FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the “Amendment”), dated as of March 19, 2010, is
made by and among ARCH COAL, INC., a Delaware corporation (the “Borrower”), the GUARANTORS (as
defined in the Credit Agreement), the BANKS party to the Credit Agreement (as hereinafter defined),
CITICORP USA, INC., JPMORGAN CHASE BANK, N.A. and WACHOVIA BANK, NATIONAL ASSOCIATION, each in its
capacity as co-syndication agent, and BANK OF AMERICA, N.A. (successor by merger to FLEET NATIONAL
BANK), as documentation agent, and PNC BANK, NATIONAL ASSOCIATION, in its capacity as
administrative agent for the Banks.
WHEREAS, the parties hereto are parties to that certain Credit Agreement dated as of December
22, 2004, as amended by that certain First Amendment to Credit Agreement dated as of June 23, 2006,
as amended by that certain Second Amendment to Credit Agreement dated as of October 3, 2006, as
amended by that certain Third Amendment to Credit Agreement dated as of March 6, 2009 and as
amended by that certain Fourth Amendment to Credit Agreement and Amendment to Collateral Agency and
Sharing Agreement dated as of August 27, 2009 (as so amended, the “Credit Agreement”), pursuant to
which the Banks provided a $800,000,000 revolving credit facility to the Borrower; and
WHEREAS, the Borrower, the Banks and the Administrative Agent desire to amend the Credit
Agreement as hereinafter provided.
NOW, THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements
hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows:
1. Definitions.
Capitalized terms used herein unless otherwise defined herein shall have the meanings ascribed
to them in the Credit Agreement, as amended by this Amendment.
2. Amendments to Credit Agreement.
(a) Section 1.1 [Certain Definitions] of the Credit Agreement is hereby amended to insert
therein the following new definition:
“Fifth Amendment Effective Date” shall mean the effective date of the
Fifth Amendment to the Credit Agreement.”
(b) The definition of “Permitted Investments in Arch Western” contained in Section 1.1
[Certain Definitions] is deleted in its entirety.
(c) The following definition contained in Section 1.1 [Certain Definitions] of the Credit
Agreement is hereby amended and restated in its entirety as follows:
“Unsecured Senior Notes Indenture shall mean the any indenture
governing the issuance of certain unsecured notes by the Borrower, and
without regard to any restatement, amendment, modification or
supplement thereof, other than those restatements, amendments modifications
or supplements that may be necessary to add a guarantor subsidiary thereto
in accordance with the terms thereof.”
(d) Section 7.2.6(2)(A) [Subsidiaries, Partnerships and Joint Ventures] of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
“(A) the Permitted Joint Venture is either a corporation, limited liability
company, trust, or a limited partnership or another form of an entity or arrangement
that permits the Borrower and its Subsidiaries to limit their liability, as a matter
of Law, for the obligations of the Permitted Joint Venture;”
(e) Section 7.2.9(a) [Restricted Payments] of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
“The Leverage Ratio shall not exceed: (i) if such Dividend Declaration Date or
Redemption Date occurs during the period commencing on the Fifth Amendment Effective
Date through and including December 31, 2010, then 4.25 to 1.00, (ii) if such
Dividend Declaration Date or Redemption Date occurs during the period commencing on
January 1, 2011 through and including December 31, 2011, then 4.00 to 1.00, and
(iii) if such Dividend Declaration Date or Redemption Date occurs on or after
January 1, 2012, then 3.75 to 1.00;”
(f) Section 7.2.14(v) [Loans and Investments] of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
“(v) (1) Investments of the type described in clause (i) of the definition of
Investment by the Borrower in the Arch Western Group so long as after giving effect
thereto the aggregate amount of the Investments permitted by this clause (v) in the
Arch Western Group shall not exceed $100,000,000and (2) Investments in the form of
loans from any of the Loan Parties to any Person within the Arch Western Group in an
aggregate principal amount of up to $675,000,000 to redeem, retire, repay, or
repurchase the AWR Senior Notes;”
(g) Section 7.2.14(xv) [Loans and Investments] of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
“(xv) any transaction which is an Investment permitted by Sections 7.2.9 or
7.2.19;”
3. Conditions of Effectiveness of Amendments and Consent.
The effectiveness of this Amendment is expressly conditioned upon satisfaction of each of the
following conditions precedent:
(a) Execution and Delivery of Amendment. The Borrower, the other Loan Parties, the
Required Banks, and the Administrative Agent shall have executed and delivered this
Amendment to the Administrative Agent, and all other documentation necessary for effectiveness
of this Amendment shall have been executed and delivered all to the satisfaction of the
Administrative Agent.
(b) Officer’s Certificate. The representations and warranties of the Borrower
contained in Section 5 of the Credit Agreement including as amended by the modifications and
additional representations and warranties of this Amendment, and of each Loan Party in each of the
other Loan Documents shall be true and accurate on and as of the date hereof 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 Bank a certificate of the Borrower dated the date hereof and signed by the
Chief Executive Officer, President, Treasurer or Chief Financial Officer of the Borrower to each
such effect, and also certifying that the Additional Indebtedness is permitted by Section 7.2.1 of
the Credit Agreement (such certification to specify the clause(s) of Section 7.2.1 that permit the
Additional Indebtedness).
(c) Secretary’s Certificate.
There shall be delivered to the Administrative Agent for the benefit of each Bank a
certificate dated the date hereof 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 Amendment and the other
Loan Documents;
(ii) the names of the officer or officers authorized to sign this Amendment 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
Amendment and the true signatures of such officers, on which the Administrative Agent and
each Bank may conclusively rely; and
(iii) copies of its organizational documents, including its certificate of
incorporation and bylaws, certificate of limited partnership and limited partnership
agreement or limited liability company certificate and operating agreement, as the case may
be, as in effect on the date hereof and, in the case of the certificate of incorporation of
the Borrower, certified by the appropriate state official where such document is filed in a
state office, together with certificates from the appropriate state officials as to the
continued existence and good standing of the Borrower in the state of its formation and the
state of its principal place of business.
(d) 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 Amendment, 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 Amendment or any of the other Loan Documents.
(e) Payment of Fees.
The Borrower shall pay or cause to be paid to the Administrative Agent for itself and for the
account of the Banks all fees, costs and expenses payable to the Administrative Agent or any Bank
or for which the Administrative Agent or any Bank is entitled to be reimbursed, including but not
limited to the fees and expenses of the Administrative Agent’s legal counsel.
(f) Consents.
All material consents required to effectuate the transactions contemplated by this Amendment
and the other Loan Documents and shall have been obtained.
(g) Confirmation of Guaranty.
Each of the Guarantors confirms that they have read and understand the Amendment. In order to
induce the Banks, the Administrative Agent and the other Agents to enter into the Amendment, each
of the Guarantors: (i) consents to the Amendment and the transactions contemplated thereby; (ii)
ratifies and confirms each of the Loan Documents to which it is a party; (iii) ratifies, agrees and
confirms that it has been a Guarantor and a Loan Party at all times since it became a Guarantor and
a Loan Party and from and after the date hereof, each Guarantor shall continue to be a Guarantor
and a Loan Party in accordance with the terms of the Loan Documents, as the same may be amended in
connection with the Amendment and the transactions contemplated thereby; and (iv) hereby ratifies
and confirms its obligations under each of the Loan Documents (including all exhibits and schedules
thereto), as the same may be amended in connection with the Amendment and the transactions
contemplated thereby, by signing below as indicated and hereby acknowledges and agrees that nothing
contained in any of such Loan Documents is intended to create, nor shall it constitute an
interruption, suspension of continuity, satisfaction, discharge of prior duties, novation or
termination of the indebtedness, loans, liabilities, expenses, guaranty or obligations of any of
the Loan Parties under the Credit Agreement, the Collateral Agency and Sharing Agreement or any
other such Loan Document.
(h) Legal Details.
All legal details and proceedings in connection with the transactions contemplated by this
Amendment 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 its counsel, as the Administrative Agent or its counsel may reasonably
request.
4. Force and Effect.
Except as otherwise expressly modified by this Amendment, the Credit Agreement, the Collateral
Agency and Sharing Agreement and the other Loan Documents are hereby ratified and confirmed and
shall remain in full force and effect after the date hereof.
5. Governing Law.
This Amendment 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.
6. Effective Date; Certification of the Borrower.
This Amendment shall be dated as of and shall be binding, effective and enforceable upon the
date of satisfaction of all conditions set forth in Section 4 hereof, and from and after such date
this Amendment shall be binding upon the Borrower, each Bank and the Agents, and their respective
successors and assigns permitted by the Credit Agreement. The Borrower by executing this
Amendment, hereby certifies that this Amendment has been duly executed and that as of the date
hereof no Event of Default or Potential Default exists under the Credit Agreement or the other Loan
Documents.
7. No Novation.
This Amendment amends the Credit Agreement and the Collateral Agency and Sharing Agreement,
but is not intended to constitute, and does not constitute, a novation of the Obligations of the
Loan Parties under the Credit Agreement, Collateral Agency and Sharing Agreement or any other Loan
Document.
[Signature Page Follows]
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, have
executed this Amendment as of the day and year first above written.
| ARCH COAL, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Treasurer | |||
| ALLEGHENY LAND COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ARCH COAL SALES COMPANY, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ARCH COAL TERMINAL, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ARCH ENERGY RESOURCES, LLC |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| ARCH RECLAMATION SERVICES, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ARK LAND COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ARK LAND KH, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ARK LAND WR, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ASHLAND TERMINAL, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| CATENARY COAL HOLDINGS, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| COAL-MAC, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| CUMBERLAND RIVER COAL COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| LONE MOUNTAIN PROCESSING, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| XXXXX XXXXX COAL COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| MOUNTAIN GEM LAND, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| MOUNTAIN MINING, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| MOUNTAINEER LAND COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| PRAIRIE HOLDINGS, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| WESTERN ENERGY RESOURCES, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| BANK LEUMI USA |
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| By: | /s/ Xxxxx Xxx Hong | |||
| Name: | Xxxxx Xxx Hong | |||
| Title: | First Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| BANK OF AMERICA, N.A. (as successor by merger to Fleet National Bank and LaSalle Bank National Association), individually and as Documentation Agent |
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| By: | /s/ Xxxx X. Xxx | |||
| Name: | Xxxx X. Xxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| BANK OF MONTREAL |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| CITICORP USA, INC., individually and as
Syndication Agent |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| COMMERCE BANK, N.A. |
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| By: | /s/ T. Xxxxxxx Xxxxx | |||
| Name: | T. Xxxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| JPMORGAN CHASE BANK, N.A., individually and as Syndication Agent |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Executive Director | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| XXXXXX XXXXXXX BANK, N.A. |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| NATIXIS |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| PNC BANK, NATIONAL ASSOCIATION, individually, as Administrative Agent and as Collateral Agent |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| REGIONS BANK |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| SOVEREIGN BANK |
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| By: | /s/ W. Xxx Xxxxx III | |||
| Name: | W. Xxx Xxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| SOUTHWEST BANK, AN M&I BANK |
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| By: | /s/ Xxx X. Xxxxxx | |||
| Name: | Xxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| THE BANK OF NEW YORK MELLON |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxxxx, Xx. | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| THE ROYAL BANK OF SCOTLAND PLC |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| UBS LOAN FINANCE LLC |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director | |||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| UMB BANK, N.A. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| UNION BANK, N.A. (formerly known as Union Bank of California, N.A.) |
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| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| US BANK NATIONAL ASSOCIATION |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Portfolio Manager | |||
[SIGNATURE PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]
| WACHOVIA BANK, NATIONAL ASSOCIATION, individually and as Syndication Agent |
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| By: | /s/ Xxxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxxxx | |||
| Title: | Senior Vice President | |||
