FOURTH AMENDMENT TO CREDIT
AGREEMENT AND AMENDMENT TO
COLLATERAL AGENCY AND SHARING AGREEMENT
THIS FOURTH
AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO COLLATERAL AGENCY
AND SHARING AGREEMENT (the “Amendment”), dated as
of August 27, 2009, 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 and as amended by that certain Third
Amendment to Credit Agreement dated as of March 6, 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 desires to have certain Banks extend the Expiration
Date of their Revolving Credit Commitments and/or join new Banks to
the Credit Agreement, amend certain financial covenants and amend
the Collateral Agency and Sharing Agreement.
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:
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) The
following definitions contained in Section 1.1 (Certain
Definitions) of the Credit Agreement shall be amended and restated
in its entirety:
“
Bank-Provided Commodity Hedge shall mean a Commodity Hedge
which is provided by any Bank or an Affiliate of any Bank and which
meets the following requirements: such Commodity Hedge (i) is
documented in a standard International Swap Dealer Association
Agreement or such other standard trading documentation,
(ii) provides for the method of calculating the reimbursable
amount of the provider’s credit exposure in a reasonable and
customary manner, and (iii) is entered into for hedging
purposes.”
“
Corporate Credit Rating shall mean (a) the
“Corporate Family Rating” by Moody’s and
(b) the “Corporate Credit Rating” by Standard
& Poor’s, as such terms are commonly used as a rating
category by each rating agency.”
“
Expiration Date shall mean (a) with respect to all
Non-Extending Revolving Credit Commitments, June 23, 2011 (the
“Non-Extended Expiration Date”) and (b) with
respect to all Extending Revolving Credit Commitments,
March 31, 2013 (the “Extended Expiration
Date”).”
“
Interest Period shall mean the period of time selected by
the Borrower in connection with (and to apply to) any election
permitted hereunder by the Borrower to have Revolving Credit Loans
bear interest under the Euro-Rate Option. Subject to the last
sentence of this definition, such period shall be one, two, three
or six Months. Such Interest Period shall commence on the effective
date of such Interest Rate Option, which shall be (i) the
Borrowing Date if the Borrower is requesting new Revolving Credit
Loans, or (ii) the date of renewal of or conversion to the
Euro-Rate Option if the Borrower is renewing or converting to the
Euro-Rate Option applicable to outstanding Revolving Credit Loans.
Notwithstanding the second sentence hereof: (A) 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,
(B) the Borrower shall not select, convert to or renew an
Interest Period which commences prior to the Non-Extended
Expiration Date and ends after the Non-Extended Expiration Date,
and (C) the Borrower shall not select, convert to or renew an
Interest Period that would end after the Extended Expiration
Date.”
“
Revolving Credit Commitment shall mean, as to any Bank at
any time, the Non-Extending Revolving Credit Commitment or
Extending Revolving Credit Commitment, as applicable, in the amount
initially set forth opposite its name on Schedule 1.1
(B) in the column labeled ‘Amount of Commitment for
Revolving Credit Loans,’ and thereafter as determined by the
Administrative Agent after giving effect to each applicable Bank
Joinder and Assignment and Assumption Agreement executed by such
Bank and delivered to the Administrative Agent, and Revolving
Credit Commitments shall mean the aggregate Revolving Credit
Commitments of all of the Banks, which aggregate amount shall not
exceed $860,000,000 as of the Fourth Amendment Effective
Date.”
(b) Section 1.1
[Certain Definitions] of the Credit Agreement is hereby amended to
insert therein, in alphabetical order, the following new
definitions:
“
Extended Expiration Date shall have the meaning set forth in
the definition of “Expiration Date”.”
“
Extending Revolving Credit Commitment Utilization Fee shall
have the meaning set forth in Section 2.3.2 [Extending
Revolving Credit Commitment Utilization Fee].”
“
Extending Revolving Credit Commitment Unused Fee shall have
the meaning set forth in Section 2.3.3 [Extending Revolving
Credit Commitment Unused Fee].”
“
Extending Bank shall mean each Bank who is designated as
having an “Extending Revolving Credit Commitment” on
Schedule 1.1 (B) of this Agreement.”
“
Extending Revolving Credit Commitment shall mean the
Extending Revolving Credit Commitment of each Extending Bank as
indicated on Schedule 1.1 (B) of this Agreement and
Extending Revolving Credit Commitments shall mean the Extending
Revolving Credit Commitments of all of the Extending
Banks.”
“ Fourth
Amendment shall mean that certain Fourth Amendment to Credit
Agreement and Amendment to Collateral Agency and Sharing Agreement,
dated as of August 27, 2009, among the Borrower, the
Guarantors, the Banks, the Administrative Agent and the other
Agents.”
“ Fourth
Amendment Effective Date shall mean the effective date of the
Fourth Amendment, which date is August 27,
2009.”
“
Non-Extended Expiration Date shall have the meaning set
forth in the definition of “Expiration
Date”.”
“
Non-Extending Revolving Credit Commitments shall mean all
Revolving Credit Commitments other than Extending Revolving Credit
Commitments.”
(c) Article 2
[Revolving Credit and Swing Loan Facilities] of the Credit
Agreement is hereby amended as follows:
(i) Section 2.3
[Fees; Commitment Fees] is hereby amended as follows:
(A) The title to
Section 2.3 shall be amended from “ Fees, Commitment
Fees ” to “ Fees ”;
(B) The entire
paragraph currently constituting Section 2.3 shall be
identified as “2.3.1 Commitment Fees
”;
(C) The following
subsections shall be inserted into Section 2.3 immediately
after the end thereof:
“2.3.2
Extending Revolving Credit Commitment Utilization
Fee.
Accruing from the
Fourth Amendment Effective Date until the Extended Expiration Date,
the Borrower agrees to pay to the Administrative Agent for the
account of each Extending Bank, as consideration for such Extending
Bank’s Extending Revolving Credit Commitment hereunder, a
nonrefundable extending revolving credit commitment utilization fee
(the “ Extending Revolving Credit Commitment Utilization
Fee ”) equal to the applicable rate per annum set forth
below on the average daily balance of such Extending Bank’s
outstanding Loans and Letters of Credit Outstanding.
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Leverage Ratio and Corporate
Credit Rating
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Applicable
Percentage
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If (i) the Leverage Ratio is less than or
equal to 4.00 to 1.00 and (ii) the Borrower’s Corporate
Credit Rating from (a) Standard & Poor’s is BB- or
higher and (b) Moody’s is Ba3 or higher.
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0.50
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%
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If (i) the Leverage Ratio is greater than
4.00 to 1.00 and (ii) the Borrower’s Corporate Credit
Rating from (a) Standard & Poor’s is BB- or higher
and (b) Moody’s is Ba3 or higher.
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0.75
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%
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If (i) the Leverage Ratio is less than or
equal to 4.00 to 1.00 and (ii) the Borrower’s Corporate
Credit Rating from (a) Standard & Poor’s is lower
than BB- or (b) Moody’s is lower than Ba3.
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1.00
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%
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If (i) the Leverage Ratio is greater than
4.00 to 1.00 and (ii) the Borrower’s Corporate Credit
Rating from (a) Standard & Poor’s is lower than BB-
or (b) Moody’s is lower than Ba3.
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1.25
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%
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All Extending
Revolving Credit Commitment Utilization Fees shall be payable in
arrears on the first Business Day of each July, October, January
and April after the Fourth Amendment Effective Date and on the
Extended Expiration Date or upon acceleration of the Loans. It is
expressly agreed that commencing on the date immediately after the
date of the delivery of the financial statements and related
Compliance Certificate as required pursuant to Section 7.3.3
[Certificate of the Borrower] hereof, the Extending Revolving
Credit Commitment Utilization Fee shall be determined based upon
the applicable Leverage Ratio recomputed as of the end of each
fiscal quarter based on the Leverage Ratio as of such quarter end
and on the Corporate Credit Ratings as updated from time to time.
Any increase or decrease in the Extending Revolving Credit
Commitment Utilization Fee computed as of a quarter end shall be
effective on the earlier of (i) the date on which the
Compliance Certificate evidencing such computation is due to be
delivered under Section 7.3.3 [Certificate of Borrower],
together with the financial statements related thereto required to
be delivered pursuant to Section 7.3.1 [Quarterly Financial
Statements] or Section 7.3.2 [Annual Financial Statements], as
the case may be or (2) the date on which the Corporate Credit
Rating of the Borrower is updated; provided , however
; if the Borrower shall fail to timely deliver the financial
statements required to be delivered pursuant to Section 7.3.1
[Quarterly Financial Statements] or 7.3.2 [Annual Financial
Statements], as the case may be, together with the duly executed
Compliance Certificate required by Section 7.3.3 [Certificate of
the Borrower], the Leverage Ratio for such date from and including
the date on which such statements are required to be delivered
until the date on which such financial statements
and related
Compliance Certificate are delivered shall be deemed to be greater
than 4.00 to 1.00.
2.3.3 Extending
Revolving Credit Commitment Unused Fee.
Accruing from the
Fourth Amendment Effective Date until the Extended Expiration Date,
the Borrower agrees to pay to the Administrative Agent for the
account of each Extending Bank, as consideration for such Extending
Bank’s Extending Revolving Credit Commitment hereunder, a
nonrefundable Extending Revolving Credit Commitment unused fee (the
“ Extending Revolving Credit Commitment Unused Fee
”) equal to the applicable rate per annum set forth below on
the average daily difference between the amount of (i) such
Extending Bank’s Extending Revolving Credit Commitment as the
same may be constituted from time to time, and (ii) the sum of
such Extending Bank’s Loans outstanding plus its Revolving
Credit Ratable Share of the Letters of Credit
Outstanding.
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Corporate Credit
Rating
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Applicable
Percentage
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If the Borrower’s Corporate Credit Rating
from (i)Standard & Poor’s is BB- or greater and (ii)
Moody’s is Ba3 or greater.
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0.125
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%
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If the Borrower’s Corporate Credit Rating
from (i)Standard & Poor’s is less than BB- or (ii)
Moody’s is less than Ba3.
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0.25
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%
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All Extending
Revolving Credit Commitment Unused Fees shall be payable in arrears
on the first Business Day of each July, October, January and April
after the date hereof and on the Expiration Date or upon
acceleration of the Loans.”
(ii) Clause
(B) of the first paragraph of Section 2.9.1 [Issuance of
Letters of Credit] is hereby amended and restated in its entirely
to read as follows:
“(B) in
no event expire later than ten (10) Business Days prior to the
Extended Expiration Date and provided that in no event shall
(i) the Letters of Credit Outstanding with respect to all
Letters of Credit exceed, at any one time, $700,000,000,
(ii) after giving effect to all such Letters of Credit, the
Revolving Facility Usage exceed the Revolving Credit

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