EXHIBIT 99.3
_______ __, 2003
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Arch Western Finance, LLC, a Delaware limited liability company (the
"Company") proposes to make an offer (the "Exchange Offer") to exchange all of
its 6 3/4% Senior Notes due 2013 (the "Old Securities") for its 6 3/4% Senior
Notes due 2013 registered under the Securities Act of 1933, as amended (the "New
Securities"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated _______ __, 2003 (the
"Prospectus"), proposed to be distributed to all record holders of the Old
Securities. The Old Securities and the New Securities are collectively referred
to herein as the "Securities".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about _______ __, 2003. The Letter of Transmittal accompanying the Prospectus
(or in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_______ __, 2003 or on such subsequent date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (promptly confirmed in writing) or written notice to you before
9:00 a.m., New York City time, on the business day following the previously
scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Outstanding Notes not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "Exchange
Offer--Conditions." The Company will
give oral (promptly confirmed in writing) or written notice of any amendment,
termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as
are specifically set forth in the section of the Prospectus captioned "The
Exchange Offer" or as specifically set forth herein; provided, however, that in
no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish a book-entry account with respect
to the Old Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days after the
date of the Prospectus, and any financial institution that is a participant in
the Book-Entry Transfer Facility's systems may make book-entry delivery of the
Old Securities by causing the Book-Entry Transfer Facility to transfer such Old
Securities into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal
and certificates for Old Securities (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Securities to ascertain
whether: (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein; and (ii) the Old Securities have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Old Securities
are not in proper form for transfer or some other irregularity in connection
with the acceptance of the Exchange Offer exists, you will endeavor to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be reasonably necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of Xxxxx X. Xxxxxx, Esq., Assistant
General Counsel of Arch Coal, Inc., a Delaware corporation ("Arch Coal"), (such
approval, if given orally, to be promptly confirmed in writing) or any other
party designated in writing, by her, you are authorized to waive any
irregularities in connection with any tender of Old Securities pursuant to the
Exchange Offer.
5. Tenders of Old Securities may be made only as set
forth in the Letter of Transmittal and in the section of the Prospectus
captioned "The Exchange Offer," and Old Securities shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding the provisions of this Section 5, Old Securities which
Xxxxx X. Xxxxxx, Esq., Assistant General Counsel of Arch Coal, shall approve as
having been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
2
6. You shall advise the Company with respect to any Old
Securities received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are
registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as
indicated on the Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her authority so to
act is submitted; and
(c) from persons other than the registered
holder of Old Securities, provided that customary transfer requirements,
including payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the registrar for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions
to the Exchange Offer, the Company will notify you (such notice, if given
orally, to be promptly confirmed in writing) of its acceptance, promptly after
the Expiration Date, of all Old Securities properly tendered and you, on behalf
of the Company, will exchange such Old Securities for New Securities and cause
such Old Securities to be cancelled. Delivery of New Securities will be made on
behalf of the Company by you at the rate of $1,000 principal amount of New
Securities for each $1,000 principal amount of the corresponding series of Old
Securities tendered promptly after notice (such notice if given orally, to be
promptly confirmed in writing) of acceptance of said Old Securities by the
Company; provided, however, that in all cases, Old Securities tendered pursuant
to the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or manually signed facsimile thereof) with
any required signature guarantees and any other required documents. You shall
issue New Securities only in denominations of $1,000 or any integral multiple
thereof.
9. Tenders pursuant to the Exchange Offer are
irrevocable, except that, subject to the terms and upon the conditions set forth
in the Prospectus and the Letter of Transmittal, Old Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
10. The Company shall not be required to exchange any Old
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of
3
any decision by the Company not to exchange any Old Securities tendered shall be
given (if given orally, to be promptly confirmed in writing) by the Company to
you.
11. If, pursuant to the Exchange Offer, the Company does
not accept for exchange all or part of the Old Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer" or otherwise, you shall as
soon as practicable after the expiration or termination of the Exchange Offer
return those certificates representing unaccepted Old Securities (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
12. All certificates representing reissued Old
Securities, unaccepted Old Securities or New Securities shall be forwarded by
first-class mail.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any act, omission to
act or sufferance to exist, unless the same constitutes your own gross
negligence or willful misconduct, and in no event shall you be liable to a
securityholder, the Company or any third party for any special, punitive,
indirect or consequential loss or damages of any kind whatsoever, or lost
profits, arising in connection with this Agreement even if you have been advised
of the likelihood of such loss or damage and regardless of the form of action;
(b) shall have no duties or obligations other
than those expressly set forth herein or as may be subsequently agreed to in
writing between you and the Company, and no implied duties or obligations shall
be read into this Agreement against you. No provision in this Agreement shall
require you to expend or risk your own funds or otherwise incur financial
liability in the performance of any of your duties, or in the exercise of your
rights and powers hereunder;
(c) will be regarded as making no
representations and having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the certificates or the Old Securities
represented thereby deposited with you pursuant to the Exchange Offer, and will
not be required to and will make no representation as to the validity, value or
genuineness of the New Securities or the Exchange Offer;
(d) shall not be obligated to take any legal
action hereunder which might in your judgment involve any expense or liability,
unless you shall have been furnished with indemnity satisfactory to you;
(e) may conclusively rely on and shall be fully
protected in acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or
4
other document or security delivered to you and believed by you to be genuine
and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request,
document, agreement, certificate or other instrument whatsoever not only as to
its due execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which you shall
in good faith believe to be genuine or to have been signed or presented by the
proper person or persons;
(g) may conclusively rely on and shall be fully
protected in acting upon written or oral instructions from any authorized
officer of the Company;
(h) may consult with counsel of your selection
with respect to any questions relating to your duties and responsibilities as
Exchange Agent and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by you hereunder in good faith and in accordance with the
advice or opinion of such counsel;
(i) shall not advise any person tendering Old
Securities pursuant to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market value of any Old
Securities;
(j) you shall not be liable for any action
taken, suffered or omitted by you in good faith and believed by you to be
authorized or within the discretion or rights or powers conferred upon you by
this Agreement; and
(k) you shall not be responsible or liable for
any failure or delay in the performance of your obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond your
reasonable control, including without limitation, acts of God, earthquakes,
fires, floods, wars, civil or military disturbances, terrorist acts, sabotage,
epidemics, riots, interruptions, loss or malfunctions of utilities, computer
(hardware or software) or communications service, accidents, labor disputes, and
acts of civil or military authority or governmental actions, it being understood
that you shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
15. You shall take such action as may from time to time
be requested by the Company (and such other action as you may deem appropriate)
to furnish copies of the Prospectus, Letter of Transmittal and Notice of
Guaranteed Delivery (as defined in the Prospectus) or such other forms as may be
approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer and not
the merits of the Exchange Offer. The Company will furnish you with copies of
such documents on your request. All other requests for information
5
relating to the Exchange Offer shall be directed to the Company, Attention:
Xxxxx X. Xxxxxx, Esq.
16. You shall advise by facsimile transmission: Xxxxx X.
Xxxxxx, Esq., Assistant General Counsel of Arch Coal (at the facsimile number
(000) 000-0000), and such other person or persons as the Company may request,
daily (and more frequently during the week immediately preceding the Expiration
Date if requested) up to and including the Expiration Date, as to the number of
Old Securities which have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Old
Securities tendered, the aggregate principal amount of Old Securities accepted
and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date and, after the expiration of the
Exchange Offer, the time, of receipt thereof and shall be preserved by you for a
period of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials in accordance with your customary
practices.
18. For services rendered as Exchange Agent hereunder,
you shall be entitled to such compensation as set forth on Schedule I attached
hereto. The provisions of this section shall survive the termination of this
Agreement.
19. You hereby acknowledge receipt of the Prospectus and
the Letter of Transmittal. Any inconsistency between this Agreement, on the one
hand, and the Prospectus and the Letter of Transmittal (as they may be amended
from time to time), on the other hand, shall be resolved in favor of the latter
two documents, except with respect to your duties, liabilities and
indemnification as Exchange Agent.
20. The Company covenants and agrees to fully indemnify
and hold you harmless against any and all loss, liability, cost or expense,
including attorneys' fees and expenses, incurred without gross negligence or
willful misconduct on your part, arising out of or in connection with any act,
omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document believed by you to be valid, genuine and sufficient
and in accepting any tender or effecting any transfer of Old Securities believed
by you in good faith to be authorized, and in delaying or refusing in good faith
to accept
6
any tenders or effect any transfer of Old Securities or in otherwise accepting
or performing your duties hereunder or in being or acting as Exchange Agent. In
each case, the Company shall be notified by you, by letter or facsimile
transmission, of the written assertion of a claim against you or of any other
action commenced against you, promptly after you shall have received any such
written assertion or shall have been served with a summons in connection
therewith. The Company shall be entitled to participate at its own expense in
the defense of any such claim or other action and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you, so long as the Company shall retain counsel
satisfactory to you to defend such suit, and so long as you have not determined,
in your reasonable judgment, that a conflict of interest exists between you and
the Company. The provisions of this section shall survive the termination of
this Agreement.
21. You shall arrange to comply with all requirements
under the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a
timely manner to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Old Securities, the Company's check in the
amount of all transfer taxes so payable; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received by you.
23. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (including without limitation
Section 5-1401 of the New York General Obligations Law or any successor to such
statute) and shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
25. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices,
requests and other communications to any party hereunder shall be in writing
(including facsimile or similar
7
writing) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company:
Arch Western Finance, LLC
Xxx XxxxXxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration
28. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 18 and 20 shall survive the termination of this
Agreement. Except as otherwise set forth herein, upon any termination of this
Agreement, you shall promptly deliver to the Company any certificates for
Securities, funds or property then held by you as Exchange Agent under this
Agreement.
This Agreement shall inure to the benefit of and the obligations
created hereby shall be binding upon the successors and assigns of the parties
hereto. This Agreement shall be effective as of the date hereof.
{remainder of page intentionally left blank}
8
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
ARCH WESTERN FINANCE, LLC
By:_____________________________
Name: Xxxxxx X. Xxxxxx
Title: President
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: __________________________________
Name:
Title:
9
SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
$7,500 PER CUSIP NUMBER PLUS $1000 PER EXTENSION OF OFFER
PLUS OUT-OF POCKET EXPENSES, INCLUDING, WITHOUT
LIMITATION, LEGAL FEES AND EXPENSES.
