twelve (12) months or less from the date of acquisition;
(ii) commercial paper maturing in 180 days or less rated in the highest
categories by Standard & Poor's or Moody's on the date of acquisition; and
(iii) demand deposits, time deposits or certificates of deposit maturing
within one year in a commercial bank whose obligations are rated A-1, A or the
equivalent or better by Standard & Poor's on the date of determination.
Permitted 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 securing Indebtedness of not more than $25,000,000 at any time;
(viii) The following, (A) if the validity or amount thereof is being
contested in good faith by appropriate and lawful proceedings diligently
conducted so long as levy and execution thereon have been stayed and continue to
be stayed or (B) if a final judgment is entered and such judgment is discharged
within thirty (30) days of entry, and they do not adversely affect the value of
the Collateral or the first priority perfected Lien and security interest of the
Administrative Agent for the benefit of the Lenders in the Collateral or, in the
aggregate, materially impair the ability of any Loan Party to perform its
Obligations hereunder or under the other Loan Documents:
(1) Claims or Liens for taxes, assessments or charges due and
payable and subject to interest or penalty, provided that the
applicable Loan Party maintains such reserves or other appropriate
provisions as shall be required by GAAP and pays all such taxes,
assessments or charges forthwith upon the commencement of proceedings
to foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of title to,
real or personal property other than the Collateral, including any
attachment of personal or real property or other legal process prior
to adjudication of a dispute on the merits;
(3) Claims or Liens of mechanics, materialmen, warehousemen,
carriers, or other statutory nonconsensual Liens; or
(4) Liens resulting from judgments or orders described in Section
8.1.6 [Judgments or Orders];
(ix) Liens granted in the Collateral under the Collateral Documents to the
Administrative Agent for the benefit of the Lenders;
(x) Liens in favor of Bank of Montreal granted in the Collateral, subject
to the Collateral Sharing Agreement, to secure Swap Obligations (as such term is
defined in the Collateral Sharing Agreement) of the Borrower under the
International Swap Dealers Association Master Agreement (including the schedule
thereto) dated as of August 6, 1998 between the Borrower and Bank of Montreal;
and
(xi) Any Lien or restriction resulting from ownership, by an entity other
than an Affiliate of the Borrower, of a minority interest in Canyon Fuel.
Permitted Loan Origination Expense shall mean the aggregate amount of all
fees and expenses incurred by the Borrower in connection with the closing on the
Closing Date of the transactions under the Original Credit Agreement and on the
Restatement Effective Date of the transactions under this Agreement which the
Borrower is required to capitalize in accordance with GAAP.
Permitted Reduction Amount shall mean the sum of:
(i) for any period of determination, if throughout such period either (i)
the Debt Rating is BB or better by Standard & Poor's and Ba2 or better by
Moody's, or (ii) the Leverage Ratio (as defined in the Arch Credit Facility) is
less than or equal to 3.5 to 1.0, the amount of the Average Balance of the
Eligible Note Receivable for such period; and
(ii) for any period of determination, the amount of the Average Pledged
Account Balance for such period.
The applicable period of determination for purposes of clauses (i) and (ii)
above shall be the period identical to the period for which EBITDDA is being
measured for purposes of calculating the Leverage Ratio.
Person shall mean any individual, corporation, partnership, limited
liability company, association, joint-stock company, trust, unincorporated
organization, joint venture, government or political subdivision or agency
thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan (including a
Multiple Employer Plan, but not a Multiemployer Plan) which is covered by Title
IV of ERISA or is subject to the minimum funding standards under Section 412 of
the Internal Revenue Code and either (i) is maintained by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at any
time within the preceding five years been maintained by any entity which was at
such time a member of the ERISA Group for employees of any entity which was at
such time a member of the ERISA Group.
Pledge Agreement (Investment Property) shall mean the Amended and Restated
Pledge Agreement (Investment Property) substantially in the form of Exhibit
1.1(P)(1) executed and delivered by the Borrower and each of its Subsidiaries to
the Administrative Agent for the benefit of the Lenders, as the same may
hereafter be modified, amended, restated, supplemented, refinanced or replaced
from time to time in accordance herewith or therewith.
Pledge Agreement (Pledged Collateral Account) shall mean the Pledge
Agreement (Pledged Collateral Account) substantially in the form of Exhibit
1.1(P)(2) executed and delivered by the Borrower to the Administrative Agent for
the benefit of the Lenders, as the same may hereafter be modified, amended,
restated, supplemented, refinanced or replaced from time to time in accordance
herewith or therewith.
Pledge Agreement (Subsidiary Equity Interests) shall mean the Pledge
Agreement (Subsidiary Equity Interests) substantially in the form of Exhibit
1.1(P)(3) executed and delivered by the Borrower and each of its Subsidiaries
pledging equity interests which it owns in any other Subsidiary of the Borrower
to the Administrative Agent for the benefit of the Lenders, as the same may
hereafter be modified, amended, restated, supplemented, refinanced or replaced
from time to time in accordance herewith or therewith.
Pledged Collateral Account shall have the meaning given to such term in
Section 7.1.14 [Pledged Collateral Account].
PNC Bank shall mean PNC Bank, National Association, its successors and
assigns.
Potential Default shall mean any event or condition which with notice,
passage of time or a determination by the Administrative Agent or the Required
Lenders, or any combination of the foregoing, would constitute an Event of
Default.
Principal Office shall mean the main banking office of the Administrative
Agent in Pittsburgh, Pennsylvania.
Prior Security Interest shall mean a valid and enforceable perfected
first-priority security interest under the Uniform Commercial Code or other
applicable Law in the Collateral.
Probable Reserves shall mean coal reserves for which (a) quantity and/or
quality are computed from information similar to that used for Proven Reserves,
but the sites for inspection, sampling, and measurement are farther apart or are
otherwise less adequately spaced, and (b) a degree of assurance, although lower
than that for proved reserves, is high enough to assume continuity between
points of observation.
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.
Proven Reserves shall mean coal reserves for which (a) quantity is computed
from dimensions revealed in outcrops, trenches, workings or drill holes; grade
and/or quality are computed from the results of detailed sampling and (b) the
sites for inspection, sampling, and measurement are spaced so closely and the
geologic character is so well defined that size, shape, depth, and mineral
content of coal reserves are well-established.
Purchase Agreement shall mean that certain Purchase and Sale Agreement
among ARCO, ARCO Uinta Coal Company, a Delaware corporation, the Parent and
AWAC, dated as of March 22, 1998, together with all schedules and exhibits
thereto.
Purchasing Lender shall mean a Lender which becomes a party to this
Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean, as the context requires: (a) in the case of
Commitments, the proportion that a Lender's Commitment bears to the Commitments
of all of the Lenders, (b) in the case of Term Loans, the proportion that a
Lender's Term Loans bears to the Term Loans of all Lenders, (c) in the case of
Tranche A Term Loans or Tranche A Commitments, the proportion that a Lender's
Tranche A Commitment bears to the Tranche A Commitments of all Lenders, and (d)
in the case of Tranche B Term Loans or Tranche B Commitments, the proportion
that a Lender's Tranche B Commitment bears to the Tranche B Commitments of all
Lenders.
Rate Request shall mean a request to select, convert to or renew a Base
Rate Option or Euro-Rate Option with respect to the Term Loans in accordance
with Section 2.5 [Request to Select Interest Rate Options].
Recoverable Reserves shall mean the amount of Proven Reserves and Probable
Reserves of the Borrower and its Subsidiaries that can actually be recovered
from the reserve base taking into account all mining and preparation losses
involved in producing a saleable product using existing methods and under
current law, provided that the amount of Recoverable Reserves held by Canyon
Fuel shall be included only to the extent of the Appropriate Percentage.
Register shall have the meaning set forth in Section 10.19 [Register]
hereof.
Regulated Substances shall mean, without limitation, any substance,
material or waste, regardless of its form or nature, defined under Environmental
Laws as a "hazardous substance," "pollutant," "pollution," "contaminant,"
"hazardous or toxic substance," "extremely hazardous substance," "toxic
chemical," "toxic substance," "toxic waste," "hazardous waste," "special
handling waste," "industrial waste," "residual waste," "solid waste," "municipal
waste," "mixed waste," "infectious waste," "chemotherapeutic waste," "medical
waste," or "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.
Regulation shall mean anything defined as a "release" under CERCLA or RCRA.
Reportable Event shall mean a reportable event described in Section 4043 of
ERISA and regulations thereunder with respect to a Plan or Multiemployer Plan.
Required Lenders shall mean
(i) if there are no Term Loans outstanding, Lenders whose Commitments
aggregate more than 50% of the Commitments of all of the Lenders, or
(ii) if there are Term Loans outstanding, Lenders whose outstanding Term
Loans aggregate more than 50% of the total principal amount of all of the Term
Loans then outstanding.
Restatement Effective Date shall mean April 18, 2002.
SEC shall mean the Securities and Exchange Commission or any governmental
agencies substituted therefor.
Significant Subsidiary shall mean any Subsidiary of Borrower other than the
Inactive Subsidiaries.
Solvent shall mean, with respect to any Person on a particular date, that
on such date (i) the fair value of the property of such Person is greater than
the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (iv) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (v) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed as the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
Special Subsidiary shall mean Canyon Fuel and each other Person (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]; (iii) with respect to
which the equity interests thereof were acquired by the Borrower or Subsidiary
of the Borrower in an arms-length transaction; (iv) the operations of which the
Borrower has management control over; and (v) a majority of the economic equity
interests of which are owned directly or indirectly by the Borrower.
Standard & Poor's shall mean Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc., and its successors.
Subsidiary of any Person at any time shall mean (i) any corporation or
trust of which more than 50% (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
Subsidiaries, (ii) any partnership of which such Person is a general partner or
of which more than 50% of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Person's Subsidiaries,
(iii) any limited liability company of which such Person is a member or of which
more than 50% of the limited liability company interests is at the time directly
or indirectly owned by such Person or one or more of such Person's Subsidiaries
or (iv) any corporation, trust, partnership, limited liability company or other
entity which is controlled or capable of being controlled by such Person or one
or more of such Person's Subsidiaries. As of the Closing Date, the Borrower owns
65% of the member interests of Canyon Fuel. It is expressly agreed that each
Special Subsidiary shall be deemed to be a Subsidiary of the Borrower for
purposes of this Agreement. Nonetheless, the Appropriate Percentage of the
assets, income, expenses, liabilities and other items with respect to each
Special Subsidiary shall be included, without duplication, for purposes of
calculating the Leverage Ratio and the Fixed Charge Coverage Ratio as described
more fully in the definitions of "Leverage Ratio" and "Fixed Charge Coverage
Ratio" and for purposes of calculating EBITDDA for purposes of Section 7.2.12
[Minimum EBITDDA].
State Leases LLC Agreement shall mean that certain Limited Liability
Company Agreement, dated as of April 8, 1998, as amended, of State Leases LLC, a
limited liability company organized and existing under the laws of the State of
Delaware.
Subsidiary Shares shall have the meaning assigned to that term in Section
5.1.2 [LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares].
Syndication Agent shall mean JPMorgan Chase in its capacity as syndication
agent for the Lenders under this Agreement and its successors in such capacity.
Tax Sharing Agreement shall mean that certain Tax Sharing Agreement dated
as June 1, 1998 by and among the Borrower, AWAC, the Parent and Delta Housing.
Term Loan shall mean separately any Tranche A Term Loan or Tranche B Term
Loan, and Term Loans shall mean collectively all of the Tranche A Term Loans and
Tranche B Term Loans.
Term Notes shall mean collectively all of the Tranche A Term Notes and
Tranche B Term Notes of the Borrower, and Term Note shall mean separately any of
the Term Notes.
Thunder Basin LLC Agreement shall mean that certain Limited Liability
Company Agreement, dated as of July 10, 1997, as amended, of Thunder Basin Coal
Company, L.L.C., a limited liability company organized and existing under the
laws of the State of Delaware.
Tranche A Commitment shall mean, as to any Lender at any time, the amount
initially set forth opposite its name on Schedule 1.1(B) in the column labeled
"Amount of Tranche A Commitment" and thereafter on Schedule 1.1(B) to the most
recent Assignment and Assumption Agreement, and Tranche A Commitments shall mean
the aggregate Tranche A Commitments of all the Lenders.
Tranche A Expiration Date shall mean April 18, 2007.
Tranche A Term Loan shall have the meaning given to such term in Section
2.1.1 [Tranche A Commitment]; Tranche A Term Loans shall mean collectively all
of the Tranche A Term Loans.
Tranche A Term Notes shall mean collectively all of the Tranche A Term
Notes of the Borrower in the form of Exhibit 1.1(T)(1) evidencing the Tranche A
Term Loans, as the same may hereafter be modified, amended, restated,
supplemented, refinanced, replaced, extended or renewed from time to time in
accordance herewith or therewith in whole or in part, and Tranche A Term Note
shall mean separately any of the Tranche A Term Notes.
Tranche B Commitment shall mean, as to any Lender at any time, the amount
initially set forth opposite its name on Schedule 1.1(B) in the column labeled
"Amount of Tranche B Commitment" and thereafter on Schedule 1.1(B) to the most
recent Assignment and Assumption Agreement, and Tranche B Commitments shall mean
the aggregate Tranche B Commitments of all the Lenders.
Tranche B Expiration Date shall mean April 18, 2008.
Tranche B Term Loan shall have the meaning given to such term in Section
2.1.2 [Tranche B Commitment]; Tranche B Term Loans shall mean collectively all
of the Tranche B Term Loans.
Tranche B Term Notes shall mean collectively all of the Tranche B Term
Notes of the Borrower in the form of Exhibit 1.1(T)(2) evidencing the Tranche B
Term Loans, as the same may hereafter be modified, amended, restated,
supplemented, refinanced, replaced, extended or renewed from time to time in
accordance herewith or therewith in whole or in part, and Tranche B Term Note
shall mean separately any of the Tranche B Term Notes.
Transferor Lender shall mean the selling Lender pursuant to an Assignment
and Assumption Agreement.
Unassigned Reserves shall mean all Recoverable Reserves that have not yet
been designated for mining by a specific operation of the Borrower or any of its
Subsidiaries, all as disclosed in the Parent's statements most recently filed
with the SEC identifying the Unassigned Reserves, excluding the Carbon Basin
Reserves.
Uniform Commercial Code shall have the meaning assigned to that term in
Section 5.1.21 [Security Interests].
U.S. shall mean the United States of America.
U.S. Bank shall mean U.S. Bank National Association, its successors and
assigns.
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) [Borrower 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. TERM LOAN FACILITY
2.1 Commitments.
The Term Loans under and as defined in the Original Credit Agreement shall
on the Restatement Effective Date be refinanced by the Tranche A Term Loans and
the Tranche B Term Loans hereunder as set forth below.
2.1.1 Tranche A Commitment.
Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, each Lender with a Tranche A
Commitment severally agrees to make a term loan (the "Tranche A Term Loan") to
the Borrower on the Restatement Effective Date in such principal amount as the
Borrower shall request up to, but not exceeding, such Lender's Tranche A
Commitment.
2.1.2 Tranche B Commitment.
Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, each Lender with a Tranche B
Commitment severally agrees to make a term loan (the "Tranche B Term Loan") to
the Borrower on the Restatement Effective Date in such principal amount as the
Borrower shall request up to, but not exceeding, such Lender's Tranche B
Commitment.
2.2 Nature of Lenders' Obligations with Respect to Term Loans.
The obligations of each Lender with a Tranche A Commitment to make a
Tranche A Term Loan to the Borrower shall be in the proportion that such
Lender's Tranche A Commitment bears to the Tranche A Commitments of all Lenders,
provided, however, that each Lender's Tranche A Term Loan to the Borrower shall
never exceed its Tranche A Commitment. The obligations of each Lender with a
Tranche B Commitment to make a Tranche B Term Loan to the Borrower shall be in
the proportion that such Lender's Tranche B Commitment bears to the Tranche B
Commitments of all Lenders, provided, however, that each Lender's Tranche B Term
Loan to the Borrower shall never exceed its Tranche B Commitment. The failure of
any Lender to make a Term Loan shall not relieve any other Lender of its
obligations to make a Term Loan nor shall it impose any additional liability on
any other Lender hereunder. The Lenders shall have no obligation to make Term
Loans hereunder after the Restatement Effective Date. The Commitments are not
revolving credit commitments, and the Borrower shall not have the right to
borrow, repay and reborrow the Term Loans. The Lenders shall have no obligation
hereunder to make Term Loans after the Restatement Effective Date.
2.3 Noteless Agreement; Evidence of Indebtedness.
Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the Obligation of the Borrower to such Lender resulting
from each Term Loan made by such Lender, including the amount of principal and
interest payable and paid to such Lender from time to time hereunder. The
Administrative Agent shall also maintain accounts in which it will record (a)
the amount of each Term Loan made hereunder, the Interest Rate Option applicable
thereto, and the Interest Period applicable thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, and (c) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof. The entries maintained in the accounts maintained pursuant to this
Section 2.3 shall be prima facie evidence of the existence and amounts of the
Obligation therein recorded; provided, however, that the failure of the
Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligation in accordance with its terms.
Any Lender may request that its Term Loans be evidenced by a promissory
note substantially in the form of Exhibit 1.1(T)(1) or Exhibit 1.1(T)(2), as
applicable. In such event, the Borrower shall execute and deliver to such
Lender, as applicable, a Tranche A Term Note or Tranche B Term Note, dated the
Restatement Effective Date, payable to the order of such Lender in a face amount
equal to the Tranche A Commitment or Tranche B Commitment, as the case may be,
of such Lender, and thereafter the Term Loans evidenced by each such Term Note
and interest thereon shall at all times (including after any assignment pursuant
to Section 10.11) be represented by one or more Term Notes payable to the order
of the payee named therein or any assignee pursuant to Section 10.11, except to
the extent that any such Lender or assignee subsequently returns any such Term
Note for cancellation and requests that such Term Loans once again be evidenced
as described in the immediately prior paragraph of this Section 2.3. The
principal amount of each Tranche A Term Note as provided therein shall be due
and payable on the Tranche A Expiration Date. The principal amount of each
Tranche B Term Note as provided therein shall be due and payable on the Tranche
B Expiration Date.
2.4 Use of Proceeds.
On and after the Restatement Effective Date, the proceeds of the Term Loans
shall be used to continue and refinance the term loan under the Original Credit
Agreement and in accordance with Section 7.1.9 [Use of Proceeds].
2.5 Request to Select Interest Rate Options.
Except as otherwise provided herein, the Borrower may on the Restatement
Effective Date select the initial Interest Rate Options applicable to the Term
Loans and thereafter from time to time prior to the Tranche A Expiration Date in
the case of the Tranche A Term Loans and the Tranche B Expiration Date in the
case of the Tranche B Term Loans request the Lenders to renew or convert the
Interest Rate Option applicable to existing Term Loans pursuant to Section 3.2
[Interest Periods], by delivering to the Administrative Agent, not later than
10:00 a.m., Pittsburgh time, (i) three (3) Business Days prior to the proposed
Borrowing Date with respect to the making of the Term Loans on the Restatement
Effective Date or the conversion to or the renewal of the Euro-Rate Option for
any Term Loans, and (ii) one (1) Business Day prior to the making of the Term
Loans on the Restatement Effective Date to which the Base Rate Option applies or
the last day of the preceding Interest Period with respect to the conversion to
the Base Rate Option for any Term Loan, of a duly completed request therefor
substantially in the form of Exhibit 2.5 (each a "Rate Request") or a request
therefor by telephone immediately confirmed in writing by letter, facsimile or
telex in the form of such Exhibit, it being understood that the Administrative
Agent may rely on the authority of any individual making such a telephonic
request without the necessity of receipt of such written confirmation. Each Rate
Request shall be irrevocable and shall specify (i) the proposed Borrowing Date;
(ii) the aggregate amount of the Tranche A Term Loans and Tranche B Term Loans
comprising each Borrowing Tranche, which shall be in integral multiples of
$25,000,000 and not less than $25,000,000 for each Borrowing Tranche to which
the Euro-Rate Option applies and in integral multiples of $500,000 and not less
than the lesser of $25,000,000 or the maximum amount available for Borrowing
Tranches to which the Base Rate Option applies; (iii) whether the Euro-Rate
Option or Base Rate Option shall apply to the applicable Borrowing Tranche; and
(iv) in the case of a Borrowing Tranche to which the Euro-Rate Option applies,
an appropriate Interest Period for the Term Loans comprising such Borrowing
Tranche. The Administrative Agent shall, promptly after receipt by it of a Rate
Request pursuant to Section 2.5 [Request to Select Interest Rate Options],
notify the Lenders of its receipt of such Rate Request and provide each Lender
with a copy thereof.
2.6 Required Payments.
The principal amount of the Tranche A Term Loans, together with accrued
interest, fees and all other Obligations payable thereon shall be due and
payable on the Tranche A Expiration Date. The principal amount of the Tranche B
Term Loans, together with accrued interest, fees and all other Obligations
payable thereon shall be due and payable on the Tranche B Expiration Date.
3. INTEREST RATES
3.1 Interest Rate Options.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Term Loans as selected by it from the Base Rate Option
or Euro-Rate Option set forth below, it being understood that, subject to the
provisions of this Agreement, the Borrower may select different Interest Rate
Options and different Interest Periods to apply simultaneously to the Term Loans
comprising different Borrowing Tranches and may convert to or renew one or more
Interest Rate Options with respect to all or any portion of the Term Loans
comprising any Borrowing Tranche, provided that there shall not be at any one
time outstanding more than eight (8) Borrowing Tranches in the aggregate among
all of the Term Loans accruing interest at a Euro-Rate Option. If at any time
the designated rate applicable to any Term Loan exceeds such Lender's highest
lawful rate, the rate of interest on such Term Loan shall be limited to such
Lender's highest lawful rate.
3.1.1 Interest Rate Options.
The Borrower shall have the right to select from the following Interest
Rate Options applicable to the Term Loans:
(i) Base Rate Option: A fluctuating rate per annum (computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed) equal
to the Base Rate plus 1.00% in the case of Tranche A Term Loans, and equal to
the Base Rate plus 1.50% in the case of Tranche B Term Loans, 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 2.50% in the case
of Tranche A Term Loans, and equal to the Euro-Rate plus 3.00% in the case of
Tranche B Term Loans.
3.1.2 Rate Quotations.
The Borrower may call the Administrative Agent on or before the date on
which a Rate Request is to be delivered to receive an indication of the rates
then in effect as to Term Loans, but it is acknowledged that such projection
shall not be binding on the Administrative Agent or the Lenders nor affect the
rate of interest which thereafter is actually in effect when the election is
made.
3.2 Interest Periods.
At any time when the Borrower shall select, convert to or renew a Euro-Rate
Option, the Borrower shall notify the Administrative Agent thereof at least
three (3) Business Days prior to the effective date of such Euro-Rate Option by
delivering a Rate Request. The notice shall specify an interest period (the
"Interest Period") during which the Euro-Rate Option shall apply, such Interest
Period to be one, two, three or six Months. Notwithstanding the preceding
sentence, the following provisions shall apply to any selection of, renewal of,
or conversion to a Euro-Rate Option:
3.2.1 Ending Date and Business Day.
any Interest Period which would otherwise end on a date which is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
3.2.2 Amount of Borrowing Tranche.
each Borrowing Tranche of Term Loans to which the Euro-Rate Option applies
shall be in integral multiples of $25,000,000 and not less than $25,000,000;
3.2.3 Termination Before Expiration Date.
the Borrower shall not select, convert to or renew an Interest Period for
any portion of the Term Loans that would end, in the case of Tranche A Term
Loans, after the Tranche A Expiration Date, or in the case of Tranche B Term
Loans, after the Tranche B 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 Interest Rate.
the rate of interest for each Term Loan otherwise applicable pursuant to
Section 3.1.1 [Interest Rate Options] shall be increased by 2.0% per annum; and
3.3.2 Other Obligations.
each other Obligation hereunder if not paid when due shall bear interest at
a rate per annum equal to the sum of the rate of interest applicable under the
Base Rate Option plus an additional 2.0% per annum from the time such Obligation
becomes due and payable until it is paid in full.
3.3.3 Acknowledgment.
The Borrower acknowledges that the increase in rates referred to in this
Section 3.3 reflects, among other things, the fact that such Term Loans or other
amounts have become a substantially greater risk given their default status and
that the Lenders are entitled to additional compensation for such risk and all
such interest shall be payable by Borrower upon demand by Administrative Agent.
Upon the occurrence of an Event of Default, no Term Loan may be converted to or
renewed under the Euro-Rate Option.
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available.
3.4.1 Unascertainable.
If, on any date on which a Euro-Rate would otherwise be determined with
respect to Term Loans, the Administrative Agent shall have determined that:
(i) adequate and reasonable means do not exist for ascertaining such
Euro-Rate, or
(ii) a contingency has occurred which materially and adversely affects the
London interbank eurodollar market relating to the Euro-Rate,
then the Administrative Agent shall have the rights specified in Section
3.4.3 [Administrative Agent's and Lender's Rights].
3.4.2 Illegality; Increased Costs; Deposits Not Available.
If at any time any Lender shall have determined that:
(i) the making, maintenance or funding of any Term Loan to which a
Euro-Rate Option applies has been made impracticable or unlawful by compliance
by such Lender in good faith with any Law or any interpretation or application
thereof by any Official Body or with any request or directive of any such
Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and fairly reflect the cost
to such Lender of the establishment or maintenance of any such Term Loan, or
(iii) after making all reasonable efforts, deposits of the relevant amount
in Dollars for the relevant Interest Period for a Term Loan to which a Euro-Rate
Option applies are not available to such Lender with respect to such Term Loan
in the London interbank market,
then the Administrative Agent and the Lenders shall have the rights specified in
Section 3.4.3 [Administrative Agent's and Lender's Rights].
3.4.3 Administrative Agent's and Lender's Rights.
In the case of any event specified in Section 3.4.1 [Unascertainable]
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
[Illegality; Increased Costs; Deposits Not Available] 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 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 Term Loans. If any Lender notifies the
Administrative Agent of a determination under Section 3.4.2, the Borrower shall,
subject to the Borrower's indemnification Obligations under Section 4.5.2
[Indemnity] as to any Term Loan of the Lender to which a Euro-Rate Option
applies, on the date specified in such notice either convert such Term Loan to
the Base Rate Option otherwise available with respect to such Term Loan or
prepay such Term Loan in accordance with Section 4.4 [Prepayments]. Absent due
notice from the Borrower of conversion or prepayment, such Term Loan shall
automatically be converted to the Base Rate Option otherwise available with
respect to such Term Loan upon such specified date.
3.5 Selection of Interest Rate Options.
If the Borrower fails to select a new Interest Period to apply to any
Borrowing Tranche of Term Loans under the Euro-Rate Option at the expiration of
an existing Interest Period applicable to such Borrowing Tranche in accordance
with the provisions of Section 3.2 [Interest Periods], the Borrower shall be
deemed to have converted such Borrowing Tranche to the Base Rate Option
commencing upon the last day of the existing Interest Period.
4. PAYMENTS
4.1 Payments.
All payments and prepayments to be made in respect of principal, interest,
Administrative Agent's Fee or other fees or amounts due from the Borrower
hereunder shall be payable prior to 11:00 a.m., Pittsburgh time, on the date
when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Borrower, and without set-off,
counterclaim or other deduction of any nature, and an action therefor shall
immediately accrue. Such payments shall be made to the Administrative Agent at
the Principal Office for the ratable accounts of the Lenders with respect to the
Term Loans, in U.S. Dollars and in immediately available funds, and the
Administrative Agent shall promptly distribute such amounts to the Lenders in
immediately available funds, provided that in the event payments are received by
11:00 a.m., Pittsburgh time, by the Administrative Agent and such payments are
not distributed to the Lenders on the same day received by the Administrative
Agent, the Administrative Agent shall pay the Lenders 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. 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 Term Loans and other amounts owing
under this Agreement and shall be deemed an "account stated."
4.2 Pro Rata Treatment of Lenders.
The Tranche A Term Loans shall be allocated to each Lender according to its
Ratable Share, as such Ratable Share relates specifically to the Tranche A
Commitments of all Lenders having Tranche A Commitments. The Tranche B Term
Loans shall be allocated to each Lender according to its Ratable Share, as such
Ratable Share relates specifically to the Tranche B Commitments of all Lenders
having Tranche B Commitments. Each selection of, conversion to or renewal of any
Interest Rate Option applicable to Tranche A Term Loans and each payment or
prepayment by the Borrower with respect to principal or interest on the Tranche
A Term Loans or other fees related thereto (except for the Administrative
Agent's Fee) or amounts due from the Borrower hereunder to the Lenders with
respect to the Tranche A Term Loans, shall (except as provided in Section 3.4.3
[Administrative Agent's and Lender's Rights] in the case of an event specified
in Sections 3.4 [Euro-Rate Unascertainable, etc.], 4.4.2 [Replacement of a
Lender] or 4.5 [Additional Compensation in Certain Circumstances]) be made in
proportion to the Ratable Share of Tranche A Term Loans outstanding from each
Lender and, if no Tranche A Term Loans are then outstanding, in proportion to
the Ratable Share with respect to Tranche A Commitments of each Lender. Each
selection of, conversion to or renewal of any Interest Rate Option applicable to
Tranche B Term Loans and each payment or prepayment by the Borrower with respect
to principal or interest on the Tranche B Term Loans or other fees related
thereto (except for the Administrative Agent's Fee) or amounts due from the
Borrower hereunder to the Lenders with respect to the Tranche B Term Loans,
shall (except as provided in Section 3.4.3 [Administrative Agent's and Lender's
Rights] in the case of an event specified in Sections 3.4 [Euro-Rate
Unascertainable, etc.], 4.4.2 [Replacement of a Lender] or 4.5 [Additional
Compensation in Certain Circumstances]) be made in proportion to the Ratable
Share of Tranche B Term Loans outstanding from each Lender and, if no Tranche B
Term Loans are then outstanding, in proportion to the Ratable Share with respect
to Tranche B Commitments of each Lender. Amounts due from the Borrower hereunder
which are not otherwise related to the Tranche A Term Loans or the Tranche B
Term Loans shall be made in proportion to each Lender's Ratable Share with
respect to the Term Loans outstanding and, if no Term Loans are then
outstanding, in proportion to each Lender's Ratable Share with respect to the
Commitments.
4.3 Interest Payment Dates.
Interest on Term Loans to which the Base Rate Option applies shall be due
and payable in arrears on the first Business Day of each July, October, January
and April after the date hereof, in the case of the Tranche A Term Loans, on the
Tranche A Expiration Date, in the case of the Tranche B Term Loans, on the
Tranche B Expiration Date or upon acceleration of the Term Loans. Interest on
Term Loans to which the Euro-Rate Option applies shall be due and payable on the
last day of each Interest Period for those Term Loans and, if such Interest
Period is longer than three (3) Months, also on the date that is three (3)
Months after the commencement of such Interest Period (and if applicable, the
date that is six (6) Months after the commencement of such Interest Period) of
such Interest Period, in the case of the Tranche A Term Loans, on the Tranche A
Expiration Date, in the case of the Tranche B Term Loans, on the Tranche B
Expiration Date or, in each case, upon acceleration of the Term Loans. Interest
on the principal amount of the Term Loans or other monetary Obligation shall be
due and payable on demand after such principal amount or other monetary
Obligation becomes due and payable (whether on the stated maturity date, upon
acceleration or otherwise).
4.4 Prepayments.
4.4.1 Voluntary Prepayments.
The Borrower shall have the right at its option from time to time to prepay
the Term Loans in whole or part without premium or penalty (except as provided
in Section 4.4.2 [Replacement of a Lender] below or in Section 4.5 [Additional
Compensation in Certain Circumstances]):
(i) at any time with respect to Term Loans to which the Base Rate Option
applies,
(ii) on the last day of the applicable Interest Period with respect to Term
Loans to which a Euro-Rate Option applies,
(iii) on the date specified in a notice by any Lender pursuant to Section
3.4 [Euro-Rate Unascertainable, etc.] with respect to any Term Loan to which a
Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the Term Loans, it
shall provide a prepayment notice to the Administrative Agent by 1:00 p.m.,
Pittsburgh time, at least three (3) Business Days prior to the date of
prepayment of the Term Loans, setting forth the following information:
(x) the date, which shall be a Business Day, on which the proposed
prepayment is to be made (the "Prepayment Date");
(y) a statement indicating whether the prepayment is of Tranche A Term
Loans or Tranche B Term Loans; and
(z) the total principal amount of such prepayment, which shall not be less
than $5,000,000 and in increments of $1,000,000 above $5,000,000.
All prepayment notices shall be irrevocable. The principal amount of the
Term Loans for which a prepayment notice is given, together with interest on
such principal amount, shall be due and payable on the date specified in such
prepayment notice as the date on which the proposed prepayment is to be made.
During any period prior to the repayment in full of the Tranche A Term
Loans, in accordance with the provision hereinafter set forth in this paragraph,
in the event of any proposed prepayment of any portion of the Tranche B Loans, a
Lender with outstanding Tranche B Term Loans may elect not to receive its
Ratable Share of such proposed prepayment. Upon its receipt of any notice of
prepayment of Tranche B Term Loans pursuant to this Section 4.4.1, the
Administrative Agent shall promptly give the Lenders with outstanding Tranche B
Term Loans notice of the amount of prepayment specified in such notice. Prior to
the repayment in full the Tranche A Term Loans, in the event that any Lender
with outstanding Tranche B Term Loans elects not to receive its Ratable Share of
such prepayment, such Lender shall, on or before the first Business Day (the
"Cutoff Date") prior to the Prepayment Date, provide written notice to the
Administrative Agent of the amount, if any, it elects not to receive in
prepayment of its Tranche B Term Loan (it being understood that any Lender which
does not notify the Administrative Agent of its election not to receive all or
part of any prepayment on or before the Cutoff Date shall be deemed to have
elected, as of the Cutoff Date, not to make such election). All amounts that
Lenders with Tranche B Term Loans have elected not to receive pursuant to this
paragraph shall be applied in the following manner: (i) first, to prepay the
Tranche B Term Loans of the Lenders that have not elected not to receive such
prepayments according to the Ratable Share with respect to the outstanding
Tranche B Term Loans of each such Lender, (ii) second, to prepay the Tranche A
Term Loans according to the Ratable Share with respect to the outstanding
Tranche A Term Loans of each Lender; and (iii) third, the excess, if any, shall
be returned to the Borrower.
After the date of repayment in full of the Tranche A Term Loans, a Lender
with Tranche B Term Loans outstanding shall no longer have the option, as
provided in the immediately prior paragraph, to elect not to receive its Ratable
Share of any prepayment of Tranche B Term Loans. Without limiting the foregoing,
from and after the date of repayment in full of the Tranche A Term Loans, each
voluntary prepayment of Tranche B Term Loans made pursuant to this Section shall
be applied to prepay the Tranche B Term Loans of the Lenders according to the
Ratable Share with respect to the outstanding Tranche B Term Loans of each such
Lender.
Except as provided in Section 3.4.3 [Administrative Agent's and Lender's
Rights], if the Borrower prepays Term Loans but fails to specify the applicable
Borrowing Tranche which the Borrower is prepaying, the prepayment shall be
applied (i) first to Term Loans to which the Base Rate Option applies, and (ii)
then to Term Loans to which the Euro-Rate Option applies. Any prepayment
hereunder shall be subject to the Borrower's Obligation to indemnify the Lenders
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.], or (ii) becomes
subject to the control of an Official Body (other than normal and customary
supervision), then the Borrower shall have the right at its option, with the
consent of the Administrative Agent, which shall not be unreasonably withheld
(except that during any period when an Event of Default exists and is
continuing, the Administrative Agent may withhold such consent in its sole
discretion), to prepay the Term Loans of such Lender in whole, together with all
interest and fees accrued thereon and all other amounts due and payable to such
Lender under the Loan Documents, and terminate such Lender's Commitment within
ninety (90) days after (y) receipt of such Lender's notice under Section 3.4
[Euro-Rate Unascertainable, etc.] or 4.5.1 [Increased Costs, etc.], or (z) the
date such Lender became subject to the control of an Official Body, as
applicable; provided that the Borrower shall also pay to such Lender at the time
of such prepayment any amounts required under Section 4.5 [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 Term Loans of such Lender in accordance with this Section 4.4.2 on a day
other than the last day of an Interest Period with respect to Term Loans to
which a Euro-Rate Option applies if the Term Loans of such Lender are being
prepaid because such Lender has determined that the making, maintenance or
funding of such Term Loans by such Lender under the Euro-Rate Option has been
made unlawful or because such Lender has become subject to the control of an
Official Body) and any accrued interest due on such amount and any related fees;
provided, however, that the Commitment and any Term Loan of such Lender shall be
provided by one or more of the remaining Lenders at its sole discretion or a
replacement lender acceptable to the Administrative Agent. Notwithstanding the
foregoing, the Administrative Agent may only be replaced subject to the
requirements of Section 9.14 [Successor Agents].
4.4.3 Change of Lending Office.
Each 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 Term
Loan affected by such event, provided that such designation is made on such
terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, in such Lender's good faith determination, with the
object of avoiding the consequence of the event giving rise to the operation of
such Section. Nothing in this Section 4.4.3 shall affect or postpone any of the
Obligations of the Borrower or any other Loan Party or the rights of any Agent
or any Lender provided in this Agreement.
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 or the Term Loans or payments by the Borrower of
principal, interest or other amounts due from the Borrower hereunder (except for
taxes on the overall net income of such Lender),
(ii) imposes, modifies or deems applicable any capital adequacy or similar
requirement (A) against assets (funded or contingent) of, or other credits or
commitments to extend credit extended by, any Lender, or (B) otherwise
applicable to the obligations of any Lender under this Agreement,
(iii) imposes, modifies or deems applicable any reserve, special deposit or
similar requirement against credits or commitments to extend credit extended by,
or assets (funded or contingent) of, deposits with or for the account of, or
other acquisitions of funds by, any Lender, or
and the result of any of the foregoing is to increase the cost to, reduce
the income receivable by, or impose any expense (including loss of margin) upon
any Lender with respect to this Agreement, or the making, maintenance or funding
of any part of the Term Loans (or, in the case of any capital adequacy or
similar requirement, to have the effect of reducing the rate of return on any
Lender's capital, taking into consideration such Lender's customary policies
with respect to capital adequacy) by an amount which such Lender in its sole
discretion deems to be material, such Lender shall from time to time notify the
Borrower and the 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 Term
Loans subject to a Euro-Rate Option) which such Lender sustains or incurs as a
consequence of any
(i) payment, prepayment, conversion or renewal of the Term Loans to which a
Euro-Rate Option applies on a day other than the last day of the corresponding
Interest Period (whether or not such payment or prepayment is mandatory,
voluntary or automatic and whether or not such payment or prepayment is then
due),
(ii) attempt by the Borrower to revoke (expressly, by later inconsistent
notices or otherwise) in whole or part any Rate Request under Section 2.5
[Request to Select Interest Rate Options] or Section 3.2 [Interest Periods] or
notice relating to prepayments under Section 4.4 [Prepayments], or
(iii) default by the Borrower in the performance or observance of any
covenant or condition contained in this Agreement or any other Loan Document,
including any failure of the Borrower to pay when due (by acceleration or
otherwise) any principal of or interest on the Term Loans or any other amount
due hereunder.
If any 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 [Intentionally Omitted]
4.7 Taxes.
4.7.1 No Deductions.
All payments made by the Borrower hereunder shall be made free and clear of
and without deduction for any present or future taxes, levies, imposts,
deductions, charges, or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the net income of the Lenders and all income and
franchise taxes of the United States applicable to the Lenders (all such
non-excluded taxes, levies, imposts deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable under
the Credit Agreement, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this subsection), the 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.
4.7.2 Stamp Taxes.
In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder or from the execution,
delivery, or registration or otherwise with respect to, the Credit Agreement
(hereinafter referred to as "Other Taxes").
4.7.3 Indemnification for Taxes Paid by Lenders.
The Borrower shall indemnify the Lenders for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this subsection) paid by such Lender
and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date such Lender makes written demand therefor.
4.7.4 Certificate.
Within 30 days after the date of any payment of any Taxes by the Borrower,
the Borrower shall furnish to the 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.
4.7.5 Survival.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in
subsections 4.7.1 [No Deductions] through 4.7.4 [Certificate] shall survive the
payment in full of the Term Loan made to Borrower by any Lender under the
Agreement.
4.7.6 Refund and Contest.
If the Borrower determines in good faith that a reasonable basis exists for
contesting any Taxes or Other Taxes with respect to which the Borrower was
required to take the actions specified in the second sentence of subsection
4.7.1 [No Deductions], the relevant Lender (to the extent such Lender reasonably
determines in good faith that it will not suffer any adverse effect as a result
thereof) shall cooperate with the Borrower in challenging the imposition of such
Taxes or Other Taxes at the Borrower's expense if so requested by the Borrower
in writing. If such Lender receives a refund of Taxes or Other Taxes for which
the payment has been made by the Borrower pursuant to this Agreement, which
refund in the good faith judgment of such Lender is attributable to the
Borrower, then such Lender shall reimburse the Borrower for such amount as such
Lender determines to be the proportion of the refund as will leave it, after
such reimbursement, in no better or worse position than it would have been in if
the payment had not been required. No Lender nor any Agent shall be obliged to
disclose information regarding its tax affairs or computations to Borrower in
connection with this Section 4.7.6 or any other provision of Section 4.7
[Taxes].
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties.
The Borrower represents and warrants to the 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 LLC Interests of Borrower; Subsidiaries; and Subsidiary Shares.
Schedule 5.1.2 states the name of each of the Borrower's Subsidiaries,
whether such Subsidiary is a Significant Subsidiary, Inactive Subsidiary or a
Special Subsidiary, its jurisdiction of organization, its authorized capital
stock, the issued and outstanding shares (referred to herein as the "Subsidiary
Shares") and the owners thereof if it is a corporation, its outstanding
partnership interests (the "Partnership Interests") if it is a partnership and
its outstanding limited liability company interests, interests assigned to
managers thereof and the voting rights associated therewith (the "LLC
Interests") if it is a limited liability company. Schedule 5.1.2 also sets forth
the jurisdiction of organization of the Borrower, its outstanding limited
liability company interests, interests assigned to managers thereof and the
voting rights associated therewith (the "Borrower LLC Interests"). The Borrower
and each Subsidiary of the Borrower has good and marketable title to all of the
Subsidiary Shares, Partnership Interests and LLC Interests it purports to own,
free and clear in each case of any Lien, other than liens in favor of the
Administrative Agent for the benefit of the Lenders under the Loan Documents.
AWAC has good and marketable title to all of the Borrower LLC Interests it
purports to own, free and clear in each case of any Lien. All Borrower LLC
Interests, Subsidiary Shares, Partnership Interests and LLC Interests have been
validly issued, and all Subsidiary Shares are fully paid and nonassessable. All
capital contributions and other consideration required to be made or paid in
connection with the issuance of the Partnership Interests, LLC Interests and
Borrower LLC Interests have been made or paid, as the case may be. There are no
options, warrants or other rights outstanding to purchase any such Borrower LLC
Interests, Subsidiary Shares, Partnership Interests or LLC Interests except as
indicated on Schedule 5.1.2.
5.1.3 Power and Authority.
Each Loan Party has full power to enter into, execute, deliver and carry
out this Agreement and the other Loan Documents to which it is a party, to incur
the Indebtedness contemplated by the Loan Documents and to perform its
Obligations under the Loan Documents to which it is a party, and all such
actions have been duly authorized by all necessary proceedings on its part. The
Borrower and each Subsidiary of the Borrower party to the Acquisition Documents
has full power to enter into, execute, deliver and perform the Acquisition
Documents to which it is a party, and all such actions have been duly authorized
by all necessary proceedings on its respective part.
5.1.4 Validity and Binding Effect.
This Agreement has been duly and validly executed and delivered by each
Loan Party, and each other Loan Document which any Loan Party is required to
execute and deliver on or after the date hereof will have been duly executed and
delivered by such Loan Party on the required date of delivery of such Loan
Document. This Agreement and each other Loan Document constitutes, or will
constitute, legal, valid and binding obligations of each Loan Party which is or
will be a party thereto on and after its date of delivery thereof, enforceable
against such Loan Party in accordance with its terms, except to the extent that
enforceability of any of such Loan Document may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally or limiting the right of specific
performance. The Acquisition Documents have been duly and validly executed and
delivered by the Borrower and each Subsidiary of the Borrower party thereto. The
Acquisition Documents constitute the legal, valid and binding obligation of the
Borrower and each Subsidiary of the Borrower party thereto, enforceable against
each such Person in accordance with the terms thereof, except to the extent that
enforceability of the Acquisition Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar law, affecting the
enforceability of creditors' rights generally or limiting the right of specific
performance. A complete copy of the Acquisition Documents has been delivered to
the 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 which
any Loan Party or any Subsidiary of any Loan Party, is a party or by which any
of the foregoing Persons is bound or to which any of the foregoing Persons is
subject, or result in the creation or enforcement of any Lien, charge or
encumbrance whatsoever upon any property (now or hereafter acquired) of any Loan
Party or any Subsidiary of any Loan Party (other than Liens granted under the
Loan Documents).
5.1.6 Litigation.
There are no actions, suits, proceedings or investigations pending or, to
the knowledge of any Loan Party, threatened against such Loan Party or any
Subsidiary of such Loan Party at law or equity before any Official Body which
individually or in the aggregate could reasonably be expected to result in a
Material Adverse Change. None of the Loan Parties or any Subsidiary of any Loan
Party is in violation of any order, writ, injunction or any decree of any
Official Body which could reasonably be expected to result in a Material Adverse
Change.
5.1.7 Financial Statements.
(i) Borrower Historical Statements. The Borrower has delivered to the
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, on a consolidated
and consolidating basis, for the period January 1, 2002, through and including
December 31, 2007, derived from various assumptions of the Borrower's management
(the "Financial Projections"). The Financial Projections represent a reasonable
range of possible results in light of the history of the business, present and
foreseeable conditions and the intentions of the Borrower's management. The
Financial Projections accurately reflect, in all material respects on a
consolidated basis, the liabilities of the Borrower and its Subsidiaries upon
consummation of the transactions contemplated hereby as of the Restatement
Effective Date.
5.1.8 Use of Proceeds; Margin Stock.
(i) General.
The Loan Parties shall use the proceeds of the Term Loans in accordance
with Sections 2.4 [Use of Proceeds] and 7.1.9 [Use of Proceeds].
(ii) Margin Stock.
None of the Loan Parties nor any Subsidiary of any Loan Party engages or
intends to engage principally, or as one of its important activities, in the
business of extending credit for the purpose, immediately, incidentally or
ultimately, of purchasing or carrying margin stock (within the meaning of
Regulation U). No part of the proceeds of any Term Loan has been or will be
used, immediately, incidentally or ultimately, to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock or to refund Indebtedness originally incurred for such purpose,
or for any purpose which entails a violation of or which is inconsistent with
the provisions of the regulations of the Board of Governors of the Federal
Reserve System. None of the Loan Parties nor any Subsidiary of any Loan Party
holds or intends to hold margin stock in such amounts that more than 25% of the
reasonable value of the assets of any Loan Party or Subsidiary of any Loan Party
are or will be represented by margin stock.
5.1.9 Full Disclosure.
Neither this Agreement nor any other Loan Document, nor the Acquisition
Documents, nor 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. The Loan Parties are subject to
insurance policies and bonds providing adequate coverage from reputable and
financially sound insurers in amounts sufficient to insure the assets and risks
of each Loan Party and each Subsidiary of each Loan Party in accordance with
prudent business practice in the industry of the Loan Parties and their
Subsidiaries.
5.1.14 Compliance With Laws.
The Loan Parties and their Subsidiaries are in compliance in all material
respects with all applicable Laws (other than Environmental Laws which are
specifically addressed in Section 5.1.18 [Environmental Matters]) in all
jurisdictions in which any Loan Party or Subsidiary of any Loan Party is doing
business except where the failure to do so could not reasonably be expected to
result in a Material Adverse Change.
5.1.15 Investment Companies; Regulated Entities.
None of the Loan Parties or any Subsidiaries of any Loan Party is an
"investment company" registered or required to be registered under the
Investment Company Act of 1940 or under the "control" of an "investment company"
as such terms are defined in the Investment Company Act of 1940 and shall not
become such an "investment company" or under such "control." None of the Loan
Parties or any Subsidiary of any Loan Party is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
5.1.16 Plans and Benefit Arrangements.
(i) The Borrower and each other member of the ERISA Group are in compliance
in all material respects with any applicable provisions of ERISA with respect to
all Benefit Arrangements, Plans and Multiemployer Plans. There has been no
Prohibited Transaction with respect to any Benefit Arrangement or any Plan or,
to the best knowledge of the Borrower, with respect to any Multiemployer Plan or
Multiple Employer Plan, which could result in any material liability of the
Borrower or any other member of the ERISA Group. The Borrower and all other
members of the ERISA Group have made when due any and all payments required to
be made under any agreement relating to a Multiemployer Plan or a Multiple
Employer Plan or any Law pertaining thereto. With respect to each Plan and
Multiemployer Plan, the Borrower and each other member of the ERISA Group (i)
have fulfilled in all material respects their obligations under the minimum
funding standards of ERISA, (ii) have not incurred any liability to the PBGC,
and (iii) have not had asserted against them any penalty for failure to fulfill
the minimum funding requirements of ERISA. All Plans, Benefit Arrangements and
Multiemployer Plans have been administered in accordance with their terms and
applicable Law.
(ii) No event requiring notice to the PBGC under Section 302(f)(4)(A) of
ERISA has occurred or is reasonably expected to occur with respect to any Plan,
and no amendment with respect to which security is required under Section 307 of
ERISA has been made or is reasonably expected to be made to any Plan.
(iii) Neither the Borrower nor any other member of the ERISA Group has
incurred or reasonably expects to incur any material withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower
nor any other member of the ERISA Group has been notified by any Multiemployer
Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer
Plan has been terminated within the meaning of Title IV of ERISA and, to the
best knowledge of the Borrower, no Multiemployer Plan or Multiple Employer Plan
is reasonably expected to be reorganized or terminated, within the meaning of
Title IV of ERISA.
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 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
(d) 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 Security Interests.
The Liens and security interests continued on the Restatement Effective
Date or thereafter granted to the Administrative Agent for the benefit of itself
and the Lenders pursuant to the Collateral Documents constitute and will
continue to constitute Prior Security Interests under the Uniform Commercial
Code as in effect in each applicable jurisdiction (the "Uniform Commercial
Code") or other applicable Law, entitled to all the rights, benefits and
priorities provided by the Uniform Commercial Code or such Law. Financing
statements relating to said security interests have been filed in each office
and, in each jurisdiction where required in order to perfect the security
interests described above, possession has been taken of all certificates or
instruments evidencing the Collateral, and all such action as is necessary or
advisable to establish such rights of the Administrative Agent for the benefit
of itself and the Lenders has been taken, and there is no necessity for any
further action in order to preserve, protect and continue such rights, except
the filing of continuation statements with respect to such financing statements
within six months prior to each five-year anniversary of the filing of such
financing statements. All filing fees and other expenses in connection with each
such action have been or will be paid by the Borrower.
5.1.22 Status of the Pledged Collateral.
All the Subsidiary Shares, Partnership Interests or LLC Interests included
in the Collateral to be pledged pursuant to the Pledge Agreement (Subsidiary
Equity Interests) are or will be upon issuance validly issued and nonassessable
and owned beneficially and of record by the pledgor free and clear of any Lien
or restriction on transfer, except as otherwise provided by the Pledge Agreement
(Subsidiary Equity Interests) and except as the right of the Lenders to dispose
of the Subsidiary Shares, Partnership Interests or LLC Interests may be limited
by the Securities Act of 1933, as amended, and the regulations promulgated by
the SEC thereunder and by applicable state securities laws and the Canyon Fuel
LLC Agreement. There are no shareholder, partnership, limited liability company
or other agreements or understandings with respect to the Subsidiary Shares,
Partnership Interests or LLC Interests included in the Collateral except for the
partnership agreements and limited liability company agreements described on
Schedule 5.1.22. The Loan Parties have delivered true and correct copies of such
partnership agreements and limited liability company agreements to the
Administrative Agent.
5.1.23 Coastal Agreement.
Canyon Fuel is a "Buyer Indemnitee" under the Coastal Agreement and, as
such, has the rights of an "Indemnified Party" under the Coastal Agreement.
Consummation of the Acquisition Transactions did not alter the rights of Canyon
Fuel under the Coastal Agreement.
5.1.24 Solvency.
On the Restatement Effective Date and at the time of the borrowing of the
Term 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.
6. CONDITIONS OF LENDING
The obligation of each Lender to amend and restate the Original Credit
Agreement and make the Term Loans hereunder is subject to the performance by the
Borrower of its Obligations to be performed hereunder at or prior to the making
of the Term Loans and to the satisfaction of the following further conditions:
6.1 Conditions to Amendment and Restatement of the Credit Agreement.
On the Restatement Effective Date:
6.1.1 Officer's Certificate.
The representations and warranties of the Borrower contained in Section 5
[Representations and Warranties] and of each Loan Party in each of the other
Loan Documents shall be true and accurate on and as of the 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, Chief Financial Officer, other
authorized officer or Managing Member of the Borrower to each such effect.
6.1.2 Secretary's Certificate.
There shall be delivered to the Administrative Agent for the benefit of
each 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) a copy of each Loan Party's organizational documents, including its
certificate of incorporation and bylaws, certificate of limited partnership and
partnership agreement, or limited liability company certificate and agreement,
as the case may be, as in effect on the Restatement Effective Date and, in the
case of the certificate of incorporation, limited partnership certificate or
limited liability company certificate, certified by the appropriate state
official where such documents are filed in a state office, together with
certificates from the appropriate state officials as to the continued existence
and good standing of each Loan Party in the state of its formation and each
jurisdiction where it conducts business.
6.1.3 Delivery of Loan Documents; Filing Receipts.
This Agreement, the Guaranty Agreement, the Collateral Sharing Agreement,
the Collateral Documents, the Term Notes, the Intercompany 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 Kirkpatrick & Lockhart LLP and of Robert G.
Jones, 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
Restatement Effective Date and in form and substance satisfactory to the
Administrative Agent and its counsel:
(i) as to the matters set forth in Exhibit 6.1.4; 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 for their own account or
for the account of each Lender, and all other 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 shall have been obtained.
6.1.8 Officer's Certificate Regarding No Material Adverse Change.
Since December 31, 2001, no event shall have occurred with respect to the
Borrower and its Subsidiaries which could reasonably be expected to result in a
Material Adverse Change; since December 31, 2001, 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 President, other executive
financial officer or Managing Member 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 Term Loans, and the consummation of the transactions
contemplated hereby shall not contravene any Law applicable to any Loan Party or
any of the Lenders.
6.1.10 No Actions or Proceedings.
No action, proceeding, investigation, regulation or legislation shall have
been instituted, threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to obtain damages in
respect of, this Agreement or the other Loan Documents, or the consummation of
the transactions contemplated hereby or thereby or which, in the 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 Report of Independent Engineer.
The Borrower shall have delivered to the Agents the report of Weir
International, independent engineers, with respect to the coal reserves of
Borrower and its Subsidiaries and such other matters as are contained in such
report.
6.1.13 Credit Facility for the Parent.
All conditions to the effectiveness of the amendment and restatement on the
Restatement Effective Date of the Arch Credit Facility shall have been
satisfied.
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.
6.1.15 Refinancing.
(a) To permit the refinancing by the Lenders of the term loans 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 Rate Request pursuant to which Term Loans in an amount
sufficient to refinance 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.
(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 Rate Request required by Clause (a)
directly above, its agreement in the form of Exhibit 6.1.15 pursuant to which
Borrower shall be bound by the terms of Section 4.5.2 [Indemnity] 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.
7. COVENANTS
7.1 Affirmative Covenants.
The Borrower covenants and agrees that until payment in full of the Term
Loans and interest thereon, satisfaction of all of the Loan Parties' other
Obligations under the Loan Documents and termination of the Commitments, the
Borrower shall, and shall cause each of its Subsidiaries to, comply at all times
with the following affirmative covenants:
7.1.1 Preservation of Existence, Etc.
The Borrower shall maintain its legal existence as a limited liability
company. The Borrower shall maintain its license or qualification and good
standing in each jurisdiction in which its ownership or lease of property or the
nature of its business makes such license or qualification necessary, except
where the failure to so qualify or maintain such qualification could be
corrected without a material adverse effect on the Borrower. The Borrower shall
cause each of its Subsidiaries to maintain its legal existence as a corporation,
limited partnership or limited liability company, as the case may be except as
otherwise expressly permitted in Section 7.2.3 [Liquidations, Mergers, etc.].
The Borrower shall cause each of its Subsidiaries to maintain its license or
qualification and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary, except where the failure to so qualify could not
reasonably be expected to result in a Material Adverse Change.
7.1.2 Payment of Liabilities, Including Taxes, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to, duly pay
and discharge all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits, or upon any properties belonging to it,
prior to the date on which penalties attach thereto, and all lawful claims
which, if unpaid after becoming due, might become a lien or charge upon any
properties of the Borrower or any Subsidiary of the Borrower, provided that
neither the Borrower nor any Subsidiary of the Borrower shall be required to pay
any such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings and with respect to which there are proper
reserves as required by GAAP, but only to the extent that failure to discharge
any such liabilities would not adversely affect the value of the Collateral.
7.1.3 Maintenance of Insurance.
The Borrower shall, and shall cause each of its Subsidiaries to, be subject
to insurance policies which insure their respective properties and assets
against loss or damage by fire and such other insurable hazards as such assets
are commonly insured (including fire, extended coverage, property damage,
workers' compensation, public liability and business interruption insurance) and
against other risks (including errors and omissions) in such amounts as similar
properties and assets are insured by prudent companies in similar circumstances
carrying on similar businesses, and with reputable and financially sound
insurers, including self-insurance to the extent customary.
7.1.4 Maintenance of Properties and Leases.
The Borrower shall, and shall cause each of its Subsidiaries to, maintain
and preserve all of its respective material properties, necessary or useful in
the proper conduct of the business of the Borrower or such Subsidiary of the
Borrower, in good working order and condition, ordinary wear and tear excepted.
7.1.5 Visitation Rights.
The Borrower shall, and shall cause each of its Subsidiaries to, permit any
of the officers or authorized employees or representatives of the Administrative
Agent or any of the Lenders to visit and inspect during normal business hours
any of its properties and to examine and make excerpts from its books and
records and discuss its business affairs, finances and accounts with its
officers, all in such detail and at such times and as often as any of the
Lenders may reasonably request, provided that each Lender shall provide the
Borrower and the Administrative Agent with reasonable notice prior to any visit
or inspection. In the event any Lender desires to conduct an audit of the
Borrower or any Subsidiary of the Borrower, such Lender shall make a reasonable
effort to conduct such audit contemporaneously with any audit to be performed by
the 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
proceeds of the Term Loans only to continue and refinance the term loans under
the Original Credit Agreement. The Borrower's use of the proceeds of the Term
Loans shall not be for any purpose which contravenes any applicable Law or any
provision hereof.
7.1.10 Operation of Mines.
The Borrower shall, and shall cause each of its Subsidiaries to, operate
their mines in all material respects in accordance with sound coal mining
practices.
7.1.11 Maintenance of Material Contracts.
The Borrower shall, and shall cause each of its Subsidiaries to, comply
with the provisions of and to maintain in full force and effect all material
licenses and material permits required for the lawful operation of the Borrower
and each of its Subsidiaries (other than Environmental Permits which are
addressed in Section 7.1.8 [Compliance With Laws] above) and all Material
Contracts to which any such Person is a party, except where the failure to so
maintain in full force and effect a material license, material permit or
Material Contract could not be reasonably expected to result in a Material
Adverse Change.
7.1.12 Further Assurances.
Each Loan Party shall, from time to time, at its expense, faithfully
preserve and protect the Administrative Agent's Lien on and Prior Security
Interest in the Collateral as a continuing first priority perfected Lien and
shall do such other acts and things as the Administrative Agent in its sole
discretion may deem necessary or advisable from time to time in order to
preserve, perfect and protect the Liens granted under the Loan Documents and to
exercise and enforce its rights and remedies thereunder with respect to the
Collateral.
7.1.13 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
Intercompany Subordination Agreement.
7.1.14 Pledged Collateral Account.
The Borrower shall deposit in an account (the "Pledged Collateral Account")
at the end of each fiscal quarter the amount specified below:
For Each Fiscal Quarter Ending Deposit Amount
June 30, 2002 $0
September 30,2002 $0
December 31, 2002 $0
March 31, 2003 $0
June 30, 2003 $0
September 30, 2003 $0
December 31, 2003 $0
March 31, 2004 $7,500,000
June 30, 2004 $7,500,000
September 30, 2004 $7,500,000
December 31, 2004 $7,500,000
March 31, 2005 $17,500,000
June 30, 2005 $17,500,000
September 30, 2005 $17,500,000
December 31, 2005 $17,500,000
March 31, 2006 $56,250,000
June 30, 2006 $56,250,000
September 30, 2006 $56,250,000
December 31, 2006 $56,250,000
March 31, 2007 $70,000,000
June 30, 2007 $70,000,000
September 30, 2007 $70,000,000
December 31, 2007 $70,000,000
March 31, 2008 $70,000,000
It is acknowledged that the amount deposited in the Pledged Collateral
Account shall be held as collateral security for the Loans in accordance with
the Pledge Agreement (Pledged Collateral Account).
7.2 Negative Covenants.
The Borrower covenants and agrees that until payment in full of the Term
Loans and interest thereon, satisfaction of all of the Loan Parties' other
Obligations hereunder and termination of the Commitments, the Borrower shall and
shall, cause each of its Subsidiaries to, comply with the following negative
covenants:
7.2.1 Indebtedness.
The Borrower shall not, and shall not permit any of its Subsidiaries to, at
any time create, incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) unsecured Indebtedness of the Borrower payable to the Parent;
(iii) other Indebtedness, not to exceed in the aggregate at any time
outstanding for the Borrower and its Subsidiaries, $50,000,000; and
(iv) Indebtedness of any Subsidiary of the Borrower payable to the
Borrower, so long as such Indebtedness is subordinated to the obligations of the
Loan Parties under the Loan Documents pursuant to the Intercompany Subordination
Agreement.
7.2.2 Liens.
The Borrower shall not, and shall not permit any of its Subsidiaries to, at
any time create, incur, assume or suffer to exist any Lien on any of its
respective property or assets, tangible or intangible, now owned or hereafter
acquired, or agree or become liable to do so, except Permitted Liens.
7.2.3 Liquidations, Mergers, Consolidations, Acquisitions.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
dissolve, liquidate or wind-up its affairs, or become a party to any merger or
consolidation, or acquire by purchase, lease or otherwise all or substantially
all of the assets or capital stock of any other Person, provided that:
(1) any Subsidiary of the Borrower may consolidate or merge into any other
Subsidiary of the Borrower (except for Canyon Fuel);
(2) any Loan Party may acquire, whether by purchase or by merger, (A) all
of the ownership interests of another Person, (B) substantially all of assets of
another Person or of a business or division of another Person, or (C) any
additional ownership interest in Canyon Fuel (each a "Permitted Acquisition"),
provided that each of the following requirements is met:
(i) the board of directors or other equivalent governing body of such
Person shall have approved such Permitted Acquisition;
(ii) the business acquired, or the business conducted by the Person whose
ownership interests are being acquired, as applicable, shall be substantially
the same as one or more line or lines of business conducted by the Loan Parties
and shall comply with Section 7.2.7 [Continuation of or Change in Business], and
in the case of any merger a Loan Party shall be the surviving entity after
giving effect to such transaction;
(iii) no Potential Default or Event of Default shall exist immediately
prior to and after giving effect to such Permitted Acquisition; and
(iv) the Borrower and its Subsidiaries shall be in compliance with the
covenants contained in Sections 7.2.10 [Maximum Leverage Ratio], 7.2.11 [Minimum
Fixed Charge Coverage Ratio], 7.2.12 [Minimum EBITDDA], and 7.2.13 [Minimum Net
Worth] determined on a pro forma basis after giving effect to such Permitted
Acquisition (including in such computation Indebtedness or other liabilities
assumed or incurred in connection with such Permitted Acquisition as if such
Indebtedness were incurred as of the first day of the applicable period of
determination).
7.2.4 Dispositions of Assets or Subsidiaries.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
sell, convey, assign, lease, abandon, securitize or enter into a securitization
transaction or otherwise transfer or dispose of, voluntarily or involuntarily,
any of its properties or assets, tangible or intangible (including sale,
assignment, discount or other disposition of accounts, contract rights, chattel
paper, equipment, general intangibles, with or without recourse, or of capital
stock, shares of beneficial interest, partnership interests or limited liability
company interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory or equipment in the
ordinary course of business;
(ii) any sale, transfer or lease of assets by any wholly-owned Significant
Subsidiary of the Borrower to the Borrower or to any other wholly-owned
Significant Subsidiary of the Borrower;
(iii) any sale of assets if and to the extent the Net Cash Proceeds thereof
are applied within 180 days of the consummation of such sale to the purchase by
the Borrower or a Subsidiary of substitute assets; provided that the Borrower
shall have 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 of the date of consummation of such sale;
(iv) any other sale, transfer or lease of assets so long as after giving
effect thereto the Borrower and its Subsidiaries shall be in compliance with the
covenants contained in Sections 7.2.10 [Maximum Leverage Ratio], 7.2.11 [Minimum
Fixed Charge Coverage Ratio], 7.2.12 [Minimum EBITDDA], and 7.2.13 [Minimum Net
Worth] determined on a pro forma basis, and prior to consummating any such sale,
transfer or lease of assets, the Borrower shall have provided written notice
thereof to the Administrative Agent together with a certification of the
Borrower of the compliance of the Borrower and its Subsidiaries with such
covenants, setting forth in such certification a detailed calculation of such
pro forma compliance; or
(v) any sale, transfer, lease or other disposition of assets in the
ordinary course of business which are obsolete or are no longer necessary or
required in the conduct of such Loan Party's or such Subsidiary's business.
Notwithstanding the provisions of this Section 7.2.4, it is expressly agreed
that the Borrower shall not, and shall not permit any of its Subsidiaries to,
sell, convey, assign, lease, abandon or otherwise transfer or dispose of,
voluntarily or involuntarily, any of the properties or assets, tangible or
intangible, or any of the limited liability interests of Thunder Basin Coal
Company LLC, a Delaware limited liability company, other than transactions
permitted by clauses (i), (iii) or (v) above.
7.2.5 Affiliate Transactions.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
enter into or carry out any transaction (including purchasing property or
services from or selling property or services to) with any Affiliate of the
Borrower unless such transaction is not otherwise prohibited by this Agreement
and is entered into in the ordinary course of business upon fair and reasonable
arm's length terms and conditions.
7.2.6 Subsidiaries, Partnerships and Joint Ventures.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
own or create directly or indirectly any Subsidiaries other than (i) any
Significant Subsidiary (other than Canyon Fuel) which has joined the Guaranty
Agreement as Guarantor on the Closing Date; (ii) any Subsidiary which after the
Closing Date becomes a Significant Subsidiary and which upon becoming a
Significant Subsidiary becomes a Guarantor in accordance with Section 10.18
[Joinder of Guarantors] and whose equity interests are pledged to the
Administrative Agent for the benefit of the Lenders in accordance with Section
10.18; and (iii) any Subsidiary which is not a Significant Subsidiary. The
Borrower shall cause any of its Subsidiaries which at any time becomes a
Significant Subsidiary to become a Guarantor in accordance with Section 10.18
and shall cause each owner of the equity interests thereof to pledge such equity
interests to the Administrative Agent for the benefit of the Lenders in
accordance with Section 10.18. Except as shown on Schedule 7.2.6, neither the
Borrower nor any Subsidiary of the Borrower shall become or agree to become (1)
a general or limited partner in any general or limited partnership, except that
the Loan Parties may be general or limited partners in other Loan Parties, or
(2) a member or manager of, or hold a limited liability company interest in, a
limited liability company, except that the Loan Parties may be members or
managers of, or hold limited liability company interests in, other Loan Parties.
7.2.7 Continuation of or Change in Business.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
engage in any business other than the business substantially as conducted and
operated by the Borrower or such Subsidiary as of the date of consummation of
the transactions contemplated by the Contribution Agreement and any business
substantially related thereto, and neither the Borrower nor any Subsidiary of
the Borrower shall permit any material change in such business.
7.2.8 Plans and Benefit Arrangements.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
engage in a Prohibited Transaction with any Plan, Benefit Arrangement or
Multiemployer Plan which, alone or in conjunction with any other circumstances
or set of circumstances, results in liability under ERISA or which could
reasonably be expected to result in a Material Adverse Change.
7.2.9 No Restriction on Dividends.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
enter into or be bound by any agreement which prohibits or restricts, in any
manner, the payment of dividends or other distributions (whether in cash,
securities, property or otherwise), the incurrence of Indebtedness by the
Borrower or any Subsidiary of the Borrower which is payable to Parent or the
making of any loan to the Parent by the Borrower or any Subsidiary of the
Borrower other than this Agreement, the restrictions applicable to Canyon Fuel
set forth in the Canyon Fuel LLC Agreement and the restrictions applicable to
the Borrower set forth in the Arch Western LLC Agreement.
7.2.10 Maximum Leverage Ratio.
The Borrower shall not at any time permit the Leverage Ratio to exceed the
ratio set forth below for the periods specified below:
Period Ratio
Restatement Effective Date through and
including December 31, 2002 3.25 to 1.00
January 1, 2003 through and including
December 31, 2003 2.75 to 1.00
January 1, 2004 and
thereafter 2.25 to 1.00
7.2.11 Minimum Fixed Charge Coverage Ratio.
The Borrower shall not permit the Fixed Charge Coverage Ratio to be less
than the ratio specified below for the periods specified below:
Period Ratio
Restatement Effective Date through and
including December 31, 2003 2.75 to 1.00
January 1, 2004 and
thereafter 3.75 to 1.00
7.2.12 Minimum EBITDDA.
The Borrower shall not permit 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, calculated as of the end of each fiscal quarter for the four (4) fiscal
quarters then ended, to be less than the amount specified below during the
following periods:
Period Minimum EBITDDA
Restatement Effective Date through and including
December 31, 2002 $140,000,000
January 1, 2003 through June 30, 2003 $150,000,000
July 1, 2003 through December 31, 2003 $175,000,000
January 1, 2004 through June 30, 2005 $200,000,000
July 1, 2005 and thereafter $225,000,000
7.2.13 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.
7.2.14 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, or agree, become or remain liable to do any
of the foregoing, except:
(i) trade credit extended on usual and customary terms in the ordinary
course of business;
(ii) Permitted Investments;
(iii) loans by the Borrower to the Parent so long as each such loan is
evidenced by the Eligible Note Receivable which is pledged to the Administrative
Agent for the benefit of the Lenders pursuant to the Note Pledge Agreement;
provided, however, that no such loans shall be made at any time that (x) an
Event of Default has occurred and is continuing and the Required Lenders have
requested the Administrative Agent to prohibit loans to the Parent by the
Borrower as provided in Section 8.2.1 or such loans have automatically been
prohibited by the operation of Section 8.2.2, or (y) the Eligible Reserves, as
measured as of the end of each fiscal quarter, are less than 1,350,000,000 tons;
(iv) the investment by the Borrower in its Subsidiaries; and
(v) other Investments, in connection with or related to the operations of
the Borrower and its Subsidiaries, not exceeding $25,000,000 in the aggregate at
any time.
It is expressly agreed that no loans, investments, advances, dividends,
distributions, dispositions or other transfers of cash of any nature by the
Borrower to the Parent shall be made unless made pursuant to the Eligible Note
Receivable in accordance with clause (iii) of this Section 7.2.14, other than ,
so long as no Event of Default exists after giving effect thereto, any
distribution, in an amount equal to the Hypothetical Income Tax Amount pursuant
to Section 4.3 of the Arch Western LLC Agreement, to Parent concurrent with the
making of such distribution to the ARCO Member.
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 Lenders without the prior written
consent of the Agents.
7.2.16 Limitation on Capital Expenditures.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
make any payments exceeding $150,000,000 in the aggregate in any fiscal year on
account of the purchase or lease of any assets which if purchased would
constitute fixed assets or which if leased would constitute a capitalized lease.
7.3 Reporting Requirements.
The Borrower covenants and agrees that until payment in full of the Term
Loans and interest thereon, satisfaction of all of the Loan Parties' other
Obligations hereunder and under the other Loan Documents and termination of the
Commitments, the Borrower will furnish or cause to be furnished to the
Administrative Agent and each of the Lenders:
7.3.1 Quarterly Financial Statements.
As soon as available and in any event within forty-five (45) calendar days
after the end of each of the first three fiscal quarters in each fiscal year,
financial statements of the Borrower and its Subsidiaries consisting of a
consolidated and consolidating balance sheet as of the end of such fiscal
quarter, related consolidated and consolidating statements of income and equity,
and related consolidated statement of cash flows for the fiscal quarter then
ended and the fiscal year through that date, all in reasonable detail and
certified (subject to normal year-end audit adjustments) by the Chief Executive
Officer, President, Treasurer or Chief Financial Officer of the Borrower as
having been prepared in accordance with GAAP, consistently applied, and setting
forth in comparative form the respective financial statements for the
corresponding date and period in the previous fiscal year.
7.3.2 Annual Financial Statements.
As soon as available and in any event within ninety (90) days after the end
of each fiscal year of the Borrower, financial statements of the Borrower and
its Subsidiaries consisting of a consolidated and consolidating balance sheet as
of the end of such fiscal year, related consolidated and consolidating
statements of income and equity, and related consolidated statement of cash
flows for the fiscal year then ended, all in reasonable detail and setting forth
in comparative form the financial statements as of the end of and for the
preceding fiscal year, and with respect to the consolidated financial statements
certified by independent certified public accountants of nationally recognized
standing satisfactory to the Administrative Agent. The certificate or report of
accountants shall be free of qualifications (other than any consistency
qualification that may result from a change in the method used to prepare the
financial statements as to which such accountants concur) and shall not indicate
the occurrence or existence of any event, condition or contingency which would
materially impair the prospect of payment or performance of any covenant,
agreement or duty of any Loan Party under any of the Loan Documents.
7.3.3 Certificate of the Borrower.
Concurrently with the financial statements of the Borrower furnished to the
Administrative Agent and to the Lenders pursuant to Sections 7.3.1 [Quarterly
Financial Statements] and 7.3.2 [Annual Financial Statements], a certificate of
the Borrower signed by the Chief Executive Officer, President, Treasurer or
Chief Financial Officer of the Borrower, in the form of Exhibit 7.3.3, to the
effect that, except as described pursuant to Section 7.3.4 [Notice of Default],
(i) the representations and warranties of the Borrower contained in Section 5
[Representations and Warranties] and in the other Loan Documents are true on and
as of the date of such certificate with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to an earlier date
or time which shall be true and correct on and as of the specific dates or times
referred to therein) and the Loan Parties have performed and complied with all
covenants and conditions hereof, (ii) no Event of Default or Potential Default
exists and is continuing on the date of such certificate, (iii) containing a
list of each Significant Subsidiary, each Inactive Subsidiary and each Special
Subsidiary, other than those set forth on Schedule 5.1.2, (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], and (v) certifying the amount of the Eligible Reserves as
required by clause (iii) of Section 7.2.14 hereof, including setting forth for
the period applicable to such certificate the Eligible Reserves mined during
such period, the Eligible Reserves acquired during such period, and the Eligible
Reserves divested during such period, all in form and substance reasonably
satisfactory to the Agents.
7.3.4 Notice of Default.
Promptly after any officer of the Borrower has learned of the occurrence of
an Event of Default or Potential Default, a certificate signed by the Chief
Executive Officer, President or Chief Financial Officer of the Borrower setting
forth the details of such Event of Default or Potential Default and the action
which the Borrower proposes to take with respect thereto.
7.3.5 Notice of Litigation.
Promptly after the commencement thereof or promptly after the determination
thereof, notice of all actions, suits, proceedings or investigations before or
by any Official Body or any other Person against any Loan Party or any
Subsidiary of any Loan Party, which (x) involve or could be reasonably expected
to involve assessments against any Loan Party or any Subsidiary of any Loan
Party in excess of $10,000,000, individually or in the aggregate, or (y) involve
a claim or series of claims which if adversely determined could reasonably be
expected to result in a Material Adverse Change or (z) adversely affect the
value of the Collateral.
7.3.6 Notice of Change in Debt Rating.
Within five (5) Business Days after Standard & Poor's or Moody's announces
a change in the 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 the Debt
Rating.
7.3.7 Notices Regarding Plans and Benefit Arrangements.
7.3.8 Certain Events.
Promptly upon becoming aware of the occurrence thereof, notice (including
the nature of the event and, when known, any action taken or threatened by the
Internal Revenue Service or the PBGC with respect thereto) of:
(i) any Reportable Event with respect to the Borrower or any other member
of the ERISA Group (regardless of whether the obligation to report said
Reportable Event to the PBGC has been waived),
(ii) any Prohibited Transaction which could subject the Borrower or any
other member of the ERISA Group to a civil penalty assessed pursuant to Section
502(i) of ERISA or a tax imposed by Section 4975 of the Internal Revenue Code in
connection with any Plan, any Benefit Arrangement or any trust created
thereunder,
(iii) any assertion of material withdrawal liability with respect to any
Multiemployer Plan,
(iv) any partial or complete withdrawal from a Multiemployer Plan by the
Borrower or any other member of the ERISA Group under Title IV of ERISA (or
assertion thereof), where such withdrawal is likely to result in material
withdrawal liability,
(v) any cessation of operations (by the Borrower or any other member of the
ERISA Group) at a facility in the circumstances described in Section 4062(e) of
ERISA,
(vi) withdrawal by the Borrower or any other member of the ERISA Group from
a Multiple Employer Plan,
(vii) a failure by the Borrower or any other member of the ERISA Group to
make a payment to a Plan required to avoid imposition of a Lien under Section
302(f) of ERISA,
(viii) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA, or
(ix) any change in the actuarial assumptions or funding methods used for
any Plan, where the effect of such change is to materially increase or
materially reduce the unfunded benefit liability or obligation to make periodic
contributions.
7.3.9 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.
7.3.10 Notice of Voluntary Termination.
Promptly upon the filing thereof, copies of any notice of standard or
distress termination with the PBGC, or any successor or equivalent form, filed
with the PBGC in connection with the termination of any Plan.
7.3.11 Other Information.
Promptly following request therefor, such other information as any Agent or
Lender may reasonably request, including, without limitation, forecasts and
projections.
7.3.12 Annual Reserves Verification.
Within one hundred twenty (120) days following each fiscal year end of the
Borrower, the Borrower shall deliver to each Agent and each Lender the report of
Weir International, or such other independent engineer as shall be reasonably
satisfactory to the Agents, verifying the amount of the Eligible Reserves by
using reasonable assumptions and standards.
8. DEFAULT
8.1 Events of Default.
An Event of Default shall mean the occurrence or existence of any one or
more of the following events or conditions (whatever the reason therefor and
whether voluntary, involuntary or effected by operation of Law):
8.1.1 Payments Under Loan Documents.
The Borrower shall fail to pay (i) any principal of any Term Loan
(including scheduled installments, mandatory prepayments or the payment due at
maturity) when such principal is due hereunder or (ii) any interest on any Term
Loan, or any other amount owing hereunder or under the other Loan Documents
within three (3) Business Days after such interest or other amount becomes due
in accordance with the terms hereof or thereof;
8.1.2 Breach of Warranty.
Any representation or warranty made at any time by the Borrower herein or
by any of the other Loan Parties in any other Loan Document, or in any
certificate, other instrument or statement furnished pursuant to the provisions
hereof or thereof, shall prove to have been false or misleading in any material
respect as of the time it was made or furnished;
8.1.3 Breach of Negative Covenants or Visitation Rights.
Any of the Loan Parties shall default in the observance or performance of
any covenant contained in Section 7.1.5 [Visitation Rights], Section 7.2
[Negative Covenants], or Section 7.3.4 [Notice of Default];
8.1.4 Breach of Other Covenants.
(a) Any of the Loan Parties shall fail to timely perform the covenants set
forth in Sections 7.3.1 [Quarterly Financial Statements], 7.3.2 [Annual
Financial Statements] or 7.3.3 [Certificate of the Borrower] and such default
shall continue unremedied for a period of thirty (30) Business Days after any
officer of any Loan Party becomes aware of the occurrence thereof;
(b) Any of the Loan Parties shall default in the observance or performance
of any other covenant, condition or provision hereof or of any other Loan
Document and such default shall continue unremedied for a period of thirty (30)
Business Days after any officer of any Loan Party becomes aware of the
occurrence thereof (such grace period 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 may be obligated as a borrower or guarantor in
excess of $10,000,000 in the aggregate, and such breach, default or event of
default consists of the failure to pay (beyond any period of grace permitted
with respect thereto, whether waived or not) any indebtedness when due (whether
at stated maturity, by acceleration or otherwise) or if such breach or default
permits or causes (or with the giving of notice or the passage of time or both
would permit or cause) the acceleration of any indebtedness (whether or not such
right shall have been waived) or the termination of any commitment to lend;
(b) A default or event of default shall occur at any time under the terms
of or with respect to any Obligation (as such term is defined in the Collateral
Sharing Agreement), and such breach, default or event of default consists of the
failure to pay (beyond any period of grace permitted with respect thereto,
whether waived or not) any indebtedness or other obligation thereunder when due
(whether at stated maturity, by acceleration or otherwise) or if such breach or
default permits or causes (or with the giving of notice or the passage of time
or both would permit or cause) the acceleration of any indebtedness or other
obligation (whether or not such right shall have been waived) or the termination
of any other agreement or instrument evidencing any 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 $10,000,000
in the aggregate shall be entered against any Loan Party or any Subsidiary of
any Loan Party by a court having jurisdiction in the premises, which judgment is
not discharged, vacated, bonded or stayed pending appeal within a period of
thirty (30) days from the date of entry; provided, however, that any such
judgment or order shall not be an Event of Default under this Section 8.1.6 if
and for so long as (i) the amount of such judgment or order in excess of
$10,000,000 is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which
shall be rated at least "A" by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment or
order;
8.1.7 Loan Document Unenforceable.
Any of the Loan Documents shall cease to be legal, valid and binding
agreements enforceable against any Loan Party executing the same or such party's
successors and assigns (as permitted under the Loan Documents) in accordance
with the respective terms thereof or shall in any way be terminated (except in
accordance with its terms) or become or be declared ineffective or inoperative
or shall in any way be challenged or contested or cease to give or provide the
respective Liens, security interests, rights, titles, interests, remedies,
powers or privileges intended to be created thereby;
8.1.8 Proceedings Against Assets.
Any of the Loan Parties' or any of their Subsidiaries' assets are attached,
seized, levied upon or subjected to a writ or distress warrant; or such come
within the possession of any receiver, trustee, custodian or assignee for the
benefit of creditors and the same is not cured within thirty (30) days
thereafter;
8.1.9 Notice of Lien or Assessment.
A notice of Lien or assessment in excess of $10,000,000 which is not a
Permitted Lien is filed of record with respect to all or any part of any of the
Loan Parties' or any of their Subsidiaries' assets by the United States, or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental agency, including the PBGC, or any tax or debt
owing at any time or times hereafter to any one of these becomes payable and the
same is not paid within thirty (30) days after the same becomes payable;
8.1.10 Insolvency.
The Borrower and its Subsidiaries, taken as a whole, cease to be Solvent,
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 of the following shall occur: (i) Parent shall cease to own, directly
or indirectly, at least ninety-nine percent (99%) of all issued and outstanding
member interests in the Borrower, (ii) any person or group of persons (within
the meaning of Sections 13(d) or 14(a) of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership of (within the meaning of
Rule 13d-3 promulgated by the SEC under said Act) 35% or more of the voting
capital stock of the Parent; or (iii) within a period of twelve (12) consecutive
calendar months, individuals who (1) were directors of the Parent on the first
day of such period, (2) were nominated for election by the Parent, or (3) were
appointed by the board of directors of the Parent shall cease to constitute a
majority of the board of directors of the Parent;
8.1.14 Involuntary Proceedings.
A proceeding shall have been instituted in a court having jurisdiction in
the premises seeking a decree or order for relief in respect of the Parent, any
Loan Party or Significant Subsidiary of a Loan Party in an involuntary case
under any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or similar official) of
the Parent, any Loan Party or Significant Subsidiary of a Loan Party for any
substantial part of its property, or for the winding-up or liquidation of its
affairs, and such proceeding shall remain undisguised or unseated and in effect
for a period of thirty (30) consecutive days or such court shall enter a decree
or order granting any of the relief sought in such proceeding; or
8.1.15 Voluntary Proceedings.
The Parent, any Loan Party or Significant Subsidiary of a Loan Party shall
commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under any such law, or
shall consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or other similar
official) of itself or for any substantial part of its property or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any action in furtherance of any of
the foregoing.
8.2 Consequences of Event of Default.
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization
Proceedings.
If an Event of Default specified under Sections 8.1.1 [Payments Under Loan
Documents] through 8.1.13 [Change of Control] shall occur and be continuing, the
Lenders and the Administrative Agent shall be under no further obligation to
make Term Loans, and the Administrative Agent may, and upon the request of the
Required Lenders 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, (ii) declare
the unpaid principal amount of the Term Loans then outstanding and all interest
accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to
the Lenders hereunder and thereunder to be forthwith due and payable, and the
same shall thereupon become and be immediately due and payable to the
Administrative Agent for the benefit of each Lender without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, and (iii) prohibit loans by the Borrower to the Parent, provided,
however, that action under this clause (iii) shall be taken only upon the
request of the Required Lenders; and
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings.
If an Event of Default specified under Section 8.1.14 [Involuntary
Proceedings] or 8.1.15 [Voluntary Proceedings] shall occur, the Commitments
shall automatically terminate and be of no further force and effect, the Lenders
shall be under no further obligation to make Term Loans hereunder and the unpaid
principal amount of the Term Loans then outstanding and all interest accrued
thereon, any unpaid fees and all other Indebtedness of the Borrower to the
Lenders hereunder and thereunder shall be immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived, and loans by the Borrower to the Parent shall automatically be
prohibited; and
8.2.3 Set-off.
If an Event of Default shall occur and be continuing, any Lender to whom
any Obligation is owed by any Loan Party hereunder or under any other Loan
Document or any participant of such Lender which has agreed in writing to be
bound by the provisions of Section 9.13 [Equalization of Lenders] and any
branch, Subsidiary or Affiliate of such Lender or participant anywhere in the
world shall have the right, in addition to all other rights and remedies
available to it, without notice to such Loan Party, to set-off against and apply
to the then unpaid balance of all the Term Loans and all other Obligations of
the Borrower and the other Loan Parties hereunder or under any other Loan
Document any debt owing to, and any other funds held in any manner for the
account of, the Borrower or such other Loan Party by such Lender or participant
or by such branch, Subsidiary or Affiliate, including all funds in all deposit
accounts (whether time or demand, general or special, provisionally credited or
finally credited, or otherwise) now or hereafter maintained by the Borrower or
such other Loan Party for its own account (but not including funds held in
custodian or trust accounts) with such Lender or participant or such branch,
Subsidiary or Affiliate. Such right shall exist whether or not any Lender or the
Administrative Agent shall have made any demand under this Agreement or any
other Loan Document, whether or not such debt owing to or funds held for the
account of the Borrower or such other Loan Party is or are matured or unmatured
and regardless of the existence or adequacy of any Collateral, Guaranty or any
other security, right or remedy available to any 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 Term Loans
pursuant to any of the foregoing provisions of this Section 8.2, the Agents or
the Required Lenders (or, at the request of the Agents or the Required Lenders,
any Lender, and any such Lender that has received such a request shall thus be
entitled to exercise the rights set forth in this Section) if owed any amount
with respect to the Term Loans, may, to the extent permitted by Law, proceed to
protect and enforce its rights by suit in equity, action at law and/or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Agreement or the other Loan Documents, including as
permitted by applicable Law the obtaining of the ex parte appointment of a
receiver, and, if such amount shall have become due, by declaration or
otherwise, proceed to enforce the payment thereof or any other legal or
equitable right of any Agent or such Lender; and
8.2.5 Application of Proceeds.
From and after the date on which the 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 any sale or other disposition of the
Collateral, or any part thereof, or 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 realizing on the Collateral or collection of any
Obligations of any of the Loan Parties under any of the Loan Documents,
including advances for taxes, insurance, repairs and the like and reasonable
expenses incurred to sell or otherwise realize on, or prepare for sale or other
realization on, any of the Collateral;
(ii) second, to the repayment of all Indebtedness then due and unpaid of
the Loan Parties to the Lenders incurred under this Agreement or any of the
other Loan Documents, whether of principal, interest, fees, expenses or
otherwise, in such manner as the 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 Lenders
shall, exercise all post-default rights granted to the Administrative Agent and
the Lenders under the Loan Documents or applicable Law.
8.2.7 Notice of Sale.
Any notice required to be given by the Administrative Agent of a sale,
lease, or other disposition of the Collateral or any other intended action by
the Administrative Agent, if given ten (10) days prior to such proposed action,
shall constitute commercially reasonable and fair notice thereof to the
Borrower.
9. THE AGENTS
9.1 Appointment.
Each 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 Lenders 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 Term 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 Term 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 Lenders.
The Administrative Agent and each Agent agrees, upon the written request of
the Required Lenders, to take or refrain from taking any action of the type
specified as being within the 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 Lenders, 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 Lenders or all of
the Lenders. Any action taken or failure to act pursuant to such instructions or
discretion shall be binding on the Lenders, subject to Section 9.6 [Exculpatory
Provisions, etc.]. Subject to the provisions of Section 9.6, no Lender shall
have any right of action whatsoever against the 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
Lenders, 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 Term 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 sue 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 Ratable Share of
Term Loans (or if no Term Loans are outstanding, of Commitments) from and
against all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, reasonable costs, expenses or disbursements, including
attorneys' fees and disbursements, and costs of appraisers and environmental
consultants, of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the 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 Ratable Share of Term Loans (or if no Term Loans are
outstanding, of Commitments) for all amounts due and payable by the Borrower to
the 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 Lender or the
Borrower referring to this Agreement, describing such Potential Default or Event
of Default and stating that such notice is a "notice of default."
9.10 Notices.
Each of the Administrative Agent and each Agent agrees to promptly send to
each Lender a copy of all notices received from the Borrower pursuant to the
provisions of this Agreement or the other Loan Documents promptly upon receipt
thereof. The Administrative Agent shall promptly notify the Borrower and the
other Lenders of each change in the Base Rate and the effective date thereof.
9.11 Lenders in Their Individual Capacities.
With respect to its Commitment and the Term Loans made by it and any other
rights and powers given to it as a Lender hereunder or under any of the other
Loan Documents, the Administrative Agent and each Agent shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not the Administrative Agent or an Agent, as the case may be, and
the term "Lenders" 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 Term Notes.
The Administrative Agent and each Agent may deem and treat any payee of any
Term Note as the owner thereof for all purposes hereof unless and until written
notice of the assignment or transfer thereof shall have been filed with the
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 Term Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Term Note or of any Term Note
or Term Notes issued in exchange therefor.
9.13 Equalization of Lenders.
The Lenders and the holders of any participations in any Commitments or
Term Loans or other rights or obligations of a Lender hereunder agree among
themselves that, with respect to all amounts received by any Lender or any such
holder for application on any Obligation hereunder or under any such
participation, whether received by voluntary payment, by realization upon
security, by the exercise of the right of set-off or banker's lien, by
counterclaim or by any other non-pro rata source, equitable adjustment will be
made in the manner stated in the following sentence so that, in effect, all such
excess amounts will be shared ratably among the Lenders and such holders in
proportion to their interests in payments on the Term Loans, except as otherwise
provided in Sections 3.4.3 [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
Term Loans in such amount as shall result in a ratable participation by the
Lenders and each such holder in the aggregate unpaid amount of the Term Loans,
provided that if all or any portion of such excess amount is thereafter
recovered from the 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 Lenders (if the Agent or Administrative
Agent is a Lender, such Agent's or Administrative Agent's Term Loans and
Commitment shall be considered in determining whether the Required Lenders have
requested such resignation) or required by Section 4.4.2 [Replacement of a
Lender], in either case of (i) or (ii) by giving not less than thirty (30) days'
prior written notice to the Borrower. If any Agent or the Administrative Agent
shall resign under this Agreement, then either (a) the Required Lenders shall
appoint from among the Lenders a successor to such Agent or Administrative
Agent, as the case may be, for the Lenders, subject to the consent of the
Borrower, such consent not to be unreasonably withheld, provided that, no
consent of the Borrower shall be required during any period when an Event of
Default exists and is continuing, or (b) if a successor Agent 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 Lenders 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 Lender shall serve
as Administrative Agent or Agent, as the case may be, until such time as the
Required Lenders 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 Fee.
The Borrower shall pay to the Administrative Agent a nonrefundable fee (the
"Administrative Agent's Fee") for the Administrative Agent's services hereunder
under the terms of a letter (the "Administrative Agent's Letter") between the
Borrower and the Administrative Agent, as amended from time to time.
9.16 Availability of Funds.
The Administrative Agent may assume that each Lender has made or will make
the proceeds of a Term 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 Term Loan or two (2) hours before the time on which
the Administrative Agent actually funds the proceeds of such Term 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 Term 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 Term 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 Term Loans, fees or any other
amounts due to the Lenders under this Agreement. In the event an error in
computing any amount payable to any Lender is made, the 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 Lenders, 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 Commitments; Extension of Expiration Date.
Increase the amount of the Commitment of any Lender hereunder or extend the
Tranche A Expiration Date or the Tranche B Expiration Date without the prior
written consent of each Lender directly affected thereby;
10.1.2 Extension of Payment; Reduction of Principal, Interest or Fees;
Modification of Terms of Payment.
Whether or not any Term Loans are outstanding, extend the time for payment
of principal or interest of any Term Loan or any fee payable to any Lender, or
reduce the principal amount of or the rate of interest borne by any Term Loan or
reduce the rate of any fee payable to any Lender without the prior written
consent of each Lender directly affected thereby;
10.1.3 Release of Collateral or Guarantor.
Except as set forth in Section 9.18, release any of the Collateral
(including, without limitation, any amount held in the Pledged Collateral
Account) or release any Guarantor from its Obligations under the Guaranty
Agreement or any other security for any of the Loan Parties' Obligations without
the prior written consent of each Lender; or
10.1.4 Miscellaneous.
Amend Sections 4.2 [Pro Rata Treatment of Lenders], 7.1.14 [Pledged
Collateral Account], 9.6 [Exculpatory Provisions, etc.] or 9.13 [Equalization of
Lenders] or this Section 10.1, alter any provision regarding the pro rata
treatment of the Lenders, change the definition of Required Lenders, or change
any requirement providing for the Lenders, the Required Lenders or all the
Lenders to authorize the taking of any action hereunder without the prior
written consent of each Lender adversely affected thereby; provided, further,
that no agreement, waiver or consent which would modify the interests, rights or
obligations of any Agent in its capacity as such shall be effective without the
written consent of such Agent and no agreement, waiver or consent which would
modify the interests, rights or obligations of the Administrative Agent in its
capacity shall be effective without the written consent of the Administrative
Agent.
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.
No course of dealing and no delay or failure of the Administrative Agent,
any Agent or any 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.
Limitations.
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 Term Loans or otherwise
under or in connection with the Loan Documents, the transactions contemplated
thereby or any of their respective obligations thereunder. The Lenders will
attempt to minimize the fees and expenses of legal counsel for the Lenders which
are subject to reimbursement by the Borrower hereunder by considering the use of
one law firm to represent the Lenders, 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 Term Loan to be made or taken hereunder
shall be due on a day which is not a Business Day, such payment shall be due on
the next Business Day and such extension of time shall be included in computing
interest and fees, except that the Tranche A Term Loans shall be due on the
Business Day preceding the Tranche A Expiration Date if the Tranche A Expiration
Date is not a Business Day and except that the Tranche B Term Loans shall be due
on the Business Day preceding the Tranche B Expiration Date if the Tranche B
Expiration Date is not a Business Day. Whenever any payment or action to be made
or taken hereunder (other than payment of the Term Loans) shall be stated to be
due on a day which is not a Business Day, such payment or action shall be made
or taken on the next following Business Day (except as provided in Section 3.2
[Interest Periods] with respect to Interest Periods under the Euro-Rate Option),
and such extension of time shall not be included in computing interest or fees,
if any, in connection with such payment or action.
10.5 Funding by Branch, Subsidiary or Affiliate.
10.5.1 Notional Funding.
Each Lender shall have the right from time to time, without notice to the
Borrower, to deem any branch, Subsidiary or Affiliate (which for the purposes of
this Section 10.5 shall mean any corporation or association which is directly or
indirectly controlled by or is under direct or indirect common control with any
corporation or association which directly or indirectly controls such Lender) of
such Lender to have made, maintained or funded any Term Loan to which the
Euro-Rate Option applies at any time, provided that immediately following (on
the assumption that a payment were then due from the Borrower to such other
office), and as a result of such change, the Borrower would not be under any
greater financial obligation pursuant to Section 4.5 [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 Term Loans or any
sources of funding actually used by or available to such Lender.
10.5.2 Actual Funding.
Each Lender shall have the right from time to time to make or maintain any
Term Loan by arranging for a branch, Subsidiary or Affiliate of such Lender to
make or maintain such Term Loan subject to the last sentence of this Section
10.5.2. If any Lender causes a branch, Subsidiary or Affiliate to make or
maintain any part of the Term Loans hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the Term Loans to the same extent as if such Term
Loans were made or maintained by such Lender, but in no event shall any Lender's
use of such a branch, Subsidiary or Affiliate to make or maintain any part of
the Term Loans hereunder cause such Lender or such branch, Subsidiary or
Affiliate to incur any cost or expenses payable by the Borrower hereunder or
require the Borrower to pay any other compensation to any Lender (including any
expenses incurred or payable pursuant to Section 4.5 [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.
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 Term Loans
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 Term Loans or payment in full of the Term Loans. All covenants and agreements
of the Borrower contained in Sections 7.1 [Affirmative Covenants], 7.2 [Negative
Covenants] and 7.3 [Reporting Requirements] herein shall continue in full force
and effect from and after the date hereof so long as the Borrower may borrow
hereunder and until termination of the Commitments and payment in full of the
Term Loans. All covenants and agreements of the Borrower contained herein
relating to the payment of principal, interest, premiums, additional
compensation or expenses and indemnification, including those set forth in
Section 4 [Payments] and Sections 9.5 [Reimbursement and Indemnification of
Agents by the Borrower], 9.7 [Reimbursement and Indemnification of Agents by the
Lenders] and 10.3 [Reimbursement and Indemnification of Lenders by the Borrower,
etc.], shall survive payment in full of the Term Loans and termination of the
Commitments.
10.11 Successors and Assigns.
10.11.1 Binding Effect; Assignments by Borrower.
This Agreement shall be binding upon and shall inure to the benefit of the
Lenders, the Agents, the Administrative Agent, 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 Lenders.
10.11.2 Assignments and Participations by Lenders; Designations.
(a) Assignments and Participations.
This Section shall apply to any assignment or participation by a Lender of
its Term Loans or Commitments. Each Lender may, at its own cost, make
assignments of all or any part of its Commitment and Term Loans to one or more
banks or other entities, subject to the consent of the Borrower (which consent
shall not be required during any period in which an Event of Default exists) and
the Administrative Agent with respect to any assignee, such consents not to be
unreasonably withheld, provided that assignments by a Lender to an Affiliate of
such Lender or Approved Fund of any Lender may be made without the consent of
either of the Borrower or the Administrative Agent upon written notice of such
assignment to the Administrative Agent and compliance with the terms and
conditions of this Section, and provided further that assignments may not be
made in amounts less than $1,000,000 unless such assignment is an assignment of
all of a Lender's Commitment or Term Loans or unless such assignment is an
assignment to an Affiliate of such Lender, an Approved Fund of any Lender or to
another Lender. Each Lender may, at its own cost, grant participations in all or
any part of its Commitment and Term Loans made by it to one or more banks or
other entities without the consent of any party hereto. In the case of an
assignment of all or any portion of a Commitment, upon receipt by the
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 Lender hereunder, the Commitments in Section 2.1 [Commitments]
shall be adjusted accordingly, and upon surrender of the Term Note subject to
such assignment, the Borrower shall execute and deliver a new Term Note to the
assignee in an amount equal to the amount of the Commitment assumed by it and a
new Term Note to the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Any assigning Lender (including a Lender assigning all
or a portion of its Commitment and Term Loans to an Affiliate of such Lender or
Approved Fund of any Lender and, in the case of a Lender which is a fund, to a
fund under common control with such Lender) shall pay to the Administrative
Agent a service fee in the amount of $2,500 for each assignment, which amount
shall not be subject to reimbursement or indemnification by the Borrower;
provided, however, in the case of assignments on the same day by a Lender to an
Approved Fund, so long as the Administrative Agent in its sole discretion agrees
in writing prior to any such assignment only a single $2,500 service fee shall
be payable for all such assignments on such day by such Lender to such Approved
Funds. In the case of a participation, the participant shall have only the
rights specified in Section 8.2.3 [Set-Off] (the participant's rights against
the selling Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto
and not to include any voting rights except with respect to changes of the type
referenced in Sections 10.1.1 [Increase of Commitments, etc.], 10.1.2 [Extension
of Payment, etc.] and 10.1.3 [Release of Collateral or Guarantor]), all of such
Lender's obligations under this Agreement or any other Loan Document shall
remain unchanged, and all amounts payable by any Loan Party hereunder or
thereunder shall be determined as if such Lender had not sold such
participation. Any assignee or participant which is not incorporated under the
Laws of the United States of America or a state thereof shall deliver to the
Borrower and the Administrative Agent the form of certificate described in
Section 10.17 [Tax Withholding] relating to federal income tax withholding. Each
Lender may furnish any publicly available information concerning any Loan Party
or its Subsidiaries and any other information concerning any Loan Party or its
Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees or participants), provided that
such assignees and participants agree to be bound by the provisions of Section
10.12 [Confidentiality].
(b) Designation.
(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "Designating Lender") may grant to one or more special purpose funding
vehicles (each, an "SPV"), identified as such in writing from time to time by
the Designated Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Term Loan that such
Designating Lender would otherwise be obligated to make to the Borrower pursuant
to this Agreement; provided that (x) nothing herein shall constitute a
commitment by any SPV to make any Term Loan, (y) if an SPV elects not to
exercise such option or otherwise fails to provide all or any part of such Term
Loan, the Designating Lender shall be obligated to make such Term Loan pursuant
to the terms hereof and (z) the Designating Lender shall remain liable for any
indemnity or other payment obligation with respect to its Commitment hereunder.
The making of a Term Loan by an SPV hereunder shall utilize the Commitment of
the Designating Lender to the same extent, and as if, such Term Loan were made
by such Designating Lender.
(ii) As to any Term Loans or portion thereof made by it, each SPV shall
have all the rights that a Lender making such Term Loans or portion thereof
would have had under this Agreement; provided, however, that each SPV shall have
granted to its Designating Lender an irrevocable power of attorney, to deliver
and receive all communications and notices under this Agreement (and any Loan
Documents) and to exercise, on such SPV's behalf, all of such SPV's voting
rights under this Agreement. No additional Note shall be required to evidence
the Term Loans or portion thereof made by an SPV; and the related Designating
Lender shall be deemed to hold its Note as agent for such SPV to the extent of
the Term Loans or portion thereof funded by such SPV. In addition, any payments
for the account of any SPV shall be paid to its Designating Lender as agent for
such SPV. Notwithstanding any term or condition hereof, no SPV, unless it shall
have become a Lender hereunder in accordance with the terms of Section
10.11.2(a), shall be a party hereto or have any right to vote or give or
withhold its consent under this Agreement. The 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 Term Loans, and (z) the termination of all Commitments,
it will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof, provided
that the Designating Lender for each SPV hereby agrees to indemnify, save and
hold harmless each other party hereto for any loss, cost, damage and expense
arising out of the inability to institute any such proceeding against such SPV.
(iv) In addition, notwithstanding anything to the contrary contained in
this Section 10.11.2(b) or otherwise in this Agreement (other than the proviso
set forth directly below in this Section 10.11.2(b), any SPV may (y) with notice
to, but without the prior written consent of the Borrower or the Administrative
Agent, at any time and without paying any processing fee therefor, assign or
participate all or a portion of its interest in any Term Loans to the
Designating Lender or to any financial institutions providing liquidity and/or
credit support to or for the account of such SPV to support the funding or
maintenance of Term Loans and (z) disclose on a confidential basis any non
public information relating to its Term Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancements to such SPV; provided, however, that in no event may any non-public
financial information provided by the Borrower under Section 7.3 [Reporting
Requirements] be provided by any SPV to any other Person. In no event shall the
Borrower be obligated to pay to any SPV that has made a Term Loan any greater
amount than the Borrower would have been obligated to pay under this Agreement
if the Designating Lender had made such Term Loan. This Section 10.11.2(b) may
not be amended without the written consent of any Designating Lender affected
thereby.
10.11.3 Non-U.S. Assignees and Participants.
Each Lender or assignee or participant of a Lender that is not incorporated
under the laws of the U.S. or a state thereof (and, upon the written request of
the Administrative Agent, each other Lender or assignee or participant of a
Lender) shall deliver to the Borrower and the Administrative Agent a Withholding
Certificate as described in Section 10.17 [Tax Withholding] relating to federal
income tax withholding. Each Lender may furnish any publicly available
information concerning any Loan Party or its Subsidiaries and any other
information concerning any Loan Party or its Subsidiaries in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees or participants), provided that such assignees and
participants agree to be bound by the provisions of Section 10.12
[Confidentiality].
10.11.4 Assignments by Lenders to Federal Reserve Banks.
Notwithstanding any other provision in this Agreement, any Lender may at
any time pledge or grant a security interest in all or any portion of its rights
under this Agreement, its Term Notes (if any) and the other Loan Documents to
any Federal Reserve Bank without notice to or consent of the Borrower and the
Administrative Agent, and any Lender which is an investment fund may pledge all
or any portion of its Term Notes or Term Loans to its trustee in support of its
obligations to such trustee. No such pledge or grant of a security interest
shall release the transferor Lender of its obligations hereunder or under any
other Loan Document. In no event shall such Federal Reserve Bank or trustee, as
a result of such pledge or grant of a security interest, be considered to be a
"Lender" hereunder or be entitled to require the assigning Lender to take or
omit to take any action hereunder. For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section 10.11 concerning
assignments relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender to any Federal Reserve Bank in accordance with applicable
law.
10.12 Confidentiality.
10.12.1 General.
The 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 in writing as confidential),
except as provided below, and to use such information only in connection with
their respective capacities under this Agreement and for the purposes
contemplated hereby. The Agents, the Administrative Agent and the 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,
insurance company regulatory authority or, with notice to the Borrower as
permitted by applicable Law, as otherwise required by applicable Law or by any
subpoena or other legal process, or in connection with any investigation or
proceeding arising out of the transactions contemplated by this Agreement, (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) the National Association of Insurance
Commissioners or any similar organization, or 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 above as if it were a Lender hereunder.
Such authorization shall survive the repayment of the Term Loans and other
Obligations and the termination of the Commitments.
10.13 Counterparts.
This Agreement may be executed by different parties hereto on any number of
separate counterparts, each of which, when so executed and delivered, shall be
an original, and all such counterparts shall together constitute one and the
same instrument.
10.14 Agent's or Lender's Consent.
Whenever the 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 [NOTICES] 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 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
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) documents in the forms described in Section 6.1
[Conditions to Closing] modified as appropriate to relate to such Subsidiary;
and (iii) documents necessary to grant and perfect a Prior Security Interest to
the Administrative Agent for the benefit of the Lenders in all of the equity
interests of such Subsidiary and in all Collateral held by such Subsidiary. The
Borrower shall deliver such Guarantor Joinder and related documents to the
Administrative Agent within thirty (30) Business Days after the end of the
fiscal quarter in which such Subsidiary of the Borrower becomes a Significant
Subsidiary. In addition, Canyon Fuel (assuming it is a Significant Subsidiary)
shall join the Loan Documents as a Guarantor at such time as the Borrower can
unilaterally, under the terms of the Canyon Fuel LLC Agreement, cause such
joinder to occur.
10.19 Register.
The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at its address for notices referred to at Section 10.6
[Notices] a register (the "Register") and an account for each Lender in which
the Administrative Agent will record the names and addresses of the Lenders and
the Commitments of, and principal amount of the Term Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Commitments and the Term Loans recorded therein for all purposes of
this Agreement; provided, however that the failure of the Administrative Agent
to maintain the Register or an account for any Lender shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Term Loans made to the Borrower by such Lender in accordance with the terms of
this Agreement. An assignment of any Term Loan shall be effective only upon
appropriate entries with respect thereto being made in the Register. Any
assignment or transfer of all or part of a Term Loan evidenced by a Term Note
shall be registered on the Register only upon surrender for registration of
assignment or transfer of the Term Note evidencing such Term Loan, accompanied
by a duly executed Assignment and Assumption Agreement, and thereupon one or
more new Term Notes in the same aggregate principal amount shall be issued by
the Borrower in the appropriate amount(s) to the designated assignee and the
assigning Lender, if such Lender retains any portion of its Term Loans, and the
old Term Notes shall be returned by the Administrative Agent to the Borrower
marked "replaced". The Administrative Agent shall maintain a copy of each
Assignment and Assumption Agreement delivered to it as part of the Register. The
Register shall be available for inspection by the Borrower, and the Lenders and
their representatives (including counsel and accountants), at any reasonable
time and from time to time upon reasonable prior notice. Upon its receipt of a
duly completed Assignment and Assumption Agreement executed by an assigning
Lender and an assignee and meeting the requirements set forth in Section 10.11.2
[Assignments and Participations by Lenders] hereof, the Administrative Agent
shall (i) accept such Assignment and Assumption Agreement, (ii) record the
information contained therein in the Register, and (iii) give prompt notice
thereof to the Lenders. Notwithstanding anything to the contrary contained
herein, no assignment under Section 10.11.2 shall be effective unless and until
the Administrative Agent shall have recorded such assignment in the Register.
The Administrative Agent shall record the name of the transferor, the name of
the transferee, and the amount of the transfer in the Register after receipt of
all documents required pursuant to Section 10.11.2 and such other documents as
the Administrative Agent may reasonably request.
10.20 Amendment and Restatement.
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 Term Loans hereunder are a continuation of
the Term Loans under (and as such term is defined in) the Original Credit
Agreement and are amended to consist of Tranche A Term Loans and Tranche B Term
Loans. 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).
[SIGNATURES APPEAR ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
ATTEST: ARCH WESTERN RESOURCES, LLC
/s/ Janet L. Horgan By: /s/ Robert J. Messey
Name: Janet L. Horgan Name: Robert J. Messey
Title: Secretary Title: Vice President r
[Seal]
PNC BANK, NATIONAL ASSOCIATION
individually and as Administrative Agent
By: /s/ Richard C. Munsick
Richard C. Munsick
Managing Director
JP MORGAN CHASE BANK, individually and
as Syndication Agent
By: /s/ Peter S. Predun
Vice President
CITIBANK, N.A., individually and as
Documentation Agent
By: /s/ Raymond G. Dunning
Raymond G. Dunning
Managing Director
CREDIT LYONNAIS NEW YORK BRANCH,
individually and as Documentation
Agent
By: /s/ Attila Koc
Senior Vice President
U.S. BANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By: /s/ Eric Hartman
Eric Hartman
Vice President
BANK LEUMI USA
By: /s/ Joung Hee Hong
Joung Hee Hong
Vice President
BNP PARIBAS
By: /s/ Evans R. Swann
Evans R. Swann
Director
/s/ Polly Schot
Polly Schot
Vice President
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Brian O'Leary
Brian O'Leary
Vice President
/s/ Anthony Rock
Anthony Rock
Vice President
ERSTE BANK
By: /s/ Gregory Aptman
Gregory Aptman
Vice President
By: /s/ John Runnion
Managing Director
FLEET NATIONAL BANK
By: /s/ Jeffrey H. Rathkamp
Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ William S. Richardson
William S. Richardson
Duly Authorized Signatory
KZH CNC LLC
By: /s/ Susan Lee
Susan Lee
Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Susan Lee
Susan Lee
Authorized Agent
KZH ING-2 LLC
By: /s/ Susan Lee
Susan Lee
Authorized Agent
KZH PONDVIEW LLC
By: /s/ Susan Lee
Susan Lee
Authorized Agent
KZH STERLING LLC
By: /s/ Susan Lee
Susan Lee
Authorized Agent
KZH WATERSIDE LLC
By: /s/ Susan Lee
Susan Lee
Authorized Agent
MIZUHO CORPORATE BANK LIMITED
By: /s/ Nobuyasu Fukatsu
Nobuyasu Fukatsu
Senior Vice President
NATIONAL CITY BANK
By: /s/ Jennifer R. Hammarlund
Jennifer R. Hammarlund
Assistant Vice President
PRINCIPAL LIFE INSURANCE COMPANY
By: /s/ Jon C. Heiny
Jon C. Heiny
Counsel
By: /s/ JoEllen J. Watts
JoEllen J. Watts
Counsel
THE BANK OF NEW YORK
By: /s/ Craig J. Anderson
Craig J. Anderson
Vice President
THE SUMITOMO TRUST & BANKING CO.
LTD., NEW YORK BRANCH
By: /s/ Elizabeth A. Quirk
Elizabeth A. Quirk
Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Robert M. Mills
Robert M. Mills
Investment Officer
TORONTO DOMINION (NEW YORK) INC.
By: /s/ Gwen Zirkle
Gwen Zirkle
Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ David L. Driggers
David L. Driggers
Managing Director