EXHIBIT 4.2
Execution Copy
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P&L Coal Holdings Corporation
SERIES A AND SERIES B
9-5/8% SENIOR SUBORDINATED NOTES DUE 2008
SENIOR SUBORDINATED NOTE INDENTURE
Dated as of May 18, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Bank and Trust Company
Senior Subordinated Note Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section Senior Subordinated
Note Indenture Section
310 (a)(1)............................................................. 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.10
(i)(b)................................................................. 7.10
(ii)(c)................................................................ N.A.
311(a)................................................................. 7.11
(b).................................................................... 7.11
(iii)(c)............................................................... N.A.
312(a)................................................................. 2.05
(b).................................................................... 12.03
(iv)(c)................................................................ 12.03
313(a)................................................................. 7.06
(b)(2)................................................................. 7.07
(v)(c)................................................................. 7.06;
12.02
(vi)(d)................................................................ 7.06
314(a)................................................................. 4.03;
12.02
(c)(1)................................................................. 12.04
(c)(2)................................................................. 12.04
(c)(3)................................................................. N.A.
(vii)(e)............................................................... 12.05
(f).................................................................... NA
315(a)................................................................. 7.01
(b).................................................................... 7.05,
12.02
(A)(c)................................................................. 7.01
(d).................................................................... 7.01
(e).................................................................... 6.11
316(a)(last sentence).................................................. 2.09
(a)(1)(A).............................................................. 6.05
(a)(1)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.07
(B)(c)................................................................. 2.12
317(a)(1).............................................................. 6.08
(a)(2)................................................................. 6.09
(b).................................................................... 2.04
318(a)................................................................. 12.01
(b).................................................................... N.A.
(c).................................................................... 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Senior Subordinated Note
Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
Section 1.01. Definitions............................................... 1
Section 1.02. Other Definitions......................................... 18
Section 1.03. Incorporation by Reference of Trust Indenture Act......... 19
Section 1.04. Rules of Construction..................................... 19
ARTICLE 2.
THE SENIOR SUBORDINATED NOTES...................... 20
Section 2.01. Form and Dating........................................... 20
Section 2.02. Execution and Authentication.............................. 21
Section 2.03. Registrar and Paying Agent................................ 22
Section 2.04. Paying Agent to Hold Money in Trust....................... 22
Section 2.05. Holder Lists.............................................. 23
Section 2.06. Transfer and Exchange..................................... 23
Section 2.07. Replacement Senior Subordinated Notes..................... 36
Section 2.08. Outstanding Senior Subordinated Notes..................... 37
Section 2.09. Treasury Senior Subordinated Notes........................ 37
Section 2.10. Temporary Senior Subordinated Notes....................... 37
Section 2.11. Cancellation.............................................. 38
Section 2.12. Defaulted Interest........................................ 38
Section 2.13. CUSIP Numbers............................................. 38
ARTICLE 3.
REDEMPTION AND PREPAYMENT........................ 39
Section 3.01. Notices to Senior Subordinated Note Trustee............... 39
Section 3.02. Selection of Senior Subordinated Notes to Be Redeemed..... 39
Section 3.03. Notice of Redemption...................................... 39
Section 3.04. Effect of Notice of Redemption............................ 40
Section 3.05. Deposit of Redemption Price............................... 40
Section 3.06. Senior Subordinated Notes Redeemed in Part................ 41
Section 3.07. Optional Redemption....................................... 41
Section 3.08. Mandatory Redemption...................................... 42
Section 3.09. Offer to Purchase by Application of Excess Proceeds....... 42
Section 3.10. Special Mandatory Redemption.............................. 44
ARTICLE 4.
COVENANTS................................ 44
Section 4.01. Payment of Senior Subordinated Notes...................... 44
Section 4.02. Maintenance of Office or Agency........................... 44
Section 4.03. Reports................................................... 45
Section 4.04. Compliance Certificate.................................... 45
Section 4.05. Taxes..................................................... 46
Section 4.06. Stay, Extension and Usury Laws............................ 46
Section 4.07. Restricted Payments....................................... 46
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Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries.............................................. 50
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock 51
Section 4.10. Asset Sales............................................... 54
Section 4.11. Transactions with Affiliates.............................. 55
Section 4.12. Liens..................................................... 56
Section 4.13. Business activities....................................... 56
Section 4.14. Corporate Existence....................................... 56
Section 4.15. Offer to Repurchase Upon Change of Control................ 56
Section 4.16. No Senior Subordinated Debt............................... 57
Section 4.17. Additional Subordinated Subsidiary Guarantees............. 58
Section 4.18. Payments for consents..................................... 58
ARTICLE 5.
SUCCESSORS................................ 58
Section 5.01. Merger, Consolidation, or Sale of Assets.................. 58
Section 5.02. Successor Corporation Substituted......................... 59
ARTICLE 6.
DEFAULTS AND REMEDIES.......................... 59
Section 6.01. Events of Default......................................... 59
Section 6.02. Acceleration.............................................. 61
Section 6.03. Other Remedies............................................ 62
Section 6.04. Waiver of Past Defaults................................... 62
Section 6.05. Control by Majority....................................... 63
Section 6.06. Limitation on Suits....................................... 63
Section 6.07. Rights of Holders of Senior Subordinated Notes to Receive
Payment................................................... 63
Section 6.08. Collection Suit by Senior Subordinated Note Trustee....... 64
Section 6.09. Senior Subordinated Note Trustee May File Proofs of Claim. 64
Section 6.10. Priorities................................................ 64
Section 6.11. Undertaking for Costs..................................... 65
ARTICLE 7.
SENIOR SUBORDINATED NOTE TRUSTEE..................... 65
Section 7.01. Duties of Senior Subordinated Note Trustee................ 65
Section 7.02. Rights of Senior Subordinated Note Trustee................ 66
Section 7.03. Individual Rights of Senior Subordinated Note Trustee..... 67
Section 7.04. Senior Subordinated Note Trustee's Disclaimer............. 67
Section 7.05. Notice of Defaults........................................ 67
Section 7.06. Reports by Senior Subordinated Note Trustee to Holders of
the Senior Subordinated Notes............................. 67
Section 7.07. Compensation and Indemnity................................ 68
Section 7.08. Replacement of Senior Subordinated Note Trustee........... 69
Section 7.09. Successor Senior Subordinated Note Trustee by Merger, etc. 70
Section 7.10. Eligibility; Disqualification............................. 70
Section 7.11. Preferential Collection of Claims Against Company......... 70
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE................. 70
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.. 70
Section 8.02. Legal Defeasance and Discharge............................ 71
Section 8.03. Covenant Defeasance....................................... 71
Section 8.04. Conditions to Legal or Covenant Defeasance................ 72
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions..................... 73
Section 8.06. Repayment to Company...................................... 73
Section 8.07. Reinstatement............................................. 74
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER..................... 74
Section 9.01. Without Consent of Holders of Senior Subordinated Notes... 74
Section 9.02. With Consent of Holders of Senior Subordinated Notes...... 75
Section 9.03. Compliance with Trust Indenture Act....................... 77
Section 9.04. Revocation and Effect of Consents......................... 77
Section 9.05. Notation on or Exchange of Senior Subordinated Notes...... 77
Section 9.06. Senior Subordinated Note Trustee to Sign Amendments, etc.. 78
ARTICLE 10.
SUBORDINATION.............................. 78
Section 10.01. Agreement to Subordinate.................................. 78
Section 10.02. Certain Definitions....................................... 78
Section 10.03. Liquidation; Dissolution; Bankruptcy...................... 79
Section 10.04. Default on Designated Senior Debt......................... 79
Section 10.05. Acceleration of Senior Subordinated Notes................. 80
Section 10.06. When Distribution Must Be Paid Over....................... 80
Section 10.07. Notice by Company......................................... 81
Section 10.08. Subrogation............................................... 81
Section 10.09. Relative Rights........................................... 81
Section 10.10. Subordination May Not Be Impaired by Company.............. 81
Section 10.11. Distribution or Notice to Representative.................. 82
Section 10.12. Rights of Senior Subordinated Note Trustee and Paying
Agent..................................................... 82
Section 10.13. Authorization to Effect Subordination..................... 82
Section 10.14. Amendments................................................ 82
ARTICLE 11.
SUBORDINATED SUBSIDIARY GUARANTEES.................... 83
Section 11.01. Guarantee................................................. 83
Section 11.02. Subordination of Subordinated Subsidiary Guarantee........ 84
Section 11.03. Limitation on Senior Subordinated Note Guarantor Liability 84
Section 11.04. Execution and Delivery of Subordinated Subsidiary
Guarantee................................................. 84
Section 11.05. Senior Subordinated Note Guarantors May Consolidate, etc.,
on Certain Terms.......................................... 85
Section 11.06. Releases Following Sale of Assets......................... 86
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ARTICLE 12.
MISCELLANEOUS............................... 86
Section 12.01. Trust Indenture Act Controls.............................. 86
Section 12.02. Notices................................................... 87
Section 12.03. Communication by Holders of Senior Subordinated Notes with
Other Holders of Senior Subordinated Notes................ 88
Section 12.04. Certificate and Opinion as to Conditions Precedent........ 88
Section 12.05. Statements Required in Certificate or Opinion............. 88
Section 12.06. Rules by Senior Subordinated Note Trustee and Agents...... 89
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders.......................................... 89
Section 12.08. Governing Law............................................. 89
Section 12.09. No Adverse Interpretation of Other Agreements............. 89
Section 12.10. Successors................................................ 89
Section 12.11. Severability.............................................. 89
Section 12.12. Counterpart Originals..................................... 89
Section 12.13. Table of Contents, Headings, etc.......................... 90
EXHIBITS
Exhibit A1 FORM OF SENIOR SUBORDINATED NOTE
Exhibit A2 FORM OF TEMPORARY REGULATION S SENIOR SUBORDINATED NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF SUBORDINATED SUBSIDIARY GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
SCHEDULES
Schedule I Schedule of Senior Subordinated Note Guarantors
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SENIOR SUBORDINATED NOTE INDENTURE dated as of May 18, 1998 between
P&L Coal Holdings Corporation, a Delaware corporation (the "Company"), and State
Street Bank and Trust Company, as Senior Subordinated Note Trustee (the "Senior
Subordinated Note Trustee").
The Company and the Senior Subordinated Note Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the 9-5/8% Series A Senior Subordinated Notes due 2008 (the "Series A
Senior Subordinated Notes") and the 9-5/8% Series B Senior Subordinated Notes
due 2008 (the "Series B Senior Subordinated Notes" and, together with the Series
A Senior Subordinated Notes, the "Senior Subordinated Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Senior Subordinated Note" means a global note in the
form of Exhibit A1 hereto bearing the Global Senior Subordinated Note Legend and
the Private Placement Legend and deposited with or on behalf of, and registered
in the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Senior
Subordinated Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the acquisition by the Company of: (i) all of the
common stock of Peabody Holding Company, (ii) all of the common stock of Gold
Fields Mining Corp., (iii) all of the membership interests of Citizens Power
LLC, (iv) the 1% interests in ▇▇ ▇▇▇▇▇▇▇▇, L.L.C., a Delaware limited liability
company, and Citizens Power Sales, a Delaware general partnership, both
subsidiaries of Citizens Power LLC, (v) all of the shares of Darex Capital,
Inc., a company incorporated in the Republic of Panama, and (vi) all of the
ordinary shares of Peabody Australia , LTD., which together with Darex Capital,
Inc. owns Peabody Resources Limited.
"Additional Assets" means (i) any property or assets (other than
Capital Stock, Indebtedness or rights to receive payments over a period greater
than 180 days, other than with respect to coal supply contract restructurings)
that is usable by the Company or a Restricted Subsidiary in a Permitted Business
or (ii) the Capital Stock of a Person that is at the time, or becomes, a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary.
"Additional Senior Subordinated Notes" means up to $150.0 million in
aggregate principal amount of Senior Subordinated Notes (other than the Initial
Senior Subordinated Notes) issued under this Senior Subordinated Note Indenture
in accordance with Sections 2.02 and 4.09 hereof.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Senior Subordinated Note,
the rules and procedures of the Depositary, Euroclear and Cedel that apply to
such transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than sales of inventory in the ordinary course of
business consistent with past practices (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Section 4.15 and/or Section 5.01 hereof and not by the provisions
of Section 4.10 hereof), and (ii) the issue or sale by the Company or any of its
Restricted Subsidiaries of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $5.0 million or (b) for Net Proceeds in excess of $5.0
million. Notwithstanding the foregoing, the following items shall not be deemed
to be Asset Sales: (i) a transfer of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (ii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (iii) a Restricted Payment that
is permitted by, or an Investment that is not prohibited by Section 4.07 hereof,
(iv) a disposition of Cash Equivalents or obsolete equipment, (v) foreclosures
on assets, (vi) the sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof and (vii) the factoring of accounts
receivable arising in the ordinary course of business pursuant to arrangements
customary in the industry.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Bengalla Joint Venture" means Bengalla Mining Co. Pty Limited,
Bengalla Agricultural Co. Pty Limited and Bengalla Coal Sales Co. Pty Ltd.,
which are the joint venture companies related to the Bengalla mine in New South
Wales, Australia.
"Black Beauty Coal Company" means the Indiana general partnership
among Thoroughbred, L.L.C., Black Beauty Resources, Inc. and Pittsburg and
Midway Coal Mining Co., and any Person collectively owned by those three
partners including, but not limited to, Eagle Coal Company and Falcon Coal
Company.
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
2
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or insured by
the U.S. Government or any agency thereof, (b) certificates of deposit and time
deposits with maturities of one year or less from the date of acquisition and
overnight bank deposits of any lender under the Senior Credit Facilities or of
any commercial bank having capital and surplus in excess of $500.0 million, (c)
repurchase obligations of any lender under the Senior Credit Facilities or of
any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to securities
issued or fully guaranteed or insured by the U.S. Government, (d) commercial
paper of a domestic issuer rated at least A-2 by Standard & Poor's Rating Group
or P-2 by ▇▇▇▇▇'▇ Investor Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of Standard & Poor's Rating Group
and ▇▇▇▇▇'▇ Investor Service, Inc. cease publishing ratings of investments, (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by Standard &
Poor's Rating Group or A by ▇▇▇▇▇'▇ Investor Service, Inc., (f) securities with
maturities of one year or less from the date of acquisition backed by standby
letters of credit issued by any lender under the Senior Credit Facilities or any
commercial bank satisfying the requirements of clause (b) of this definition or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
"Cedel" means Cedel Bank, SA.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act) other than a Principal or a Related Party of a Principal (as
defined below), (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company, (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than the Principals and their
Related Parties, becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is currently exercisable or is exercisable
only upon the occurrence of a subsequent condition), directly or indirectly, of
more than 50% of the Voting Stock of the Company (measured by voting power
rather than number of shares) or (iv) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors.
3
"Company" means P&L Coal Holdings Corporation, and any and all
successors thereto.
"Citizens Power" means Citizens Power LLC, a Delaware limited
liability company and its direct and indirect Subsidiaries.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i)
provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (ii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs, deferred financing fees and
original issue discount, noncash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (iii) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale (to the extent such losses were
deducted in computing such Consolidated Net Income), plus (iv) depreciation,
depletion, amortization (including amortization of goodwill and other
intangibles) and other noncash expenses (including, without limitation,
writedowns and impairment of property, plant and equipment and intangibles and
other long-lived assets) (excluding any such noncash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, depletion, amortization and other noncash expenses were deducted
in computing such Consolidated Net Income, minus (v) noncash items increasing
such Consolidated Net Income for such period (other than accruals in accordance
with GAAP), plus (vi) without duplication for amounts otherwise included in
Consolidated Cash Flow, the amount of the Company's and its Restricted
Subsidiaries' proportionate share of the Consolidated Cash Flow of Black Beauty
Coal Company and its Subsidiaries for such period (calculated in proportion to
the Company's and its Restricted Subsidiaries' common equity ownership), in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income or profits
of, and the depreciation, depletion and amortization and other noncash expenses
of, a Restricted Subsidiary that is not a Senior Subordinated Note Guarantor
shall be added to Consolidated Net Income to compute Consolidated Cash Flow only
to the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income of any Person that is not a Subsidiary or that
is accounted for by the equity method of accounting shall be included only to
the extent of the amount of dividends or distributions paid in cash to the
referent Person or a Restricted Subsidiary thereof, (ii) the Net Income of any
Restricted Subsidiary that is not a Senior Subordinated Note Guarantor shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms
4
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded, (iv) the cumulative effect of a change in accounting principles
shall be excluded, and (v) the Net Income (or loss) of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the Company or one
of its Restricted Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of the closing of the Acquisition or (ii) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Corporate Trust Office of the Senior Subordinated Note Trustee" shall
be at the address of the Senior Subordinated Note Trustee specified in Section
12.02 hereof or such other address as to which the Senior Subordinated Note
Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company or any of its
Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the Senior Credit Facilities) or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time. Indebtedness under Credit Facilities outstanding on the
date on which Senior Subordinated Notes are first issued and authenticated under
this Senior Subordinated Note Indenture shall be deemed to have been incurred on
such date in reliance on the exception provided by clause (i) of the definition
of Permitted Indebtedness.
"Custodian" means the Senior Subordinated Note Trustee, as custodian
with respect to the Senior Subordinated Notes in global form, or any successor
entity thereto.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Senior Subordinated Note" means a certificated Senior
Subordinated Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06 hereof, in the form of Exhibit A1 hereto except
that such Senior Subordinated Note shall not bear the Global Senior Subordinated
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Senior Subordinated Note" attached thereto.
"Depositary" means, with respect to the Senior Subordinated Notes
issuable or issued in whole or in part in global form, the Person specified in
Section 2.03 hereof as the Depositary with respect to the Senior Subordinated
Notes, and any and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provision of this Senior
Subordinated Note Indenture.
"Designated Noncash Consideration" means the fair market value of
noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officer's Certificate, setting
5
forth the basis of such valuation, executed by the principal executive officer
and the principal financial officer of the Company, less the amount of cash or
Cash Equivalents received in connection with a sale of such Designated Noncash
Consideration.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Senior Subordinated Notes mature; provided, however, that any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof.
"Domestic Subsidiary" means a Subsidiary that is (i) formed under the
laws of the United States of America or a state or territory thereof or (ii) as
of the date of determination, treated as a domestic entity or a partnership or a
division of a domestic entity for United States federal income tax purposes.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of equity
securities (excluding Disqualified Stock) of the Company, other than any private
sales to an Affiliate of the Company.
"Escrow Account" means the escrow account maintained pursuant to the
Escrow Letter.
"Escrow Letter" means that certain escrow letter dated March 2, 1998,
by and among Lazard Brothers & Co., Limited, The Energy Group PLC, Peabody
Investments Inc. and P&L Coal Holdings Corporation.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Exchange Senior Subordinated Notes" means the Senior Subordinated
Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.
"Existing Citizens Power Investment" means the Investments in Citizens
Power by the Company and its Restricted Subsidiaries as of the date of the
closing of the Acquisition.
6
"Existing Indebtedness" means up to $292.5 million in aggregate
principal amount of Indebtedness of the Company and its Restricted Subsidiaries
(other than Indebtedness under the Senior Credit Facilities, the Senior Notes,
the Senior Subordinated Notes and related Guarantees) in existence on the date
of the closing of the Acquisition, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the
sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount, noncash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letters of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations, but excluding amortization of debt
issuance costs) and (ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) any
interest expense on the portion of Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon) and (iv) the product of (a) all
dividend payments, whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than dividend payments
on Equity Interests payable solely in Equity Interests of the Company (other
than Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, times (b) a fraction, the numerator of which is one and the denominator
of which is one minus the effective combined federal, state and local tax rate
of such Person for such period, expressed as a decimal, in each case, for the
Company and its Restricted Subsidiaries on a consolidated basis and in
accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person and its
Restricted Subsidiaries for any period, the ratio of the Consolidated Cash Flow
of such Person and its Restricted Subsidiaries for such period to the Fixed
Charges of such Person and its Restricted Subsidiaries for such period. In the
event that the referrent Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees or redeems any Indebtedness (other than revolving credit
borrowings) or issues or redeems preferred stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated but
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at the beginning of
the applicable four-quarter reference period. In addition, for purposes of
making the computation referred to above, (i) acquisitions that have been made
by the Company or any of its Restricted Subsidiaries, including through mergers
or consolidations and including any related financing transactions and including
pro forma cost savings permitted by Article 11 of Regulation S-X, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, and (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, and (iii) the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the referent Person
or any of its Restricted Subsidiaries following the Calculation Date.
7
"Foreign Subsidiaries" means Subsidiaries of the Company that are not
Domestic Subsidiaries.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date hereof.
"Global Senior Subordinated Note Legend" means the legend set forth in
Section 2.06(g)(ii), which is required to be placed on all Global Senior
Subordinated Notes issued under this Senior Subordinated Note Indenture.
"Global Senior Subordinated Notes" means, individually and
collectively, each of the Restricted Global Senior Subordinated Notes and the
Unrestricted Global Senior Subordinated Notes, in the form of Exhibits A1 and A2
hereto issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or
2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange, interest rates or commodity prices,
in each case for the purpose of risk management and not for speculation.
"Holder" means a Person in whose name a Senior Subordinated Note is
registered.
"IAI Global Senior Subordinated Note" means the global Senior
Subordinated Note in the form of Exhibit A1 hereto bearing the Global Senior
Subordinated Note Legend and the Private Placement Legend and deposited with or
on behalf of and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Senior Subordinated Notes sold to Institutional Accredited Investors.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations, if
and to the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien
8
on any asset of such Person (whether or not such Indebtedness is assumed by such
Person) and, to the extent not otherwise included, the Guarantee by such Person
of any indebtedness of any other Person, but excluding from the definition of
"Indebtedness," any of the foregoing that constitutes (1) an accrued expense,
(2) trade payables and (3) Obligations in respect of reclamation, workers'
compensation, including black lung, pensions and retiree health care, in each
case to the extent not overdue for more than 90 days. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (ii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Senior Subordinated Note through a Participant.
"Initial Senior Subordinated Notes" means $500.0 million in aggregate
principal amount of Senior Subordinated Notes issued under this Senior
Subordinated Note Indenture on the date hereof.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees, other than performance guarantees provided
for the benefit of Citizens Power, of any portion of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal office of
the Trustee is located or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Senior Subordinated Notes for use
by such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
9
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Marketable Securities" means, with respect to any Asset Sale, any
readily marketable equity securities that are (i) traded on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market; and (ii)
issued by a corporation having a total equity market capitalization of not less
than $250.0 million; provided that the excess of (A) the aggregate amount of
securities of any one such corporation held by the Company and any Restricted
Subsidiary over (B) ten times the average daily trading volume of such
securities during the 20 immediately preceding trading days shall be deemed not
to be Marketable Securities; as determined on the date of the contract relating
to such Asset Sale.
"Net Income" means, with respect to any Person, the net income or loss
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain or loss,
together with any related provision for taxes on such gain or loss, realized in
connection with (a) any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions) or (b) the disposition of any
securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries and (ii) any extraordinary or nonrecurring gain or loss, together
with any related provision for taxes on such extraordinary or nonrecurring gain
or loss.
"Net Proceeds" means the aggregate proceeds (cash or property)
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any noncash consideration received in any Asset Sale) or
the sale or disposition of any Investment, net of the direct costs relating to
such Asset Sale, sale or disposition, (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"Non-Guarantor Subsidiaries" means (i) Citizens Power and its direct
and indirect Subsidiaries, (ii) the Company's future Unrestricted Subsidiaries
and (iii) the Company's current and future Foreign Subsidiaries.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) other than a pledge of the Equity Interests of any
Unrestricted Subsidiaries, (b) is directly or indirectly liable (as a guarantor
or otherwise) other than by virtue of a pledge of the Equity Interests of any
Unrestricted Subsidiaries, or (c) constitutes the lender; and (ii) no default
with respect to which (including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Senior Subordinated Notes being offered hereby) of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
10
"Obligations" means any principal, premium (if any), interest,
penalties, fees, charges, expenses, indemnifications, reimbursement obligations,
damages, Guarantees and other liabilities and amounts payable under the
documentation governing any Indebtedness or in respect thereto.
"Offering" means the offering of the Senior Subordinated Notes by the
Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officer's Certificate" means a certificate signed on behalf of the
Company by an Officer of the Company who must be a vice-president, the principal
financial officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Sections 12.04 and 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Senior Subordinated Note Trustee, that meets the
requirements of Sections 12.04 and 12.05 hereof. The counsel may be an employee
of or counsel to the Company, any Subsidiary of the Company or the Senior
Subordinated Note Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Permitted Business" means coal production, coal mining, coal
brokering, coal transportation, mine development, power marketing, electricity
generation, power/energy sales and trading, energy transactions/asset
restructurings, risk management products associated with energy, fuel/power
integration and other energy related businesses, ash disposal, environmental
remediation, coal, natural gas, petroleum or other fossil fuel exploration,
production, marketing, transportation and distribution and other related
businesses, and activities of the Company and its Subsidiaries as of the date of
the closing of the Acquisition and any business or activity that is reasonably
similar thereto or a reasonable extension, development or expansion thereof or
ancillary thereto.
"Permitted Investments" means (a) any Investment in the Company or in
a Restricted Subsidiary of the Company; (b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary of the Company in
a Person, if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary of the Company or (ii) such Person, in one transaction or a series of
related transactions, is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company; (d) any acquisition of
assets solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (e) any Investment existing on the date of
the closing of the Acquisition (an "Existing Investment") and any Investment
that replaces, refinances or refunds an Existing Investment, provided that the
new Investment is in an amount that does not exceed the amount replaced,
refinanced or refunded and is made in the same Person as the Investment
replaced, refinanced or refunded, (f) advances to employees not in excess of
$10.0 million outstanding at any one time; (g) Hedging Obligations permitted
under clause (ix) of Section 4.09 hereof; (h) loans and advances to officers,
directors
11
and employees for business-related travel expenses, moving expenses and other
similar expenses, in each case incurred in the ordinary course of business; (i)
any Investment in a Permitted Business (whether or not an Investment in an
Unrestricted Subsidiary) having an aggregate fair market value, when taken
together with all other Investments made pursuant to this clause (i), does not
exceed in aggregate amount the sum of (1) 10% of Total Assets at the time of
such Investment (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value) plus (2)
100% of the Net Proceeds from the sale or disposition of any Investment
previously made pursuant to this clause (i) or 100% of the amount of any
dividend, distribution or payment from any such Investment, net of income taxes
paid or payable in respect thereof, in each case up to the amount of the
Investment that was made pursuant to this clause (i) and 50% of the amount of
such Net Proceeds or 50% of such dividends, distributions or payments, in each
case received in excess of the amount of the Investments made pursuant to this
clause (i); (j) guarantees (including Guarantees) of Indebtedness permitted by
Section 4.09 hereof; (k) any Investment acquired by the Company or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (B) as a result
of the transfer of title with respect to any secured Investment in default as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to such secured Investment; (l) any Investment in Black Beauty Coal
Company having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (l), that are at the time outstanding
not to exceed $50.0 million (with any write-down or write-off of any such
Investment deemed to remain outstanding); (m) Investments in Citizens Power
having an aggregate fair market value, taken together with all other Investments
made pursuant to this clause (m), that are at that time outstanding not to
exceed $50.0 million at the time of such Investment (with the fair market value
of each Investment being measured at the time made and without giving effect to
subsequent changes in value); (n) any Investment in the Bengalla Joint Venture
and the Warkworth Associates Joint Venture having an aggregate fair market
value, taken together with all other Investments made pursuant to this clause
(n), that are at the time outstanding, not to exceed $25.0 million (with any
write-down or write-off of any such Investment deemed to remain outstanding);
(o) that portion of any Investment by the Company or a Restricted Subsidiary in
a Permitted Business to the extent that the Company or such Restricted
Subsidiary will receive in a substantially concurrent transaction an amount in
cash equal to the amount of such Investment (or the fair market value of such
Investment), net of any obligation to pay taxes or other amounts in respect of
the receipt of such cash; provided that the receipt of such cash does not carry
any obligation by the Company or such Restricted Subsidiary to repay or return
such cash; and (p) the forgiveness or cancellation of any payable due from
Citizens Power and its direct and indirect Subsidiaries outstanding on the date
of the closing of the Acquisition; provided, however, that with respect to any
Investment, the Company may, in its sole discretion, allocate all or any portion
of any Investment to one or more of the above clauses so that the entire
Investment would be a Permitted Investment.
"Permitted Liens" means (i) Liens securing Indebtedness under Credit
Facilities that were permitted by the terms of this Senior Subordinated Note
Indenture to be incurred; (ii) Liens in favor of the Company; (iii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company; (iv) Liens on property
existing at the time of acquisition thereof by the Company or any Restricted
Subsidiary of the Company, provided that such Liens were in existence prior to
the contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or
12
other obligations of a like nature incurred in the ordinary course of business;
(vi) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other kinds of
social security; (vii) Liens existing on the date of the closing of the
Acquisition; (viii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (ix) Liens on assets of
Senior Subordinated Note Guarantors to secure Senior Debt of such Senior
Subordinated Note Guarantors that was permitted by this Senior Subordinated Note
Indenture to be incurred; (x) Liens incurred in the ordinary course of business
of the Company or any Restricted Subsidiary of the Company with respect to
obligations that (a) are not incurred in connection with the borrowing of money
or the obtaining of advances or credit (other than trade credit in the ordinary
course of business) and (b) do not in the aggregate materially detract from the
value of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary; (xi) Liens on assets of
Foreign Subsidiaries to secure Indebtedness that was permitted by this Senior
Subordinated Note Indenture to be incurred; (xii) statutory liens of landlords,
mechanics, suppliers, vendors, warehousemen, carriers or other like Liens
arising in the ordinary course of business; (xiii) judgment Liens not giving
rise to an Event of Default so long as any appropriate legal proceeding that may
have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such legal proceeding may be
initiated shall not have expired; (xiv) easements, rights-of-way, zoning and
similar restrictions and other similar encumbrances or title defects incurred or
imposed, as applicable, in the ordinary course of business and consistent with
industry practices which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the property
subject thereto (as such property is used by the Company or its Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or such
Subsidiaries; provided, however, that any such Liens are not incurred in
connection with any borrowing of money or any commitment to loan any money or to
extend any credit; (xv) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (vi) of the second paragraph of Section 4.09
hereof and other purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary acquired in the ordinary course of
business; provided that such Liens are only secured by such property or assets
so acquired or improved (including, in the case of the acquisition of Capital
Stock of a Person who becomes a Restricted Subsidiary, Liens on the assets of
the Person whose Capital Stock was so acquired); (xvi) Liens securing
Indebtedness under Hedging Obligations; provided that such Liens are only
secured by property or assets that secure the Indebtedness subject to the
Hedging Obligation; (xvii) Liens to secure Indebtedness permitted by clause (xv)
of the second paragraph of Section 4.09 hereof; and (xviii) Liens on the Equity
Interests of Unrestricted Subsidiaries securing Obligations of Unrestricted
Subsidiaries not otherwise prohibited by this Senior Subordinated Note
Indenture..
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest and premium, if any, on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
13
refunded is subordinated in right of payment to the Senior Subordinated Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Senior
Subordinated Notes on terms at least as favorable to the Holders of Senior
Subordinated Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Principals" means ▇▇▇▇▇▇ Brothers Merchant Banking Partners II L.P.,
any of its respective Affiliates and executive officers of the Company as of the
date of the closing of the Acquisition.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture except where otherwise permitted by the
provisions of this Senior Subordinated Note Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of May 18, 1998, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Senior Subordinated Notes, one or more registration rights agreements between
the Company and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the
Company to the purchasers of Additional Senior Subordinated Notes to register
such Additional Senior Subordinated Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Senior Subordinated Note" means a Regulation S
Temporary Global Senior Subordinated Note or Regulation S Permanent Global
Senior Subordinated Note, as appropriate.
"Regulation S Permanent Global Senior Subordinated Note" means a
permanent global Senior Subordinated Note in the form of Exhibit A1 hereto
bearing the Global Senior Subordinated Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Senior Subordinated Note
upon expiration of the Restricted Period.
"Regulation S Temporary Global Senior Subordinated Note" means a
temporary global Senior Subordinated Note in the form of Exhibit A2 hereto
bearing the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Senior
Subordinated Notes initially sold in reliance on Rule 903 of Regulation S.
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"Related Party" with respect to any Principal means (A) any
controlling stockholder, 80% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Responsible Officer" when used with respect to the Senior
Subordinated Note Trustee, means any officer within the Corporate Trust
Administration of the Senior Subordinated Note Trustee (or any successor group
of the Senior Subordinated Note Trustee) or any other officer of the Senior
Subordinated Note Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Definitive Senior Subordinated Note" means a Definitive
Senior Subordinated Note bearing the Private Placement Legend.
"Restricted Global Senior Subordinated Note" means a Global Senior
Subordinated Note bearing the Private Placement Legend.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facilities" means those certain Senior Credit
Facilities, dated as of May 14, 1998 by and among the Company, the Senior Note
Guarantors, ▇▇▇▇▇▇ Commercial Paper Inc., as Arranger, Syndication Agent and the
Administrative Agent and the other lenders party thereto, including any related
notes, guarantees, collateral documents, letters of credit, instruments and
agreements executed in connection therewith (and any appendices, exhibits or
schedules to any of the foregoing), and in each case as amended, modified,
supplemented, restated, renewed, refunded, replaced, restructured, repaid or
refinanced from time to time (whether with the original agents and lenders or
other agents and lenders or otherwise, and whether provided under the original
credit agreement or other credit agreements or otherwise).
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"Senior Note Indenture" means that certain Senior Note Indenture,
dated as of the date hereof, between the Company and State Street Bank and Trust
Company, as Senior Note Trustee, as amended or supplemented from time to time,
relating to the Senior Notes.
"Senior Notes" means the Company's 8-7/8% Senior Notes due 2008 issued
concurrently pursuant to the Senior Note Indenture.
"Senior Subordinated Note Guarantors" means each of (i) the Company's
Domestic Subsidiaries at the date of the closing of the Acquisition, other than
Citizens Power and the Subsidiaries of Citizens Power at the date of the Senior
Subordinated Note Indenture and (ii) any other subsidiary that executes a
Subordinated Subsidiary Guarantee in accordance with the provisions of this
Senior Subordinated Note Indenture, and their respective successors and assigns.
"Senior Subordinated Note Indenture" means this Senior Subordinated
Note Indenture, as amended or supplemented from time to time.
"Senior Subordinated Note Trustee" means the party named as such above
until a successor replaces it in accordance with the applicable provisions of
this Senior Subordinated Note Indenture and thereafter means the successor
serving hereunder.
"Senior Subordinated Notes" has the meaning assigned to it in the
preamble to this Senior Subordinated Note Indenture.
"Senior Subsidiary Guarantees" mean the guarantees endorsed on the
Senior Notes by the Senior Note Guarantors.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Senior Subordinated Note Indenture.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Subsidiary Guarantees" mean the guarantees endorsed on
the Senior Subordinated Notes by the Senior Subordinated Note Guarantors.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or Senior
Subordinated Note Trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a) the sole general
partner or the managing general partner of which is such Person or
16
a Subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb) as in effect on the date on which this Senior Subordinated Note
Indenture is qualified under the TIA.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
GAAP, as shown on the most recently available consolidated balance sheet of the
Company and its Restricted Subsidiaries.
"Transaction Documents" means the documents related to (i) the
Acquisition (including, without limitation, the purchase agreement, the
participation agreement and the escrow agreement), (ii) the Senior Credit
Facilities and (iii) the offering of the Senior Notes and the Senior
Subordinated Notes.
"Treasury Rate" means the yield to maturity at the time of the
computation of the United States Treasury securities with a constant maturity
(as compiled by and published in the most recent Federal Reserve Statistical
Release H.15(519), which has become publicly available at least two Business
Days prior to the date fixed for redemption (or if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the then remaining average life to May 15, 2003; provided,
however, that if the average life of such Senior Subordinated Note is not equal
to the constant maturity of the United States Treasury security for which weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the average life of such Senior Subordinated Note is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Unrestricted Global Senior Subordinated Note" means a permanent
global Senior Subordinated Note in the form of Exhibit A1 attached hereto that
bears the Global Senior Subordinated Note Legend and that has the "Schedule of
Exchanges of Interests in the Global Senior Subordinated Note" attached thereto,
and that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Senior Subordinated Notes that do not bear
the Private Placement Legend.
"Unrestricted Definitive Senior Subordinated Note" means one or more
Definitive Senior Subordinated Notes that do not bear and are not required to
bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) Citizens Power and any direct or
indirect Subsidiary of Citizens Power on the date hereof and (ii) any Subsidiary
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution; but only to the extent that such Person: (a) has
no Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; (c) is a Person with respect to which
neither the Company nor any of its Restricted Subsidiaries has any obligation
(x) to subscribe for additional Equity Interests in Unrestricted Subsidiaries
(except with respect to Permitted Investments) or (y) to maintain or preserve
such Person's net worth; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any
17
Indebtedness of the Company or any of its Restricted Subsidiaries; provided,
however, that the Company and its Restricted Subsidiaries may guarantee the
performance of Unrestricted Subsidiaries in the ordinary course of business
except for guarantees of Obligations in respect of borrowed money. Any such
designation by the Board of Directors shall be evidenced to the Senior
Subordinated Note Trustee by filing with the Senior Subordinated Note Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.07 hereof.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act .
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Warkworth Associates Joint Venture" means Warkworth Coal Sales
Ltd., Warkworth Pastoral Co. Pty, Limited and Warkworth Mining Limited, which
are the joint venture companies related to the Warkworth mine in New South
Wales, Australia.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
Section 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"................................... 4.11
"Asset Sale".............................................. 4.10
"Asset Sale Offer"........................................ 3.09
"Authentication Order".................................... 2.02
"Bankruptcy Law".......................................... 4.01
"Change of Control Offer"................................. 4.15
"Change of Control Payment"............................... 4.15
"Change of Control Payment Date".......................... 4.15
"Covenant Defeasance"..................................... 8.03
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"Event of Default"........................................ 6.01
"Excess Proceeds"......................................... 4.10
"incur"................................................... 4.09
"Legal Defeasance"........................................ 8.02
"Offer Amount"............................................ 3.09
"Offer Period"............................................ 3.09
"Paying Agent"............................................ 2.03
"Permitted Debt".......................................... 4.09
"Purchase Date"........................................... 3.09
"Registrar"............................................... 2.03
"Restricted Payments"..................................... 4.07
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Senior Subordinated Note Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a
part of this Senior Subordinated Note Indenture.
The following TIA terms used in this Senior Subordinated Note
Indenture have the following meanings:
"Indenture securities" means the Senior Subordinated Notes;
"Indenture security Holder" means a Holder of a Senior
Subordinated Note;
"Indenture to be qualified" means this Senior Subordinated Note
Indenture;
"Indenture Trustee" or "institutional Trustee" means the Senior
Subordinated Note Trustee; and
"obligor" on the Senior Subordinated Notes and the Subordinated
Subsidiary Guarantees means the Company and the Senior Subordinated Note
Guarantors, respectively, and any successor obligor upon the Senior Subordinated
Notes and the Subordinated Subsidiary Guarantees, respectively.
All other terms used in this Senior Subordinated Note Indenture
that are defined by the TIA, defined by TIA reference to another statute or
defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
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(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2.
THE SENIOR SUBORDINATED NOTES
Section 2.01. FORM AND DATING.
(a) General.
The Senior Subordinated Notes and the Senior Subordinated Note
Trustee's certificate of authentication shall be substantially in the form of
Exhibits A1 and A2 hereto. The Senior Subordinated Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Senior Subordinated Note shall be dated the date of its authentication. The
Senior Subordinated Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Senior Subordinated
Notes shall constitute, and are hereby expressly made, a part of this Senior
Subordinated Note Indenture and the Company, the Senior Subordinated Note
Guarantors and the Senior Subordinated Note Trustee, by their execution and
delivery of this Senior Subordinated Note Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent any
provision of any Senior Subordinated Note conflicts with the express provisions
of this Senior Subordinated Note Indenture, the provisions of this Senior
Subordinated Note Indenture shall govern and be controlling.
(b) Global Senior Subordinated Notes.
Senior Subordinated Notes issued in global form shall be
substantially in the form of Exhibits A1 or A2 attached hereto (including the
Global Senior Subordinated Note Legend thereon and the "Schedule of Exchanges of
Interests in the Global Senior Subordinated Note" attached thereto). Senior
Subordinated Notes issued in definitive form shall be substantially in the form
of Exhibit A1 attached hereto (but without the Global Senior Subordinated Note
Legend thereon and without the "Schedule of Exchanges of Interests in the Global
Senior Subordinated Note" attached thereto). Each Global Senior Subordinated
Note shall represent such of the outstanding Senior Subordinated Notes as shall
be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Senior Subordinated Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Senior Subordinated Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Senior Subordinated Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Senior
Subordinated Notes represented thereby shall be made by the Senior Subordinated
Note Trustee or the Custodian, at the direction of the Senior Subordinated Note
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
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(c) Temporary Global Senior Subordinated Notes.
Senior Subordinated Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Senior Subordinated Note, which shall be deposited on behalf of the
purchasers of the Senior Subordinated Notes represented thereby with the Senior
Subordinated Note Trustee, at its New York office, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear
or Cedel Bank, duly executed by the Company and authenticated by the Senior
Subordinated Note Trustee as hereinafter provided. The Restricted Period shall
be terminated upon the receipt by the Senior Subordinated Note Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedel Bank certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Senior Subordinated Note (except to
the extent of any beneficial owners thereof who acquired an interest therein
during the Restricted Period pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Global Senior Subordinated Note or an IAI Global Senior
Subordinated Note bearing a Private Placement Legend, all as contemplated by
Section 2.06(a)(ii) hereof), and (ii) an Officer's Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Senior Subordinated Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Senior Subordinated Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Senior Subordinated Notes, the Senior Subordinated
Note Trustee shall cancel the Regulation S Temporary Global Senior Subordinated
Note. The aggregate principal amount of the Regulation S Temporary Global Senior
Subordinated Note and the Regulation S Permanent Global Senior Subordinated
Notes may from time to time be increased or decreased by adjustments made on the
records of the Senior Subordinated Note Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall
be applicable to transfers of beneficial interests in the Regulation S Temporary
Global Senior Subordinated Note and the Regulation S Permanent Global Senior
Subordinated Notes that are held by Participants through Euroclear or Cedel
Bank.
Section 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Senior Subordinated Notes for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Senior Subordinated Note no
longer holds that office at the time a Senior Subordinated Note is
authenticated, the Senior Subordinated Note shall nevertheless be valid.
A Senior Subordinated Note shall not be valid until authenticated
by the manual signature of the Senior Subordinated Note Trustee. The signature
shall be conclusive evidence that the Senior Subordinated Note has been
authenticated under this Senior Subordinated Note Indenture.
21
The Senior Subordinated Note Trustee shall, upon a written order
of the Company signed by one Officer (an "Authentication Order"), authenticate
Senior Subordinated Notes for original issue up to the aggregate principal
amount stated in paragraph 4 of the Senior Subordinated Notes. The aggregate
principal amount of Senior Subordinated Notes outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
The Senior Subordinated Note Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Senior Subordinated Notes. An
authenticating agent may authenticate Senior Subordinated Notes whenever the
Senior Subordinated Note Trustee may do so. Each reference in this Senior
Subordinated Note Indenture to authentication by the Senior Subordinated Note
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with Holders or an Affiliate of the Company.
Section 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Senior
Subordinated Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Senior Subordinated Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Senior Subordinated Notes and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents.
The term "Registrar" includes any co-registrar and the term "Paying Agent"
includes any additional paying agent. The Company may change any Paying Agent
or Registrar without notice to any Holder. The Company shall notify the Senior
Subordinated Note Trustee in writing of the name and address of any Agent not a
party to this Senior Subordinated Note Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Senior
Subordinated Note Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Senior Subordinated
Notes.
The Company initially appoints the Senior Subordinated Note
Trustee to act as the Registrar and Paying Agent and to act as Custodian with
respect to the Global Senior Subordinated Notes.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Senior
Subordinated Note Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Senior Subordinated Note Trustee all
money held by the Paying Agent for the payment of principal, premium or
Liquidated Damages, if any, or interest on the Senior Subordinated Notes, and
will notify the Senior Subordinated Note Trustee of any default by the Company
in making any such payment. While any such default continues, the Senior
Subordinated Note Trustee may require a Paying Agent to pay all money held by it
to the Senior Subordinated Note Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Senior Subordinated Note
Trustee. Upon payment over to the Senior Subordinated Note Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Senior Subordinated Note
Trustee shall serve as Paying Agent for the Senior Subordinated Notes.
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Section 2.05. HOLDER LISTS.
The Senior Subordinated Note Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders and shall otherwise comply with TIA (S)
312(a). If the Senior Subordinated Note Trustee is not the Registrar, the
Company shall furnish to the Senior Subordinated Note Trustee at least seven
Business Days before each interest payment date and at such other times as the
Senior Subordinated Note Trustee may request in writing, a list in such form and
as of such date as the Senior Subordinated Note Trustee may reasonably require
of the names and addresses of the Holders of Senior Subordinated Notes and the
Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Senior Subordinated Notes.
A Global Senior Subordinated Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary. All Global Senior Subordinated Notes will be
exchanged by the Company for Definitive Senior Subordinated Notes if (i) the
Company delivers to the Senior Subordinated Note Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary or (ii) the Company in
its sole discretion determines that the Global Senior Subordinated Notes (in
whole but not in part) should be exchanged for Definitive Senior Subordinated
Notes and delivers a written notice to such effect to the Senior Subordinated
Note Trustee; provided that in no event shall the Regulation S Temporary Global
Senior Subordinated Note be exchanged by the Company for Definitive Senior
Subordinated Notes prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Senior Subordinated Notes
shall be issued in such names as the Depositary shall instruct the Senior
Subordinated Note Trustee. Global Senior Subordinated Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Senior Subordinated Note authenticated and delivered in
exchange for, or in lieu of, a Global Senior Subordinated Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Senior
Subordinated Note. A Global Senior Subordinated Note may not be exchanged for
another Senior Subordinated Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Senior Subordinated Note may be
transferred and exchanged as provided in Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Senior Subordinated Notes.
The transfer and exchange of beneficial interests in the Global
Senior Subordinated Notes shall be effected through the Depositary, in
accordance with the provisions of this Senior Subordinated Note Indenture and
the Applicable Procedures. Beneficial interests in the Restricted Global Senior
Subordinated Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers
of beneficial interests in the Global Senior Subordinated
23
Notes also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Senior
Subordinated Note. Beneficial interests in any Restricted Global Senior
Subordinated Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted Global Senior
Subordinated Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, transfers of beneficial interests in
the Temporary Regulation S Global Senior Subordinated Note may not be made
to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Beneficial interests in any Unrestricted Global
Senior Subordinated Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Senior Subordinated Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Senior Subordinated Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must deliver
to the Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Senior Subordinated Note
in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Senior Subordinated Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Senior Subordinated Note shall be registered to
effect the transfer or exchange referred to in (1) above; provided that in
no event shall Definitive Senior Subordinated Notes be issued upon the
transfer or exchange of beneficial interests in the Regulation S Temporary
Global Senior Subordinated Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon consummation
of an Exchange Offer by the Company in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Senior Subordinated Notes.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Senior Subordinated Notes contained in this
Senior Subordinated Note Indenture and the Senior Subordinated Notes or
otherwise applicable under the Securities Act, the Senior Subordinated Note
Trustee shall adjust the principal amount of the relevant Global Senior
Subordinated Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Senior Subordinated Note. A beneficial interest in any Restricted
Global Senior Subordinated Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted
Global Senior Subordinated Note if the transfer complies with the
requirements of Section 2.06(b)(ii) above and the Registrar receives the
following:
24
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Senior Subordinated Note, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Senior
Subordinated Note or the Regulation S Global Senior Subordinated Note,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Senior Subordinated Note, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Senior Subordinated Note for Beneficial Interests in the
Unrestricted Global Senior Subordinated Note. A beneficial interest in any
Restricted Global Senior Subordinated Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Senior
Subordinated Note or transferred to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Senior
Subordinated Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal or via the
Depositary's book-entry system that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the Exchange Senior
Subordinated Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to exchange
such beneficial interest for a beneficial interest in an
Unrestricted Global Senior Subordinated Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
25
Unrestricted Global Senior Subordinated Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities
Act and state "blue sky" laws and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Senior Subordinated Note has not yet
been issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Senior Subordinated Note
Trustee shall authenticate one or more Unrestricted Global Senior Subordinated
Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Senior Subordinated
Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Senior
Subordinated Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Senior
Subordinated Notes.
(i) Beneficial Interests in Restricted Global Senior Subordinated
Notes to Restricted Definitive Senior Subordinated Notes. If any holder of
a beneficial interest in a Restricted Global Senior Subordinated Note
proposes to exchange such beneficial interest for a Restricted Definitive
Senior Subordinated Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Senior Subordinated Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to exchange such
beneficial interest for a Restricted Definitive Senior Subordinated
Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
26
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Senior Subordinated Note Trustee shall cause the aggregate principal
amount of the applicable Global Senior Subordinated Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Senior Subordinated Note Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Senior
Subordinated Note in the appropriate principal amount. Any Definitive
Senior Subordinated Note issued in exchange for a beneficial interest in a
Restricted Global Senior Subordinated Note pursuant to this Section 2.06(c)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Senior Subordinated Note
Trustee shall deliver such Definitive Senior Subordinated Notes to the
Persons in whose names such Senior Subordinated Notes are so registered.
Any Definitive Senior Subordinated Note issued in exchange for a beneficial
interest in a Restricted Global Senior Subordinated Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Senior
Subordinated Note may not be exchanged for a Definitive Senior Subordinated
Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Senior Subordinated Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, except
in the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(ii) Beneficial Interests in Restricted Global Senior
Subordinated Notes to Unrestricted Definitive Senior Subordinated Notes. A
holder of a beneficial interest in a Restricted Global Senior Subordinated
Note may exchange such beneficial interest for an Unrestricted Definitive
Senior Subordinated Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Senior Subordinated Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a
27
Person participating in the distribution of the Exchange Senior
Subordinated Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to exchange
such beneficial interest for a Definitive Senior Subordinated
Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior Subordinated Note proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Senior Subordinated Note that
does not bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and state "blue sky" laws and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Senior
Subordinated Notes to Unrestricted Definitive Senior Subordinated Notes.
If any holder of a beneficial interest in an Unrestricted Global Senior
Subordinated Note proposes to exchange such beneficial interest for a
Definitive Senior Subordinated Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive Senior
Subordinated Note, then, upon satisfaction of the conditions set forth in
Section 2.06(b)(ii) hereof, the Senior Subordinated Note Trustee shall
cause the aggregate principal amount of the applicable Global Senior
Subordinated Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Senior Subordinated Note
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Senior Subordinated Note in the appropriate
principal amount. Any Definitive Senior Subordinated Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Senior Subordinated Note
Trustee shall deliver such Definitive Senior Subordinated Notes to the
Persons
28
in whose names such Senior Subordinated Notes are so registered. Any
Definitive Senior Subordinated Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Senior Subordinated Notes for
Beneficial Interests.
(i) Restricted Definitive Senior Subordinated Notes to Beneficial
Interests in Restricted Global Senior Subordinated Notes. If any Holder of
a Restricted Definitive Senior Subordinated Note proposes to exchange such
Senior Subordinated Note for a beneficial interest in a Restricted Global
Senior Subordinated Note or to transfer such Restricted Definitive Senior
Subordinated Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Senior Subordinated Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Senior
Subordinated Note proposes to exchange such Senior Subordinated Note
for a beneficial interest in a Restricted Global Senior Subordinated
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Senior Subordinated Note
is being transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Senior Subordinated Note
is being transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Senior Subordinated Note
is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Senior Subordinated Note
is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through
(D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Senior Subordinated Note
is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Senior Subordinated Note
is being transferred pursuant to an effective registration statement
under the Securities Act, a
29
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Senior Subordinated Note Trustee shall cancel the Restricted Definitive
Senior Subordinated Note, increase or cause to be increased the aggregate
principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Senior Subordinated Note, in the case of clause (B)
above, the 144A Global Senior Subordinated Note, in the case of clause (c)
above, the Regulation S Global Senior Subordinated Note, and in all other
cases, the IAI Global Senior Subordinated Note.
(ii) Restricted Definitive Senior Subordinated Notes to
Beneficial Interests in Unrestricted Global Senior Subordinated Notes. A
Holder of a Restricted Definitive Senior Subordinated Note may exchange
such Senior Subordinated Note for a beneficial interest in an Unrestricted
Global Senior Subordinated Note or transfer such Restricted Definitive
Senior Subordinated Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Senior Subordinated Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Senior Subordinated Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Senior
Subordinated Notes proposes to exchange such Senior Subordinated
Notes for a beneficial interest in the Unrestricted Global Senior
Subordinated Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive Senior
Subordinated Notes proposes to transfer such Senior Subordinated
Notes to a Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Senior
Subordinated Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and state "blue sky" laws and
30
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Senior Subordinated Note Trustee shall cancel the
Definitive Senior Subordinated Notes and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Senior
Subordinated Note.
(iii) Unrestricted Definitive Senior Subordinated Notes to
Beneficial Interests in Unrestricted Global Senior Subordinated Notes. A
Holder of an Unrestricted Definitive Senior Subordinated Note may exchange
such Senior Subordinated Note for a beneficial interest in an Unrestricted
Global Senior Subordinated Note or transfer such Definitive Senior
Subordinated Notes to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Subordinated Note at
any time. Upon receipt of a request for such an exchange or transfer, the
Senior Subordinated Note Trustee shall cancel the applicable Unrestricted
Definitive Senior Subordinated Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Senior
Subordinated Notes.
If any such exchange or transfer from a Definitive Senior
Subordinated Note to a beneficial interest is effected pursuant to
subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Global Senior Subordinated Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Senior Subordinated Note Trustee
shall authenticate one or more Unrestricted Global Senior Subordinated
Notes in an aggregate principal amount equal to the principal amount of
Definitive Senior Subordinated Notes so transferred.
(e) Transfer and Exchange of Definitive Senior Subordinated Notes for
Definitive Senior Subordinated Notes.
Upon request by a Holder of Definitive Senior Subordinated Notes and
such Holder's compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Senior
Subordinated Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Senior Subordinated Notes duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such Holder
or by his attorney, duly authorized in writing. In addition, the requesting
Holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Senior Subordinated Notes to Restricted
Definitive Senior Subordinated Notes. Any Restricted Definitive Senior
Subordinated Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive
Senior Subordinated Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (1)
thereof;
31
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Senior Subordinated Notes to
Unrestricted Definitive Senior Subordinated Notes. Any Restricted
Definitive Senior Subordinated Note may be exchanged by the Holder thereof
for an Unrestricted Definitive Senior Subordinated Note or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Senior Subordinated Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Senior Subordinated Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Senior
Subordinated Notes proposes to exchange such Senior Subordinated
Notes for an Unrestricted Definitive Senior Subordinated Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Senior
Subordinated Notes proposes to transfer such Senior Subordinated
Notes to a Person who shall take delivery thereof in the form of
an Unrestricted Definitive Senior Subordinated Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and state "blue
sky" laws and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
32
(iii) Unrestricted Definitive Senior Subordinated Notes to
Unrestricted Definitive Senior Subordinated Notes. A Holder of
Unrestricted Definitive Senior Subordinated Notes may transfer such Senior
Subordinated Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Senior Subordinated Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Senior Subordinated Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer.
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Senior Subordinated
Note Trustee shall authenticate (i) one or more Unrestricted Global Senior
Subordinated Notes in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Restricted Global Senior Subordinated
Notes tendered for acceptance by Persons that certify in the applicable Letters
of Transmittal that (x) they are not broker-dealers, (y) they are not
participating in a distribution of the Exchange Senior Subordinated Notes and
(z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange in the Exchange Offer and (ii) Definitive Senior
Subordinated Notes in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Senior Subordinated Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Senior
Subordinated Notes, the Senior Subordinated Note Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Senior
Subordinated Notes to be reduced accordingly, and the Company shall execute and
the Senior Subordinated Note Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Senior Subordinated Notes so
accepted Definitive Senior Subordinated Notes in the appropriate principal
amount.
(g) Legends
The following legends shall appear on the face of all Global Senior
Subordinated Notes and Definitive Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture unless specifically stated otherwise in the
applicable provisions of this Senior Subordinated Note Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Senior Subordinated Note and each Definitive Senior
Subordinated Note (and all Senior Subordinated Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
33
HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904
UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Senior
Subordinated Note or Definitive Senior Subordinated Note issued
pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all
Senior Subordinated Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Senior Subordinated Note Legend. Each Global Senior
Subordinated Note shall bear a legend in substantially the following form:
"THIS GLOBAL SENIOR SUBORDINATED NOTE IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE SENIOR SUBORDINATED NOTE INDENTURE
GOVERNING THIS SENIOR SUBORDINATED NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE SENIOR
SUBORDINATED NOTE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE SENIOR SUBORDINATED NOTE
INDENTURE, (II) THIS GLOBAL SENIOR SUBORDINATED NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE SENIOR
SUBORDINATED NOTE INDENTURE, (III) THIS GLOBAL SENIOR SUBORDINATED
NOTE MAY BE DELIVERED TO THE SENIOR SUBORDINATED NOTE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE SENIOR SUBORDINATED NOTE
INDENTURE AND (IV) THIS GLOBAL SENIOR SUBORDINATED NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY."
34
(iii) Regulation S Temporary Global Senior Subordinated Note
Legend. The Regulation S Temporary Global Senior Subordinated Note shall
bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL SENIOR SUBORDINATED NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED SENIOR SUBORDINATED NOTES, ARE
AS SPECIFIED IN THE SENIOR SUBORDINATED NOTE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL SENIOR SUBORDINATED NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Senior Subordinated
Notes.
At such time as all beneficial interests in a particular Global Senior
Subordinated Note have been exchanged for Definitive Senior Subordinated Notes
or a particular Global Senior Subordinated Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Senior Subordinated Note
shall be returned to or retained and canceled by the Senior Subordinated Note
Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Senior Subordinated Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Senior Subordinated Note or for
Definitive Senior Subordinated Notes, the principal amount of Senior
Subordinated Notes represented by such Global Senior Subordinated Note shall be
reduced accordingly and an endorsement shall be made on such Global Senior
Subordinated Note by the Senior Subordinated Note Trustee or by the Depositary
at the direction of the Senior Subordinated Note Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Senior Subordinated Note, such other Global Senior
Subordinated Note shall be increased accordingly and an endorsement shall be
made on such Global Senior Subordinated Note by the Senior Subordinated Note
Trustee or by the Depositary at the direction of the Senior Subordinated Note
Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Senior Subordinated Note Trustee shall
authenticate Global Senior Subordinated Notes and Definitive Senior
Subordinated Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Senior Subordinated Note or to a Holder of a
Definitive Senior Subordinated Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06,
3.09, 4.10, 4.15 and 9.05 hereof).
35
(iii) The Registrar shall not be required to register the
transfer of or exchange any Senior Subordinated Note selected for
redemption in whole or in part, except the unredeemed portion of any Senior
Subordinated Note being redeemed in part.
(iv) All Global Senior Subordinated Notes and Definitive Senior
Subordinated Notes issued upon any registration of transfer or exchange of
Global Senior Subordinated Notes or Definitive Senior Subordinated Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Senior Subordinated Note
Indenture, as the Global Senior Subordinated Notes or Definitive Senior
Subordinated Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Senior Subordinated Notes
during a period beginning at the opening of business 15 days before the day
of any selection of Senior Subordinated Notes for redemption under Section
3.02 hereof and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Senior Subordinated Note
so selected for redemption in whole or in part, except the unredeemed
portion of any Senior Subordinated Note being redeemed in part or (c) to
register the transfer of or to exchange a Senior Subordinated Note between
a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Senior Subordinated Note, the Senior Subordinated Note
Trustee, any Agent and the Company may deem and treat the Person in whose
name any Senior Subordinated Note is registered as the absolute owner of
such Senior Subordinated Note for the purpose of receiving payment of
principal of and interest on such Senior Subordinated Notes and for all
other purposes, and none of the Senior Subordinated Note Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Senior Subordinated Note Trustee shall authenticate
Global Senior Subordinated Notes and Definitive Senior Subordinated Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07. Replacement Senior Subordinated Notes
If any mutilated Senior Subordinated Note is surrendered to the Senior
Subordinated Note Trustee or the Company and the Senior Subordinated Note
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Senior Subordinated Note, the Company shall issue and the Senior
Subordinated Note Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Senior Subordinated Note if the Senior Subordinated
Note Trustee's requirements are met. If required by the Senior Subordinated
Note Trustee or the Company, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Senior Subordinated Note Trustee and
the Company to protect the Company, the Senior Subordinated Note Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Senior Subordinated Note is replaced. The Company may charge for its expenses
in replacing a Senior Subordinated Note.
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Every replacement Senior Subordinated Note is an additional obligation
of the Company and shall be entitled to all of the benefits of this Senior
Subordinated Note Indenture equally and proportionately with all other Senior
Subordinated Notes duly issued hereunder.
Section 2.08. Outstanding Senior Subordinated Notes.
The Senior Subordinated Notes outstanding at any time are all the
Senior Subordinated Notes authenticated by the Senior Subordinated Note Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Senior Subordinated Note effected by the
Senior Subordinated Note Trustee in accordance with the provisions hereof, and
those described in this Section as not outstanding. Except as set forth in
Section 2.09 hereof, a Senior Subordinated Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Senior Subordinated
Note.
If a Senior Subordinated Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Senior Subordinated Note Trustee
receives proof satisfactory to it that the replaced Senior Subordinated Note is
held by a bona fide purchaser.
If the principal amount of any Senior Subordinated Note is considered
paid under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Senior Subordinated Notes payable on that date, then on and
after that date such Senior Subordinated Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
Section 2.09. Treasury Senior Subordinated Notes.
In determining whether the Holders of the required principal amount of
Senior Subordinated Notes have concurred in any direction, waiver or consent,
Senior Subordinated Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Senior Subordinated Note
Trustee shall be protected in relying on any such direction, waiver or consent,
only Senior Subordinated Notes that the Senior Subordinated Note Trustee knows
are so owned shall be so disregarded.
Section 2.10. Temporary Senior Subordinated Notes
Until certificates representing Senior Subordinated Notes are ready
for delivery, the Company may prepare and the Senior Subordinated Note Trustee,
upon receipt of an Authentication Order, shall authenticate temporary Senior
Subordinated Notes. Temporary Senior Subordinated Notes shall be substantially
in the form of certificated Senior Subordinated Notes but may have variations
that the Company considers appropriate for temporary Senior Subordinated Notes
and as shall be reasonably acceptable to the Senior Subordinated Note Trustee.
Without unreasonable delay, the Company shall prepare and the Senior
Subordinated Note Trustee shall authenticate definitive Senior Subordinated
Notes in exchange for temporary Senior Subordinated Notes.
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Holders of temporary Senior Subordinated Notes shall be entitled to
all of the benefits of this Senior Subordinated Note Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Senior Subordinated Notes to the
Senior Subordinated Note Trustee for cancellation. The Registrar and Paying
Agent shall forward to the Senior Subordinated Note Trustee any Senior
Subordinated Notes surrendered to them for registration of transfer, exchange or
payment. The Senior Subordinated Note Trustee and no one else shall cancel all
Senior Subordinated Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy canceled Senior
Subordinated Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Senior Subordinated Notes
shall be delivered to the Company. The Company may not issue new Senior
Subordinated Notes to replace Senior Subordinated Notes that it has paid or that
have been delivered to the Senior Subordinated Note Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Senior
Subordinated Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Senior Subordinated Notes and in Section 4.01 hereof. The
Company shall notify the Senior Subordinated Note Trustee in writing of the
amount of defaulted interest proposed to be paid on each Senior Subordinated
Note and the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment date
for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Senior
Subordinated Note Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
Section 2.13. CUSIP Numbers.
The Company in issuing the Senior Subordinated Notes may use "CUSIP"
numbers (if then generally in use), and, if so, the Senior Subordinated Note
Trustee shall use CUSIP numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Senior
Subordinated Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Senior Subordinated Notes, and any such redemption shall not be affected by any
defect in or the omission of such numbers. The Company will promptly notify the
Senior Subordinated Note Trustee of any change in the CUSIP numbers.
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Senior Subordinated Note Trustee.
If the Company elects or is required to redeem Senior Subordinated
Notes pursuant to the redemption provisions of Sections 3.07 or 3.10 hereof,
respectively, it shall furnish to the Senior Subordinated Note Trustee, at least
30 days but not more than 60 days before a redemption date, an Officer's
Certificate setting forth (i) the clause of this Senior Subordinated Note
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Senior Subordinated Notes to be redeemed,
(iv) the redemption price and (v) the CUSIP numbers of the Senior Subordinated
Notes to be redeemed.
Section 3.02. Selection of Senior Subordinated Notes to Be Redeemed
If less than all of the Senior Subordinated Notes are to be redeemed
or purchased in an offer to purchase at any time, the Senior Subordinated Note
Trustee shall select the Senior Subordinated Notes to be redeemed or purchased
among the Holders of the Senior Subordinated Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Senior Subordinated Notes are listed or, if the Senior Subordinated Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Senior Subordinated Note Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Senior Subordinated Notes
to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the redemption date by the Senior
Subordinated Note Trustee from the outstanding Senior Subordinated Notes not
previously called for redemption.
The Senior Subordinated Note Trustee shall promptly notify the Company
in writing of the Senior Subordinated Notes selected for redemption and, in the
case of any Senior Subordinated Note selected for partial redemption, the
principal amount thereof to be redeemed. Senior Subordinated Notes and portions
of Senior Subordinated Notes selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Senior Subordinated Notes of a
Holder are to be redeemed, the entire outstanding amount of Senior Subordinated
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.
Except as provided in the preceding sentence, provisions of this Senior
Subordinated Note Indenture that apply to Senior Subordinated Notes called for
redemption also apply to portions of Senior Subordinated Notes called for
redemption.
Section 3.03. Notice of Redemption
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Senior Subordinated Notes are to be redeemed at its registered address.
The notice shall identify the Senior Subordinated Notes to be
redeemed, including the CUSIP numbers, and shall state:
(a) the redemption date;
39
(b) the redemption price;
(c) if any Senior Subordinated Note is being redeemed in part,
the portion of the principal amount of such Senior Subordinated Note to be
redeemed and that, after the redemption date upon surrender of such Senior
Subordinated Note, a new Senior Subordinated Note or Senior Subordinated
Notes in principal amount equal to the unredeemed portion shall be issued
upon cancellation of the original Senior Subordinated Note;
(d) the name and address of the Paying Agent;
(e) that Senior Subordinated Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Senior Subordinated Notes called for redemption ceases
to accrue on and after the redemption date;
(g) the paragraph of the Senior Subordinated Notes and/or
Section of this Senior Subordinated Note Indenture pursuant to which the
Senior Subordinated Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Senior Subordinated Notes.
At the Company's request, the Senior Subordinated Note Trustee shall
give the notice of redemption in the Company's name and at its expense;
provided, however, that the Company shall have delivered to the Senior
Subordinated Note Trustee, at least 45 days prior to the redemption date, an
Officer's Certificate requesting that the Senior Subordinated Note Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Senior Subordinated Notes called for redemption become irrevocably due
and payable on the redemption date at the redemption price. A notice of
redemption may not be conditional.
Section 3.05. Deposit of Redemption Price
One Business Day prior to the redemption date, the Company shall
deposit with the Senior Subordinated Note Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Senior
Subordinated Notes to be redeemed on that date. The Senior Subordinated Note
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Senior Subordinated Note Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Senior Subordinated Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Senior Subordinated Notes or the portions of
40
Senior Subordinated Notes called for redemption. If a Senior Subordinated Note
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Senior Subordinated Note was registered at the close
of business on such record date. If any Senior Subordinated Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Senior Subordinated Notes
and in Section 4.01 hereof.
Section 3.06. Senior Subordinated Notes Redeemed in Part.
Upon surrender of a Senior Subordinated Note that is redeemed in part,
the Company shall issue and, upon the Company's written request, the Senior
Subordinated Note Trustee shall authenticate for the Holder at the expense of
the Company a new Senior Subordinated Note equal in principal amount to the
unredeemed portion of the Senior Subordinated Note surrendered.
Section 3.07. Optional Redemption.
(a) The Senior Subordinated Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice.
(b) Prior to May 15, 2003, the Senior Subordinated Notes will be
redeemable at a redemption price equal to 100% of the principal amount thereof
plus the applicable Senior Subordinated Notes Make Whole Premium, plus, to the
extent not included in the Senior Subordinated Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Subordinated Notes Make Whole Premium"
means, with respect to a Senior Subordinated Note, an amount equal to the
greater of (a) 104.813% of the outstanding principal amount of such Senior
Subordinated Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior
Subordinated Note as if such Senior Subordinated Note were redeemed on May 15,
2003, computed using a discount rate equal to the Treasury Rate plus basis 50
points, over (2) the outstanding principal amount of such Senior Subordinated
Note.
(c) On or after May 15, 2003, the Senior Subordinated Notes are
redeemable at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2003............................................ 104.813%
2004............................................ 103.208%
2005............................................ 101.604%
2006 and thereafter............................. 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of this
Section 3.07, during the first 36 months after the date of the closing of the
Acquisition, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture at a redemption price of 109.625% of the
principal
41
amount thereof, plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that at least 65% of the aggregate principal amount of
Senior Subordinated Notes issued remain outstanding immediately after the
occurrence of such redemption (excluding Senior Subordinated Notes held by the
Company and its Subsidiaries); and provided, further, that such redemption shall
occur within 120 days of the date of the closing of such Equity Offering.
(e) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
Except as set forth in Section 3.10 hereof, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Senior Subordinated Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Senior Subordinated
Notes (an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Senior Subordinated
Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Senior
Subordinated Notes tendered in response to the Asset Sale Offer. Payment for
any Senior Subordinated Notes so purchased shall be made in the same manner as
interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Senior Subordinated Note is registered at
the close of business on such record date, and no additional interest shall be
payable to Holders who tender Senior Subordinated Notes pursuant to the Asset
Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Senior Subordinated Note Trustee and each
of the Holders. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Senior Subordinated Notes pursuant to
the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The
notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Senior Subordinated Note not tendered or accepted
for payment shall continue to accrete or accrue interest;
42
(d) that, unless the Company defaults in making such payment,
any Senior Subordinated Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrete or accrue interest after the Purchase
Date;
(e) that Holders electing to have a Senior Subordinated Note
purchased pursuant to an Asset Sale Offer may only elect to have all of
such Senior Subordinated Note purchased and may not elect to have only a
portion of such Senior Subordinated Note purchased;
(f) that Holders electing to have a Senior Subordinated Note
purchased pursuant to any Asset Sale Offer shall be required to surrender
the Senior Subordinated Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Senior Subordinated Note completed,
or transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Senior Subordinated Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Senior Subordinated Note purchased;
(h) that, if the aggregate principal amount of Senior
Subordinated Notes surrendered by Holders exceeds the Offer Amount, the
Company shall select the Senior Subordinated Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Senior Subordinated Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(i) that Holders whose Senior Subordinated Notes were purchased
only in part shall be issued new Senior Subordinated Notes equal in
principal amount to the unpurchased portion of the Senior Subordinated
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Senior Subordinated Notes or portions thereof tendered pursuant
to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Senior Subordinated Notes tendered, and shall deliver to the Senior Subordinated
Note Trustee an Officer's Certificate stating that such Senior Subordinated
Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Senior Subordinated Notes tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly
issue a new Senior Subordinated Note, and the Senior Subordinated Note Trustee,
upon written request from the Company shall authenticate and mail or deliver
such new Senior Subordinated Note to such Holder, in a principal amount equal to
any unpurchased portion of the Senior Subordinated Note surrendered. Any Senior
Subordinated Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Asset Sale Offer on the Purchase Date.
43
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.10. Special Mandatory Redemption.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Subordinated Notes
at a redemption price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of redemption.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Senior Subordinated Notes.
The Company or a Senior Subordinated Note Guarantor shall pay or cause
to be paid the principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Senior Subordinated Notes on the dates and in the manner
provided in the Senior Subordinated Notes. Principal, premium, if any, and
interest and Liquidated Damages, if any, shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest and Liquidated Damages, if any,
then due. The Company shall pay all Liquidated Damages, if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
The Company or a Senior Subordinated Note Guarantor shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal at the rate equal to the then applicable interest rate on the
Senior Subordinated Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Senior Subordinated
Note Trustee or an affiliate of the Senior Subordinated Note Trustee, Registrar
or co-registrar) where Senior Subordinated Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Senior Subordinated Notes and this Senior
Subordinated Note Indenture may be served. The Company shall give prompt
written notice to the Senior Subordinated Note Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Senior Subordinated Note Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Senior Subordinated Note Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Subordinated Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission
44
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, the City of New York for such purposes.
The Company shall give prompt written notice to the Senior Subordinated Note
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Senior
Subordinated Note Trustee as one such office or agency of the Company in
accordance with Section 2.03.
Section 4.03. Reports.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Senior Subordinated Notes are outstanding, the Company shall
furnish to the Holders of Senior Subordinated Notes (i) all quarterly and annual
financial information that would be required to be contained in a filing with
the SEC on Forms 10-Q and 10-K if the Company were required to file such forms,
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Company and its Restricted Subsidiaries separate from the
financial condition and results of operations of the Unrestricted Subsidiaries
of the Company) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants and (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports, in each case, within the time
periods specified in the SEC's rules and regulations. In addition, following
consummation of the Exchange Offer, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such information
and reports with the SEC for public availability within the time periods
specified in the SEC's rules and regulations (unless the SEC will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. The Company shall at all times comply with
TIA (S) 314(a).
(b) For so long as any Senior Subordinated Notes remain outstanding,
the Company and the Senior Subordinated Note Guarantors shall furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company and each Senior Subordinated Note Guarantor (to the
extent that such Senior Subordinated Note Guarantor is so required under the
TIA) shall deliver to the Senior Subordinated Note Trustee, within 90 days after
the end of each fiscal year, an Officer's Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Senior Subordinated Note Indenture, and further stating,
as to each such Officer signing such certificate, that to the best of his or her
knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Senior Subordinated Note Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Senior Subordinated Note Indenture (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have
45
knowledge and what action the Company is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Senior Subordinated Notes is prohibited or if such
event has occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Senior Subordinated Notes
are outstanding, deliver to the Senior Subordinated Note Trustee, as soon as
possible, but in no event later than five days after any Officer becoming aware
of any Default or Event of Default, an Officer's Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Senior Subordinated Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each of the Senior Subordinated Note Guarantors
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Senior Subordinated Note Indenture; and the Company and each of the Senior
Subordinated Note Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Senior Subordinated Note Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries'
46
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or
indirect parent of the Company; (iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Senior Subordinated Notes or any
Subordinated Subsidiary Guarantee, except a payment of interest or principal at
Stated Maturity or Indebtedness permitted under clause (viii) of Section 4.09
hereof or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Subsidiaries after the
date of the closing of the Acquisition (excluding Restricted Payments permitted
by clauses (ii), (iii), (iv), (v), and (ix) of the next succeeding paragraph),
is less than the sum, without duplication, of (i) 50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the date of the closing
of the Acquisition to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash
proceeds or the fair market value of property other than cash received by the
Company since the date of the closing of the Acquisition as a contribution to
its common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of
Disqualified Stock or debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests (or Disqualified Stock
or convertible debt securities) sold to a Subsidiary of the Company), plus (iii)
to the extent that either any Existing Citizens Power Investment or any
Restricted Investment that reduced the amount available for Restricted Payments
under this clause (c) is sold for cash or otherwise liquidated or repaid for
cash or any dividend or payment is received by the Company or a Restricted
Subsidiary after the date of the closing of the Acquisition in respect of such
Investment, 100% of the amount of Net Proceeds or dividends or payments
(including the fair market value of property) received in connection therewith,
up to the amount of the Existing Citizens Power Investment on the date of the
closing of the Acquisition or the Restricted Investment that reduced this clause
(c), as the case may be, and thereafter 50% of the amount of Net Proceeds or
dividends or payments (including the fair market value of property) received in
connection therewith (except that the amount of dividends or payments received
in respect of payments of Obligations in respect of such Investments, such as
taxes, shall not increase the amounts under this clause (c)), plus (iv) to the
extent that any Unrestricted Subsidiary of the Company is redesignated as a
Restricted Subsidiary after the date of the closing of the Acquisition, 100% of
the fair market value of the Company's Investment in such Subsidiary as of the
date of such redesignation up to the amount of the Restricted Investments made
in such Subsidiary that reduced this clause (c) and 50% of the excess of the
fair market value of the Company's Investment in such Subsidiary as of the date
of such redesignation
47
over (1) the amount of the Restricted Investment that reduced this clause (c)
and (2) any amounts that increased the amount available as a Permitted
Investment; provided, further, that if Citizens Power or any of its Subsidiaries
is designated as a Restricted Subsidiary, the amount of the fair market value of
the Investment therein on the date hereof shall also be credited to this clause
(c); provided, further, that any amounts that increase this clause (c) shall not
duplicatively increase amounts available as Permitted Investments.
The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of the this Senior Subordinated Note
Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of, other Equity Interests of the Company (other than any
Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)(ii) of
the preceding paragraph;
(iii) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;
(iv) dividends or distributions by a Restricted Subsidiary of the
Company so long as, in the case of any dividend or distribution payable on
or in respect of any class or series of securities issued by a Restricted
Subsidiary, the Company or a Restricted Subsidiary receives at least its
pro rata share of such dividend or distribution in accordance with its
Equity Interests in such class or series of securities;
(v) Investments in Unrestricted Subsidiaries having an aggregate
fair market value not to exceed the amount, at the time of such Investment,
substantially concurrently contributed in cash or Cash Equivalents to the
common equity capital of the Company after the date of the closing of the
Acquisition; provided that any such amount contributed shall be excluded
from the calculation made pursuant to clause (c) above;
(vi) the payment of dividends on the Company's Common Stock,
following the first public offering of the Company's Common Stock after the
date of the closing of the Acquisition, of up to 6% per annum of the net
proceeds received by the Company in such public offering, other than public
offerings with respect to the Company's Common Stock registered on Form S-
8;
(vii) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any present or former employee
or director of the Company (or any of its Restricted Subsidiaries) pursuant
to any management equity subscription agreement or stock option agreement
or any other management or employee benefit plan in effect as of the date
of the closing of the Acquisition;
48
provided that (A) the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed $2.0
million in any twelve-month period (with unused amounts in any calendar
year being carried over to succeeding calendar years subject to a maximum
(without giving effect to the following proviso) of $5.0 million in any
calendar year); provided further that such amount in any calendar year may
be increased by an amount not to exceed (x) the cash proceeds from the sale
of Equity Interests of the Company or a Restricted Subsidiary to members of
management and directors of the Company and its Subsidiaries that occurs
after the date of the closing of the Acquisition, plus (y) the cash
proceeds of key-man life insurance policies received by the Company and its
Restricted Subsidiaries after the date of the closing of the Acquisition,
less (z) the amount of any Restricted Payments previously made pursuant to
clauses (x) and (y) of this subparagraph (vii); and, provided further, that
cancellation of Indebtedness owing to the Company from members of
management of the Company or any of its Restricted Subsidiaries in
connection with a repurchase of Equity Interests of the Company or a
Restricted Subsidiary will not be deemed to constitute a Restricted Payment
for purposes of this covenant or any other provision of this Senior
Subordinated Note Indenture and (B) no Default or Event of Default shall
have occurred and be continuing immediately after such transaction;
(viii) repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options; and
(ix) other Restricted Payments not otherwise prohibited by this
Section 4.07 in an aggregate amount not to exceed $25.0 million under this
clause (ix).
As of the date of the closing of the Acquisition, all of the Company's
Subsidiaries other than Citizen's Power and its Subsidiaries will be Restricted
Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated shall be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this Section 4.07. All such outstanding
Investments shall be deemed to constitute Investments in an amount equal to the
fair market value of such Investments at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
If, at any time, any Unrestricted Subsidiary would fail to meet the
requirements in the definition of "Unrestricted Subsidiary" as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Senior Subordinated Note Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period, and (ii) no Default or Event of Default would be in existence
following such designation.
49
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any noncash Restricted Payment or any adjustment made
pursuant to paragraph (c) of this Section 4.07 shall be determined by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Senior Subordinated Note Trustee, such determination to be based upon an opinion
or appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $25.0 million. Not later
than the date of making any Restricted Payment, the Company shall deliver to the
Senior Subordinated Note Trustee an Officer's Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed.
If any Restricted Investment is sold or otherwise liquidated or repaid
or any dividend or payment is received by the Company or a Restricted Subsidiary
and such amounts may be credited to clause (c) above, then such amounts will be
credited only to the extent of amounts not otherwise included in Consolidated
Net Income and that do not otherwise increase the amount available as a
Permitted Investment.
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary that is not a Senior Subordinated Note Guarantor to (i)(a)
pay dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits, or (b) pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Company or any of its Restricted Subsidiaries or
(iii) transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries. However, the foregoing restrictions will not apply to
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date of the Senior Subordinated Note Indenture
and/or the closing of the Acquisition, (b) the Senior Credit Facilities as in
effect as of the date of the Senior Subordinated Note Indenture and/or the
closing of the Acquisition, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacement or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other payment
restrictions than those contained in the Senior Credit Facilities as in effect
on the date of the Senior Subordinated Note Indenture and/or the closing of the
Acquisition, (c) the Senior Note Indenture, this Senior Subordinated Note
Indenture, the Senior Notes and the Senior Subordinated Notes, (d) applicable
law or any applicable rule, regulation or order, (e) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Senior
Subordinated Note Indenture to be incurred, (f) customary non-assignment
provisions in leases and other agreements entered into in the ordinary course of
business and consistent with past practices, (g) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired, (h) any
agreement for the sale of a
50
Restricted Subsidiary that restricts distributions by that Restricted Subsidiary
pending its sale, (i) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced, (j) secured
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
Section 4.12 hereof that limits the right of the debtor to dispose of the assets
securing such Indebtedness, (k) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business, (l) restrictions on
cash or other deposits or net worth imposed by customers or lessors under
contracts or leases entered into in the ordinary course of business and (m) any
encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in clauses
(a) through (l) above, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Company's Board of
Directors, not materially more restrictive in the aggregate with respect to such
dividend and other payment restrictions than those (considered as a whole)
contained in the dividend or other payment restrictions prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company shall issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock and the Company's Restricted Subsidiaries may incur
Indebtedness or issue Disqualified Stock or preferred stock if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified
Stock or preferred stock is issued would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock or preferred stock had been issued, as the case may be, at
the beginning of such four-quarter period.
The provisions of the first paragraph of this Section 4.09 will not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Company of term Indebtedness under
Credit Facilities (and the Guarantee thereof by the Senior Subordinated
Note Guarantors); provided that the aggregate principal amount of all term
Indebtedness outstanding under this clause (i) after giving effect to such
incurrence does not exceed an amount equal to $920.0 million;
(ii) the incurrence by the Company of revolving credit
Indebtedness and letters of credit (with letters of credit being deemed to
have a principal amount equal to the maximum potential liability of the
Company and its Restricted Subsidiaries thereunder) under Credit Facilities
(and the Guarantee thereof by the Senior Subordinated Note Guarantors);
provided that the aggregate principal amount of all revolving credit
Indebtedness outstanding under this clause (ii) after giving effect to such
incurrence does not exceed an amount equal to $480.0 million;
51
(iii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company, the Senior Subordinated
Note Guarantors and the Senior Note Guarantors of Indebtedness represented
by the Senior Notes, the Senior Subordinated Notes, the Senior Subsidiary
Guarantees and the Subordinated Subsidiary Guarantees limited in aggregate
principal amount, without duplication, to amounts outstanding under the
Senior Note Indenture and this Senior Subordinated Note Indenture as of
their respective dates;
(v) (A) the guarantee by the Company or any of the Senior
Subordinated Note Guarantors of Indebtedness of the Company or a Restricted
Subsidiary of the Company or (B) the incurrence of Indebtedness of a
Restricted Subsidiary to the extent that such Indebtedness is supported by
a letter of credit, in each case that was permitted to be incurred by
another provision of this covenant;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (including Capital Lease Obligations) to
finance the acquisition (including by direct purchase, by lease or
indirectly by the acquisition of the Capital Stock of a Person that becomes
a Restricted Subsidiary as a result of such acquisition) or improvement of
property (real or personal) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then
outstanding pursuant to this clause (vi) and including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (vi), does not exceed an
amount equal to 5% of Total Assets at the time of such incurrence;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by this Senior
Subordinated Note Indenture to be incurred under the first paragraph hereof
or clauses (iii), (iv) or (vii) of this paragraph;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Senior Subordinated Notes and (ii)(A) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary thereof shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(viii);
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the ordinary
course of business for the purpose of risk management and not for the
purpose of speculation;
(x) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt
52
of an Unrestricted Subsidiary, such event shall be deemed to constitute an
incurrence of Indebtedness by a Restricted Subsidiary of the Company that
was not permitted by this clause (x), and the issuance of preferred stock
by Unrestricted Subsidiaries;
(xi) the incurrence of Indebtedness solely in respect of
performance, surety and similar bonds or completion or performance
guarantees (including, without limitation, performance guarantees pursuant
to coal supply agreements or equipment leases), to the extent that such
incurrence does not result in the incurrence of any obligation for the
payment of borrowed money to others;
(xii) the incurrence of Indebtedness arising from agreements of
the Company or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or a
Subsidiary; provided, however that (i) such Indebtedness is not reflected
on the balance sheet of the Company or any Restricted Subsidiary
(contingent obligations referred to in a footnote to financial statements
and not otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this clause (i)) and (ii)
the maximum assumable liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds including noncash proceeds (the fair
market value of such noncash proceeds being measured at the time received
and without giving effect to any subsequent changes in value) actually
received by the Company and its Restricted Subsidiaries in connection with
such disposition;
(xiii) the guarantee by the Company or any of the Senior
Subordinated Note Guarantors of additional Indebtedness relating to Black
Beauty Coal Company not to exceed $50.0 million in aggregate principal
amount outstanding at any one time under this clause (xiii);
(xiv) the incurrence of Indebtedness relating to the Bengalla
Joint Venture or the Warkworth Associates Joint Venture in an aggregate
amount not to exceed $100.0 million in aggregate principal amount
outstanding at any one time under this clause (xiv); and
(xv) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace
any Indebtedness incurred pursuant to this clause (xv), not to exceed
$250.0 million.
For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xv) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify or reclassify such item of
Indebtedness in any manner that complies with this Section 4.09. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be deemed to
be an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section 4.09; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued.
53
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value as determined in good
faith by the Company (evidenced by a resolution of the Board of Directors set
forth in an Officer's Certificate delivered to the Senior Subordinated Note
Trustee with respect to any Asset Sale determined to have a value greater that
$25.0 million) of the assets or Equity Interests issued or sold or otherwise
disposed of and (ii) at least 75% of the consideration therefor received by the
Company or such Subsidiary is in the form of cash, Cash Equivalents or
Marketable Securities; provided that the following amounts shall be deemed to be
cash: (w) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Senior Subordinated Notes or any guarantee thereof)
that are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Company or such Restricted Subsidiary from
further liability, (x) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash within 180 days
following the closing of such Asset Sale (to the extent of the cash received),
(y) any Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale; provided that the aggregate fair
market value (as determined above) of such Designated Noncash Consideration,
taken together with the fair market value at the time of receipt of all other
Designated Noncash Consideration received pursuant to this clause (y) less the
amount of Net Proceeds previously realized in cash from prior Designated Noncash
Consideration is less than 5% of Total Assets at the time of the receipt of such
Designated Noncash Consideration (with the fair market value of each item of
Designated Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value) and (z) Additional Assets received
in an exchange of assets transaction.
Within 360 days after the receipt of any cash Net Proceeds from an
Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply
such cash Net Proceeds, at its option, (a) to repay Senior Debt of the Company
or any Restricted Subsidiary including, without limitation, Indebtedness under a
Credit Facility and the Senior Notes, (b) to the acquisition of a majority of
the assets of, or a majority of the Voting Stock of, another Permitted Business,
the making of a capital expenditure or the acquisition of other assets or
Investments that are used or useful in a Permitted Business or (c) to apply the
cash Net Proceeds from such Asset Sale to an Investment in Additional Assets.
Any cash Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall be required to make an offer to all Holders of Senior
Subordinated Notes and all holders of other Indebtedness that is not Senior Debt
containing provisions similar to those set forth herein with respect to offers
to purchase or redeem with the proceeds of sales of assets (an "Asset Sale
Offer") to purchase the maximum principal amount of Senior Subordinated Notes
and such other Indebtedness that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase, in accordance with the procedures set forth herein and
such other Indebtedness. To the extent that any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by this Senior Subordinated Note
Indenture. If the aggregate principal amount of Senior Subordinated Notes and
such other Indebtedness tendered into such Asset Sale Offer surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Senior Subordinated
Note Trustee shall select
54
the Senior Subordinated Notes and such other Indebtedness to be purchased on a
pro rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction") involving
aggregate payments or consideration in excess of $5.0 million, unless (i) such
Affiliate Transaction is on terms that are materially no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Senior
Subordinated Note Trustee (a) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, a resolution of the Board of Directors set forth in an
Officer's Certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has been approved by a
majority of the members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $25.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing.
Notwithstanding the foregoing, the following items shall not be deemed
to be Affiliate Transactions: (i) any employment agreement or other compensation
plan or arrangement for employees entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company or such Restricted Subsidiary; (ii)
transactions between or among the Company and/or its Restricted Subsidiaries,
(iii) payment of reasonable fees to officers, directors, employees or
consultants of the Company; (iv) Restricted Payments that are permitted by, and
Investments that are not prohibited by, Section 4.07 hereof; (v) indemnification
payments made to officers, directors and employees of the Company or any
Restricted Subsidiary pursuant to charter, bylaw, statutory or contractual
provisions; (vi) the payment of customary annual management, consulting and
advisory fees and related expenses to ▇▇▇▇▇▇ Merchant Bank and its Affiliates;
(vii) payments by the Company or any of its Restricted Subsidiaries to ▇▇▇▇▇▇
Merchant Bank and its Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which payments are approved by a majority of the Board of Directors
of the Company in good faith; (viii) the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its obligations under the terms
of, any stockholders' agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the date of the
closing of the Acquisition and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of obligations under any future
amendment to any such existing agreement or under any similar agreement entered
into after the date of the closing of the Acquisition shall only be permitted by
this clause (viii) to the extent that the terms of any such amendment or new
agreement are not otherwise disadvantageous to the Holders in any material
respect; (ix) transactions pursuant to the terms of the Transaction Documents in
effect on the date of the closing of the Acquisition; (x) transactions with
Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners
or purchasers or sellers of goods or services, in each case in the ordinary
course of business (including, without limitation, pursuant to joint venture
agreements) and otherwise in compliance
55
with the terms of this Senior Subordinated Note Indenture which are, in the
aggregate (taking into account all the costs and benefits associated with such
transactions), materially no less favorable to the Company or its Restricted
Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person, in the reasonable determination of the Board of Directors of the Company
or the senior management thereof, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party; (xi)
guarantees of performance by the Company and its Restricted Subsidiaries of
Unrestricted Subsidiaries in the ordinary course of business, except for
guarantees of Obligations in respect of borrowed money; and (xii) pledges of
Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of
Unrestricted Subsidiaries.
Section 4.12. Liens.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind securing
Indebtedness or trade payables (other than Permitted Liens) upon any of their
property or assets, now owned or hereafter acquired, unless all payments due
under this Senior Subordinated Note Indenture and the Senior Subordinated Notes
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligations are no longer secured by a Lien.
Section 4.13. Business activities.
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Restricted Subsidiaries
taken as a whole.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Senior Subordinated Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of Senior
Subordinated Notes will have the right to require the Company to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Senior Subordinated Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of purchase (the "Change of Control Payment").
Within ten days following any Change of Control, the Company will mail a notice
to each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase Senior Subordinated Notes on the
date specified in such notice, which
56
date shall be no earlier than 30 days and no later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date"), pursuant to the
procedures required herein and described in such notice. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Senior
Subordinated Notes as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Senior Subordinated Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (2) deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Senior Subordinated Notes or portions thereof so tendered and (3)
deliver or cause to be delivered to the Senior Subordinated Note Trustee the
Senior Subordinated Notes so accepted together with an Officer's Certificate
stating the aggregate principal amount of Senior Subordinated Notes or portions
thereof being purchased by the Company. The Paying Agent will promptly mail to
each Holder of Senior Subordinated Notes so tendered the Change of Control
Payment for such Senior Subordinated Notes, and, upon receipt of an
Authentication Order, the Senior Subordinated Note Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Senior Subordinated Note equal in principal amount to any unpurchased
portion of the Senior Subordinated Notes surrendered, if any; provided that each
such new Senior Subordinated Note will be in a principal amount of $1,000 or an
integral multiple thereof. Prior to complying with the provisions of this
Section 4.15, but in any event within 90 days following a Change of Control, the
Company shall either repay all outstanding Senior Debt other than the Senior
Notes or obtain the requisite consents, if any, under all agreements governing
outstanding Senior Debt other than the Senior Notes to permit the repurchase of
Senior Subordinated Notes required by this Section 4.15. With respect to the
Senior Subordinated Notes, the Company may effect a Change of Control hereunder
pursuant to the terms of this Senior Subordinated Note Indenture; provided that
the Company complies with the provisions of the Senior Note Indenture pursuant
to Section 4.15 thereunder. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Senior Subordinated Note Indenture
are applicable.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth herein
applicable to a Change of Control Offer made by the Company and purchases all
Senior Subordinated Notes validly tendered and not withdrawn under such Change
of Control Offer or if the Company exercises its option to purchase the Senior
Subordinated Notes.
Section 4.16. No Senior Subordinated Debt.
(i) The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt and senior in any respect in right of
payment to the Senior Subordinated Notes, and (ii) no Senior Subordinated Note
Guarantor shall incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is subordinate or junior in right of payment to
the Senior Subsidiary Guarantees and senior in any respect in right of payment
to the Subordinated Subsidiary Guarantees.
57
Section 4.17. Additional Subordinated Subsidiary Guarantees.
If the Company or any of its Domestic Subsidiaries shall acquire or
create another Domestic Subsidiary after the date hereof and such Domestic
Subsidiary provides a guarantee of the Senior Credit Facilities, then such newly
acquired or created Domestic Subsidiary shall execute a supplemental indenture
in form and substance substantially similar to Exhibit F hereto providing that
---------
such Domestic Subsidiary shall become a Senior Subordinated Note Guarantor under
this Senior Subordinated Note Indenture, provided, however, this Section 4.17
shall not apply to any Domestic Subsidiary that has been properly designated as
an Unrestricted Subsidiary in accordance with this Senior Subordinated Note
Indenture for so long as it continues to constitute an Unrestricted Subsidiary.
Section 4.18. Payments for consents
The Company nor any of its Restricted Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Senior Subordinated Notes for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Senior Subordinated Note Indenture or the Senior Subordinated
Notes unless such consideration is offered to be paid or is paid to all Holders
of the Senior Subordinated Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the
Registration Rights Agreement, the Senior Subordinated Notes and this Senior
Subordinated Note Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Senior Subordinated Note Trustee; (iii)
immediately after such transaction no Default or Event of Default exists; and
(iv) except in the case of a merger of the Company with or into a Wholly Owned
Restricted Subsidiary of the Company, immediately after giving pro forma effect
to such transaction, as if such transaction had occurred at the beginning of the
applicable four-quarter period, (A) the entity surviving such consolidation or
merger would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 or (B) the Fixed Charge Coverage Ratio for the Company
or the entity or Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made would, immediately after
giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, not be less than such Fixed
Charge
58
Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior
to such transaction. The Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. The provisions of this Section 5.01 will not
be applicable to a sale, assignment, transfer, conveyance or other disposition
of assets between or among the Company and its Restricted Subsidiaries.
Notwithstanding the foregoing clause (iv), (i) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (ii) the Company may merge with an
Affiliate that has no significant assets or liabilities and was formed solely
for the purpose of changing the jurisdiction of organization of the Company in
another State of the United States or the form of organization of the Company so
long as the amount of Indebtedness of the Company and its Restricted
Subsidiaries is not increased thereby and provided that the successor assumes
all the obligations of the Company under the Registration Rights Agreement, the
Senior Subordinated Notes and this Senior Subordinated Note Indenture pursuant
to a supplemental indenture in a form reasonably satisfactory to the Senior
Subordinated Note Trustee.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Senior Subordinated Note Indenture referring to the "Company"
shall refer instead to the successor corporation and not to the Company), and
may exercise every right and power of the Company under this Senior Subordinated
Note Indenture with the same effect as if such successor Person had been named
as the Company herein; provided, however, that the predecessor Company shall not
be relieved from the obligation to pay the principal of and interest on the
Senior Subordinated Notes except in the case of a sale of all of the Company's
assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on, or
Liquidated Damages, if any, with respect to, the Senior Subordinated Notes and
such default continues for a period of 30 days (whether or not prohibited by the
subordination provisions of Article 10);
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Senior Subordinated Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise (whether or not prohibited by the subordination
provisions of Article 10);
59
(c) the Company or any of its Subsidiaries fails to make the offer
required or to purchase any of the Senior Subordinated Notes as required by
Sections 4.10 and/or 4.15 hereof;
(d) the Company fails to comply for 30 days after notice to the
Company by the Senior Subordinated Note Trustee with any of the provisions of
Sections 4.07 or 4.09 hereof; or the Company fails to observe or perform any
other covenant, representation, warranty or other agreement in this Senior
Subordinated Note Indenture or the Senior Subordinated Notes for 60 days after
notice to the Company by the Senior Subordinated Note Trustee or the Holders of
at least 25% in aggregate principal amount of the Senior Subordinated Notes then
outstanding voting as a single class;
(e) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or
is created after the date of this Senior Subordinated Note Indenture, which
default results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of such Indebtedness aggregates
$50.0 million or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any of its that are Restricted Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
and such judgment or judgments remain undischarged for a period (during which
execution shall not be effectively stayed) of 60 days, provided that the
aggregate of all such undischarged judgments exceeds $50.0 million;
(g) the Company or any of its Significant Subsidiaries that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary pursuant to or within the
meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary in an involuntary case;
60
(ii) appoints a custodian of the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary or for all or substantially all of the property of
the Company or any of its Significant Subsidiaries that are Restricted
Subsidiaries or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days;
(i) except as permitted by this Senior Subordinated Note Indenture,
any Subordinated Subsidiary Guarantee is held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Senior Subordinated Note Guarantor, or any Person acting on behalf
of any Senior Subordinated Note Guarantor, shall deny or disaffirm its
obligations under such Senior Subordinated Note Guarantor's Subordinated
Subsidiary Guarantee; or
(j) the Company fails to deposit the required amounts into the Escrow
Account pursuant to the Escrow Letter or any failure of the proceeds of the
Escrow Account to be applied as required under the Escrow Letter.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 6.01 hereof with respect to the Company, any
Significant Subsidiary that is a Restricted Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary) occurs and is continuing, the Senior Subordinated Note Trustee or
the Holders of at least 25% in principal amount of the then outstanding Senior
Subordinated Notes may declare all the Senior Subordinated Notes to be due and
payable immediately; provided, that so long as any Designated Senior Debt is
outstanding, such acceleration shall not be effective until the earlier of (i)
an acceleration under any Designated Senior Debt or (ii) five Business Days
after receipt by the Company and the Representative of the Designated Senior
Debt of written notice of such acceleration of the Senior Subordinated Notes.
Upon any such declaration, the Senior Subordinated Notes shall become due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (g) or (h) of Section 6.01 hereof occurs with respect to the
Company, any of its Significant Subsidiaries that are Restricted Subsidiaries or
any group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, all outstanding Senior Subordinated Notes shall be due
and payable without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Senior Subordinated Notes by
written notice to the Senior Subordinated Note Trustee may on behalf of all of
the Holders rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after May 15, 2003, by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Senior
Subordinated Notes pursuant to Section 3.07 hereof, then, upon acceleration of
the Senior
61
Subordinated Notes, an equivalent premium shall also become and be immediately
due and payable, to the extent permitted by law, anything in this Senior
Subordinated Note Indenture or in the Senior Subordinated Notes to the contrary
notwithstanding. If an Event of Default occurs prior to May 15, 2003, by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding paying the premium upon redemption of the
Senior Subordinated Notes prior to such date, then, upon acceleration of the
Senior Subordinated Notes, a premium shall also become and be immediately due
and payable in an amount, for each of the years beginning on May 15 of the years
set forth below, as set forth below (expressed as a percentage of the aggregate
principal amount to the date of payment that would otherwise be due but for the
provisions of this sentence):
Year Percentage
1998............................... 112.833%
1999............................... 111.229%
2000............................... 109.625%
2001............................... 108.021%
2002............................... 106.417%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Senior
Subordinated Note Trustee may pursue any available remedy to collect the payment
of principal, premium, if any, and interest and Liquidated Damages, if any, on
the Senior Subordinated Notes or to enforce the performance of any provision of
the Senior Subordinated Notes or this Senior Subordinated Note Indenture.
The Senior Subordinated Note Trustee may maintain a proceeding even if
it does not possess any of the Senior Subordinated Notes or does not produce any
of them in the proceeding. A delay or omission by the Senior Subordinated Note
Trustee or any Holder of a Senior Subordinated Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Senior Subordinated Notes by notice to the Senior
Subordinated Note Trustee may on behalf of the Holders of all of the Senior
Subordinated Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium and Liquidated Damages, if any, or interest
on, the Senior Subordinated Notes (including in connection with an offer to
purchase) (provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Senior Subordinated Notes may rescind
an acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Senior Subordinated Note Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
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Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Senior Subordinated
Note Trustee or exercising any trust or power conferred on it. However, the
Senior Subordinated Note Trustee may refuse to follow any direction that
conflicts with law or this Senior Subordinated Note Indenture that the Senior
Subordinated Note Trustee determines may be unduly prejudicial to the rights of
other Holders of Senior Subordinated Notes or that may involve the Senior
Subordinated Note Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Senior Subordinated Note may pursue a remedy with
respect to this Senior Subordinated Note Indenture or the Senior Subordinated
Notes only if:
(a) the Holder of a Senior Subordinated Note gives to the Senior
Subordinated Note Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Senior Subordinated Notes make a written request to the Senior
Subordinated Note Trustee to pursue the remedy;
(c) such Holder of a Senior Subordinated Note or Holders of
Senior Subordinated Notes offer and, if requested, provide to the Senior
Subordinated Note Trustee indemnity satisfactory to the Senior Subordinated
Note Trustee against any loss, liability or expense;
(d) the Senior Subordinated Note Trustee does not comply with the
request within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Senior Subordinated Notes do not
give the Senior Subordinated Note Trustee a direction inconsistent with the
request.
A Holder of a Senior Subordinated Note may not use this Senior
Subordinated Note Indenture to prejudice the rights of another Holder of a
Senior Subordinated Note or to obtain a preference or priority over another
Holder of a Senior Subordinated Note.
Section 6.07. Rights of Holders of Senior Subordinated Notes to Receive
Payment.
Notwithstanding any other provision of this Senior Subordinated Note
Indenture, the right of any Holder of a Senior Subordinated Note to receive
payment of principal, premium and Liquidated Damages, if any, and interest on
the Senior Subordinated Note, on or after the respective due dates expressed in
the Senior Subordinated Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
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Section 6.08. Collection Suit by Senior Subordinated Note Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Senior Subordinated Note Trustee is authorized to recover
judgment in its own name and as Senior Subordinated Note Trustee of an express
trust against the Company for the whole amount of principal of, premium and
Liquidated Damages, if any, and interest remaining unpaid on the Senior
Subordinated Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Senior Subordinated Note Trustee, its agents
and counsel.
Section 6.09. Senior Subordinated Note Trustee May File Proofs of Claim.
The Senior Subordinated Note Trustee is authorized to file such proofs
of claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Senior Subordinated Note Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Senior Subordinated Note Trustee, its agents and counsel) and the Holders of the
Senior Subordinated Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Senior Subordinated Notes), its creditors
or its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Senior Subordinated Note Trustee, and in the
event that the Senior Subordinated Note Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Senior Subordinated Note
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Senior Subordinated Note Trustee, its agents
and counsel, and any other amounts due the Senior Subordinated Note Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Senior Subordinated
Note Trustee, its agents and counsel, and any other amounts due the Senior
Subordinated Note Trustee under Section 7.07 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Senior Subordinated Note Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Senior
Subordinated Notes or the rights of any Holder, or to authorize the Senior
Subordinated Note Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10. Priorities.
If the Senior Subordinated Note Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Senior Subordinated Note Trustee, its agents and
attorneys for amounts due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Senior Subordinated Note Trustee and the costs and expenses of collection;
Second: to Holders of Senior Subordinated Notes for amounts due and
unpaid on the Senior Subordinated Notes for principal, premium and Liquidated
Damages, if any, and interest, ratably,
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without preference or priority of any kind, according to the amounts due and
payable on the Senior Subordinated Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Senior Subordinated Note Trustee may fix a record date and payment
date for any payment to Holders of Senior Subordinated Notes pursuant to this
Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Senior Subordinated Note Indenture or in any suit against the Senior
Subordinated Note Trustee for any action taken or omitted by it as a Senior
Subordinated Note Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Senior Subordinated Note
Trustee, a suit by a Holder of a Senior Subordinated Note pursuant to Section
6.07 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Senior Subordinated Notes.
ARTICLE 7.
SENIOR SUBORDINATED NOTE TRUSTEE
Section 7.01. Duties of Senior Subordinated Note Trustee.
(a) If an Event of Default has occurred and is continuing, the Senior
Subordinated Note Trustee shall exercise such of the rights and powers vested in
it by this Senior Subordinated Note Indenture, and use the same degree of care
and skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Senior Subordinated Note Trustee shall
be determined solely by the express provisions of this Senior Subordinated
Note Indenture and the Senior Subordinated Note Trustee need perform only
those duties that are specifically set forth in this Senior Subordinated
Note Indenture and no others, and no implied covenants or obligations shall
be read into this Senior Subordinated Note Indenture against the Senior
Subordinated Note Trustee; and
(ii) in the absence of bad faith on its part, the Senior
Subordinated Note Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Senior Subordinated Note Trustee
and conforming to the requirements of this Senior Subordinated Note
Indenture. However, the Senior Subordinated Note Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Senior Subordinated Note Indenture.
(c) The Senior Subordinated Note Trustee may not be relieved from
liabilities for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
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(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Senior Subordinated Note Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Senior Subordinated Note Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Senior Subordinated Note Trustee shall not be liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Senior Subordinated Note Indenture that in any way relates to the Senior
Subordinated Note Trustee is subject to paragraphs (a), (b), (c), (e) and (f) of
this Section and Section 7.02.
(e) No provision of this Senior Subordinated Note Indenture shall
require the Senior Subordinated Note Trustee to expend or risk its own funds or
incur any liability. The Senior Subordinated Note Trustee shall be under no
obligation to exercise any of its rights and powers under this Senior
Subordinated Note Indenture at the request of any Holders, unless such Holder
shall have offered to the Senior Subordinated Note Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(f) The Senior Subordinated Note Trustee shall not be liable for
interest on any money received by it except as the Senior Subordinated Note
Trustee may agree in writing with the Company. Money held in trust by the
Senior Subordinated Note Trustee need not be segregated from other funds except
to the extent required by law.
Section 7.02. Rights of Senior Subordinated Note Trustee.
(a) The Senior Subordinated Note Trustee may conclusively rely upon
any document believed by it to be genuine and to have been signed or presented
by the proper Person. The Senior Subordinated Note Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Senior Subordinated Note Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel or
both. The Senior Subordinated Note Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officer's
Certificate or Opinion of Counsel. The Senior Subordinated Note Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Senior Subordinated Note Trustee may act through its attorneys
and agents and shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Senior Subordinated Note Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be authorized
or within the rights or powers conferred upon it by this Senior Subordinated
Note Indenture.
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(e) Unless otherwise specifically provided in this Senior Subordinated
Note Indenture, any demand, request, direction or notice from the Company or any
Senior Subordinated Note Guarantor shall be sufficient if signed by an Officer
of the Company or Senior Subordinated Note Guarantor issuing such demand,
request or notice.
(f) The Senior Subordinated Note Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Senior Subordinated
Note Indenture at the request or direction of any of the Holders unless such
Holders shall have offered to the Senior Subordinated Note Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Senior Subordinated Note Trustee.
The Senior Subordinated Note Trustee in its individual or any other
capacity may become the owner or pledgee of Senior Subordinated Notes and may
otherwise deal with the Company or any Affiliate of the Company with the same
rights it would have if it were not Senior Subordinated Note Trustee. However,
in the event that the Senior Subordinated Note Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Senior Subordinated Note Trustee or resign. Any Agent
may do the same with like rights and duties. The Senior Subordinated Note
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Senior Subordinated Note Trustee's Disclaimer.
The Senior Subordinated Note Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Senior
Subordinated Note Indenture or the Senior Subordinated Notes, it shall not be
accountable for the Company's use of the proceeds from the Senior Subordinated
Notes or any money paid to the Company or upon the Company's direction under any
provision of this Senior Subordinated Note Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Senior Subordinated Note Trustee, and it shall not be responsible
for any statement or recital herein or any statement in the Senior Subordinated
Notes or any other document in connection with the sale of the Senior
Subordinated Notes or pursuant to this Senior Subordinated Note Indenture other
than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Senior Subordinated Note Trustee, the Senior Subordinated Note
Trustee shall mail to Holders of Senior Subordinated Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Senior Subordinated Note, the Senior Subordinated Note Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Senior Subordinated Notes.
Section 7.06. Reports by Senior Subordinated Note Trustee to Holders of the
Senior Subordinated Notes.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Senior Subordinated Note Indenture, and for so long as Senior
Subordinated Notes remain outstanding,
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the Senior Subordinated Note Trustee shall mail to the Holders of the Senior
Subordinated Notes a brief report dated as of such reporting date that complies
with TIA (S) 313(a) (but if no event described in TIA (S) 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Senior Subordinated Note Trustee also shall comply with TIA
(S) 313(b)(2). The Senior Subordinated Note Trustee shall also transmit by mail
all reports as required by TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders of
Senior Subordinated Notes shall be mailed to the Company and filed with the SEC
and each stock exchange on which the Senior Subordinated Notes are listed in
accordance with TIA (S) 313(d). The Company shall promptly notify the Senior
Subordinated Note Trustee when the Senior Subordinated Notes are listed on any
stock exchange.
Section 7.07. Compensation and Indemnity.
The Company and the Senior Subordinated Note Guarantors shall pay to
the Senior Subordinated Note Trustee from time to time reasonable compensation
for its acceptance of this Senior Subordinated Note Indenture and services
hereunder. The Senior Subordinated Note Trustee's compensation shall not be
limited by any law on compensation of a Senior Subordinated Note Trustee of an
express trust. The Company and the Senior Subordinated Note Guarantors shall
reimburse the Senior Subordinated Note Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Senior Subordinated
Note Trustee's agents and counsel.
The Company and the Senior Subordinated Note Guarantors shall
indemnify the Senior Subordinated Note Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Senior Subordinated Note
Indenture, including the costs and expenses of enforcing this Senior
Subordinated Note Indenture against the Company and the Senior Subordinated Note
Guarantors (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company and the Senior Subordinated Note Guarantors or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Senior Subordinated Note Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Senior Subordinated
Note Trustee to so notify the Company shall not relieve the Company and the
Senior Subordinated Note Guarantors of its obligations hereunder. The Company
shall defend the claim and the Senior Subordinated Note Trustee shall cooperate
in the defense. The Senior Subordinated Note Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company and the Senior Subordinated Note
Guarantors under this Section 7.07 shall survive the satisfaction and discharge
of this Senior Subordinated Note Indenture.
To secure the Company's and the Senior Subordinated Note Guarantors'
payment obligations in this Section, the Senior Subordinated Note Trustee shall
have a Lien prior to the Senior Subordinated Notes on all money or property held
or collected by the Senior Subordinated Note Trustee, except that held in trust
to pay principal and interest on particular Senior Subordinated Notes. Such Lien
shall survive the satisfaction and discharge of this Senior Subordinated Note
Indenture.
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When the Senior Subordinated Note Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.01(g) or (h) hereof
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Senior Subordinated Note Trustee shall comply with the provisions
of TIA (S) 313(b)(2) to the extent applicable.
Section 7.08. Replacement of Senior Subordinated Note Trustee.
A resignation or removal of the Senior Subordinated Note Trustee and
appointment of a successor Senior Subordinated Note Trustee shall become
effective only upon the successor Senior Subordinated Note Trustee's acceptance
of appointment as provided in this Section.
The Senior Subordinated Note Trustee may resign in writing at any time
and be discharged from the trust hereby created by so notifying the Company. The
Holders of Senior Subordinated Notes of a majority in principal amount of the
then outstanding Senior Subordinated Notes may remove the Senior Subordinated
Note Trustee by so notifying the Senior Subordinated Note Trustee and the
Company in writing. The Company may remove the Senior Subordinated Note Trustee
if:
(a) the Senior Subordinated Note Trustee fails to comply with
Section 7.10 hereof;
(b) the Senior Subordinated Note Trustee is adjudged a bankrupt
or an insolvent or an order for relief is entered with respect to the
Senior Subordinated Note Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Senior
Subordinated Note Trustee or its property; or
(d) the Senior Subordinated Note Trustee becomes incapable of
acting.
If the Senior Subordinated Note Trustee resigns or is removed or if a
vacancy exists in the office of Senior Subordinated Note Trustee for any reason,
the Company shall promptly appoint a successor Senior Subordinated Note Trustee.
Within one year after the successor Senior Subordinated Note Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes may appoint a successor Senior Subordinated Note
Trustee to replace the successor Senior Subordinated Note Trustee appointed by
the Company.
If a successor Senior Subordinated Note Trustee does not take office
within 60 days after the retiring Senior Subordinated Note Trustee resigns or is
removed, the retiring Senior Subordinated Note Trustee, the Company, or the
Holders of Senior Subordinated Notes of at least 10% in principal amount of the
then outstanding Senior Subordinated Notes may petition any court of competent
jurisdiction for the appointment of a successor Senior Subordinated Note
Trustee.
If the Senior Subordinated Note Trustee, after written request by any
Holder of a Senior Subordinated Note who has been a Holder of a Senior
Subordinated Note for at least six months, fails to comply with Section 7.10,
such Holder of a Senior Subordinated Note may petition any court of competent
69
jurisdiction for the removal of the Senior Subordinated Note Trustee and the
appointment of a successor Senior Subordinated Note Trustee.
A successor Senior Subordinated Note Trustee shall deliver a written
acceptance of its appointment to the retiring Senior Subordinated Note Trustee
and to the Company. Thereupon, the resignation or removal of the retiring Senior
Subordinated Note Trustee shall become effective, and the successor Senior
Subordinated Note Trustee shall have all the rights, powers and duties of the
Senior Subordinated Note Trustee under this Senior Subordinated Note Indenture.
The successor Senior Subordinated Note Trustee shall mail a notice of its
succession to Holders of the Senior Subordinated Notes. The retiring Senior
Subordinated Note Trustee shall promptly transfer all property held by it as
Senior Subordinated Note Trustee to the successor Senior Subordinated Note
Trustee, provided all sums owing to the Senior Subordinated Note Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Senior Subordinated Note Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Senior Subordinated Note
Trustee.
Section 7.09. Successor Senior Subordinated Note Trustee by Merger, etc.
If the Senior Subordinated Note Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Senior Subordinated Note Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Senior Subordinated Note Trustee
hereunder that is a corporation organized and doing business under the laws of
the United States of America or of any state thereof that is authorized under
such laws to exercise corporate Senior Subordinated Note Trustee power, that is
subject to supervision or examination by federal or state authorities and that
has a combined capital and surplus of at least $100.0 million as set forth in
its most recent published annual report of condition.
This Senior Subordinated Note Indenture shall always have a Senior
Subordinated Note Trustee who satisfies the requirements of TIA (S) 310(a)(1),
(2) and (5). The Senior Subordinated Note Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Senior Subordinated Note Trustee is subject to TIA (S) 311(a),
excluding any creditor relationship listed in TIA (S) 311(b). A Senior
Subordinated Note Trustee who has resigned or been removed shall be subject to
TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officer's Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied
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to all outstanding Senior Subordinated Notes upon compliance with the conditions
set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Senior
Subordinated Notes and to have each Senior Subordinated Note Guarantor's
obligation discharged with respect to its Subordinated Subsidiary Guarantee on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Senior Subordinated Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Senior Subordinated Note Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Senior
Subordinated Notes and this Senior Subordinated Note Indenture (and the Senior
Subordinated Note Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Senior Subordinated Notes to
receive solely from the trust fund described in Section 8.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest and Liquidated Damages, if any, on such Senior
Subordinated Notes when such payments are due, (b) the Company's obligations
with respect to such Senior Subordinated Notes under Article 2 and Section 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Senior
Subordinated Note Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Senior Subordinated Note
Guarantor shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from their obligations under the covenants
contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17
and 4.18 hereof with respect to the outstanding Senior Subordinated Notes on and
after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, "Covenant Defeasance"), and the Senior Subordinated Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Senior Subordinated Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Senior Subordinated Notes, the Company and each Senior Subordinated
Note Guarantor may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Senior Subordinated Note
Indenture and such Senior Subordinated Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to
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this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(d) through 6.01(f) hereof shall not
constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Senior Subordinated Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Senior Subordinated
Note Trustee, in trust, for the benefit of the Holders, cash in United States
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on the outstanding Senior Subordinated Notes on
the stated date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Senior Subordinated Notes
are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Senior Subordinated Note Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Senior Subordinated
Note Trustee confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B) since the date
of this Senior Subordinated Note Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Senior Subordinated Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Senior Subordinated Note Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Senior Subordinated
Note Trustee confirming that the Holders of the outstanding Senior Subordinated
Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Senior Subordinated Notes pursuant to this
Article 8 concurrently with such incurrence) or insofar as Sections 6.01(g) or
6.01(h) hereof is concerned, at any time in the period ending on the effective
date of such defeasance;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Senior Subordinated Note Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
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(f) the Company shall have delivered to the Senior Subordinated Note
Trustee an Opinion of Counsel (which may be subject to customary exceptions) to
the effect that on the effective date of such defeasance, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Senior Subordinated Note
Trustee an Officer's Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other creditors of
the Company or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company; and
(h) the Company shall have delivered to the Senior Subordinated Note
Trustee an Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Senior
Subordinated Note Trustee (or other qualifying Senior Subordinated Note Trustee,
collectively for purposes of this Section 8.05, the "Senior Subordinated Note
Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Senior
Subordinated Notes shall be held in trust and applied by the Senior Subordinated
Note Trustee, in accordance with the provisions of such Senior Subordinated
Notes and this Senior Subordinated Note Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Senior Subordinated Note Trustee may determine, to the Holders of
such Senior Subordinated Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company and the Senior Subordinated Note Guarantors shall pay and
indemnify the Senior Subordinated Note Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Senior
Subordinated Notes.
Anything in this Article 8 to the contrary notwithstanding, the Senior
Subordinated Note Trustee shall deliver or pay to the Company from time to time
upon the request of the Company any money or non-callable Government Securities
held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Senior Subordinated Note Trustee
(which may be the opinion delivered under Section 8.04(a) hereof), are in excess
of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Senior Subordinated Note Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on any Senior Subordinated Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held
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by the Company) shall be discharged from such trust; and the Holder of such
Senior Subordinated Note shall thereafter, as a secured creditor, look only to
the Company for payment thereof, and all liability of the Senior Subordinated
Note Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as Senior Subordinated Note Trustee thereof, shall
thereupon cease; provided, however, that the Senior Subordinated Note Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 8.07. Reinstatement.
If the Senior Subordinated Note Trustee or Paying Agent is unable to
apply any United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Senior Subordinated Note Indenture and the Senior
Subordinated Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Senior
Subordinated Note Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Senior Subordinated Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Senior Subordinated Notes to receive such payment from the money held by
the Senior Subordinated Note Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Senior Subordinated Notes.
Notwithstanding Section 9.02 of this Senior Subordinated Note
Indenture, the Company, the Senior Subordinated Note Guarantors and the Senior
Subordinated Note Trustee may amend or supplement this Senior Subordinated Note
Indenture, the Subordinated Subsidiary Guarantees or the Senior Subordinated
Notes without the consent of any Holder of a Senior Subordinated Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated Notes or to
alter the provisions of Article 2 hereof (including the related
definitions) in a manner that does not materially adversely affect any
Holder;
(c) to provide for the assumption of the Company's or a Senior
Subordinated Note Guarantor's obligations to the Holders of the Senior
Subordinated Notes by a successor to the Company or a Senior Subordinated
Note Guarantor pursuant to Article 5 or Article 11 hereof;
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(d) to make any change that would provide any additional rights
or benefits to the Holders of the Senior Subordinated Notes or that does
not adversely affect the legal rights hereunder of any Holder of the Senior
Subordinated Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Senior Subordinated Note Indenture under
the TIA;
(f) to provide for the issuance of Additional Senior
Subordinated Notes in accordance with the limitations set forth in this
Senior Subordinated Note Indenture as of the date hereof; or
(g) to allow any Senior Subordinated Note Guarantor to execute a
supplemental Senior Subordinated Note Indenture and/or a Subordinated
Subsidiary Guarantee with respect to the Senior Subordinated Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Senior Subordinated Note Indenture, and upon receipt by the Senior Subordinated
Note Trustee of the documents described in Section 7.02 hereof, the Senior
Subordinated Note Trustee shall join with the Company and the Senior
Subordinated Note Guarantors in the execution of any amended or supplemental
Senior Subordinated Note Indenture authorized or permitted by the terms of this
Senior Subordinated Note Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Senior
Subordinated Note Trustee shall not be obligated to enter into such amended or
supplemental Senior Subordinated Note Indenture that affects its own rights,
duties or immunities under this Senior Subordinated Note Indenture or otherwise.
Section 9.02. WITH CONSENT OF HOLDERS OF SENIOR SUBORDINATED NOTES.
Except as provided below in this Section 9.02, the Company and the
Senior Subordinated Note Trustee may amend or supplement this Senior
Subordinated Note Indenture (including Sections 3.09, 3.10, 4.10 and 4.15
hereof), the Subordinated Subsidiary Guarantees and the Senior Subordinated
Notes may be amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Senior Subordinated Notes (including
Additional Senior Subordinated Notes, if any) then outstanding voting as a
single class (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Senior Subordinated Notes), and, subject
to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Senior Subordinated Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes (including Additional Senior Subordinated Notes, if
any) voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Senior Subordinated
Notes). Without the consent of at least 75% in principal amount of the Senior
Subordinated Notes then outstanding (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, such Senior
Subordinated Notes), no waiver or amendment to this Senior Subordinated Note
Indenture may make any change in the provisions of Article 10 hereof that
adversely affects the rights of any Holder of Senior Subordinated Notes.
Section 2.08 hereof shall
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determine which Senior Subordinated Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Senior Subordinated Note Indenture, and upon the filing with the Senior
Subordinated Note Trustee of evidence satisfactory to the Senior Subordinated
Note Trustee of the consent of the Holders of Senior Subordinated Notes as
aforesaid, and upon receipt by the Senior Subordinated Note Trustee of the
documents described in Section 7.02 hereof, the Senior Subordinated Note Trustee
shall join with the Company in the execution of such amended or supplemental
Senior Subordinated Note Indenture unless such amended or supplemental Senior
Subordinated Note Indenture directly affects the Senior Subordinated Note
Trustee's own rights, duties or immunities under this Senior Subordinated Note
Indenture or otherwise, in which case the Senior Subordinated Note Trustee may
in its discretion, but shall not be obligated to, enter into such amended or
supplemental Senior Subordinated Note Indenture.
It shall not be necessary for the consent of the Holders of Senior
Subordinated Notes under this Section 9.02 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Senior Subordinated
Notes affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Senior Subordinated Note Indenture or waiver. Subject to
Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal
amount of the Senior Subordinated Notes (including Additional Senior
Subordinated Notes, if any) then outstanding voting as a single class may waive
compliance in a particular instance by the Company with any provision of this
Senior Subordinated Note Indenture or the Senior Subordinated Notes. However,
without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Senior Subordinated Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Senior Subordinated Notes
whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Senior Subordinated Note or alter or waive any of the provisions with
respect to the redemption of the Senior Subordinated Notes except as
provided above with respect to Sections 3.09, 3.10, 4.10 and 4.15 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Senior Subordinated Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if any,
on the Senior Subordinated Notes (except a rescission of acceleration of
the Senior Subordinated Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Senior Subordinated
Notes (including Additional Senior Subordinated Notes, if any) and a waiver
of the payment default that resulted from such acceleration;
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(e) make any Senior Subordinated Note payable in money other
than that stated in the Senior Subordinated Notes;
(f) make any change in the provisions of this Senior
Subordinated Note Indenture relating to waivers of past Defaults or the
rights of Holders of Senior Subordinated Notes to receive payments of
principal of or premium, interest or Liquidated Damages, if any, on the
Senior Subordinated Notes;
(g) waive a redemption payment with respect to any Senior
Subordinated Note (other than a payment required by Sections 4.10 or 4.15);
(h) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions; or
(i) release any Senior Subordinated Note Guarantor from any of
its obligations under its Subordinated Subsidiary Guarantee or this Senior
Subordinated Note Indenture, except in accordance with the terms of this
Senior Subordinated Note Indenture.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Senior Subordinated Note
Indenture or the Senior Subordinated Notes shall be set forth in a amended or
supplemental Senior Subordinated Note Indenture that complies with the TIA as
then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Senior Subordinated Note is a continuing consent
by the Holder of a Senior Subordinated Note and every subsequent Holder of a
Senior Subordinated Note or portion of a Senior Subordinated Note that evidences
the same debt as the consenting Holder's Senior Subordinated Note, even if
notation of the consent is not made on any Senior Subordinated Note. However,
any such Holder of a Senior Subordinated Note or subsequent Holder of a Senior
Subordinated Note may revoke the consent as to its Senior Subordinated Note if
the Senior Subordinated Note Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.
Section 9.05. NOTATION ON OR EXCHANGE OF SENIOR SUBORDINATED NOTES.
The Senior Subordinated Note Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Senior Subordinated
Note thereafter authenticated. The Company in exchange for all Senior
Subordinated Notes may issue and the Senior Subordinated Note Trustee shall,
upon receipt of an Authentication Order, authenticate new Senior Subordinated
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior
Subordinated Note shall not affect the validity and effect of such amendment,
supplement or waiver.
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Section 9.06. SENIOR SUBORDINATED NOTE TRUSTEE TO SIGN AMENDMENTS, ETC.
The Senior Subordinated Note Trustee shall sign any amended or
supplemental Senior Subordinated Note Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Senior Subordinated Note Trustee. The
Company may not sign an amendment or supplemental Senior Subordinated Note
Indenture until the Board of Directors approves it. In executing any amended or
supplemental Senior Subordinated Note Indenture, the Senior Subordinated Note
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 12.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental Senior Subordinated Note
Indenture is authorized or permitted by this Senior Subordinated Note Indenture.
ARTICLE 10.
SUBORDINATION
Section 10.01. AGREEMENT TO SUBORDINATE.
The Company and the Senior Subordinated Note Guarantors agree,
and each Holder by accepting a Senior Subordinated Note agrees, that the
Indebtedness evidenced by the Senior Subordinated Notes is subordinated in right
of payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full in cash of all Senior Debt (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
Section 10.02. CERTAIN DEFINITIONS.
"Designated Senior Debt" means (i) any Indebtedness of the
Company or any of its Restricted Subsidiaries outstanding under Credit
Facilities, (ii) any Indebtedness outstanding under the Senior Note Indenture
and (iii) any other Senior Debt permitted under this Senior Subordinated Note
Indenture the principal amount of which is $25.0 million or more and that has
been designated by the Company as "Designated Senior Debt."
"Permitted Junior Securities" means Equity Interests in the
Company or any Senior Subordinated Note Guarantor or debt securities that are
subordinated to all Senior Debt (and any debt securities issued in exchange for
Senior Debt) to substantially the same extent as, or to a greater extent than,
the Senior Subordinated Notes and the Subordinated Subsidiary Guarantees are
subordinated to Senior Debt pursuant to Article 10 of this Senior Subordinated
Note Indenture.
"Representative" means the Senior Subordinated Note Trustee or
other trustee, agent or representative for any Senior Debt.
"Senior Debt" means (i) all Indebtedness of the Company or any of
its Restricted Subsidiaries outstanding under Credit Facilities and all Hedging
Obligations with respect thereto, (ii) any other Indebtedness permitted to be
incurred by the Company or any of its Restricted Subsidiaries under the terms of
this Senior Subordinated Note Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Senior Subordinated Notes or any
Guarantee of the Senior Subordinated Notes and (iii) all Obligations with
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respect to the foregoing. Notwithstanding anything to the contrary in the
foregoing, Senior Debt will not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company or any Subsidiary, (x) any
Indebtedness of the Company or any Subsidiary to any Subsidiaries of the Company
or to the Company, (y) any trade payables or (z) any Indebtedness that is
incurred in violation of this Senior Subordinated Note Indenture.
A distribution may consist of cash, securities or other property,
by set-off or otherwise.
Section 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment
in full in cash of all Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at the rate specified in
the agreement or instrument governing the applicable Senior Debt, whether or not
an allowable claim in such proceeding) before Holders of the Senior Subordinated
Notes shall be entitled to receive any payment with respect to the Senior
Subordinated Notes (except that Holders may receive and retain (i) Permitted
Junior Securities and (ii) payments and other distributions made from any
defeasance trust created pursuant to Section 8.01 hereof); and
(2) until all Obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full in cash, any distribution to
which Holders would be entitled but for this Article 10 shall be made to holders
of Senior Debt (except that Holders of Senior Subordinated Notes may receive (i)
Permitted Junior Securities and (ii) payments and other distributions made from
any defeasance trust created pursuant to Section 8.01 hereof), as their
interests may appear.
Section 10.04. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any payment or distribution to the
Senior Subordinated Note Trustee or any Holder in respect of Obligations upon or
in respect of the Senior Subordinated Notes and may not acquire from the Senior
Subordinated Note Trustee or any Holder any Senior Subordinated Notes for cash
or property (other than (i) in Permitted Junior Securities and (ii) from
payments and other distributions made from any defeasance trust created pursuant
to Section 8.01 hereof) until all principal and other Obligations with respect
to the Senior Debt have been paid in full in cash if:
(i) a default in the payment of any principal or other
Obligations with respect to Designated Senior Debt occurs and is
continuing; or
(ii) any other default occurs and is continuing with respect to
Designated Senior Debt that permits holders of the Designated Senior Debt
as to which such default relates to accelerate its maturity (or that would
permit such holders to accelerate with the giving of notice or the passage
of time or both) and the Senior Subordinated Note Trustee receives a notice
of the default (a "Payment Blockage Notice") from a Person who may give it
pursuant to Section 10.12 hereof. If the Senior Subordinated Note Trustee
receives any such Payment Blockage Notice, no subsequent Payment Blockage
Notice shall be effective for purposes of this Section unless and
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until (i) at least 360 days shall have elapsed since the effectiveness of
the immediately prior Payment Blockage Notice and (ii) all scheduled
payments of principal, premium, if any, and interest and Liquidated
Damages, if any, on the Senior Subordinated Notes that have come due have
been paid in full in cash. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Senior Subordinated Note Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been
waived for a period of not less than 90 days.
The Company may and shall resume payments on and distributions in
respect of the Senior Subordinated Notes and may acquire them upon the earlier
of:
(1) the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 10.04(ii)
hereof, 179 days after the date on which the applicable Payment Blockage Notice
is received, unless the maturity of any Designated Senior Debt has been
accelerated,
if this Article 10 otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.05. ACCELERATION OF SENIOR SUBORDINATED NOTES.
If payment of the Senior Subordinated Notes is accelerated
because of an Event of Default, the Company shall promptly notify holders of
Senior Debt of such acceleration.
Section 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Senior Subordinated Note Trustee or any
Holder receives any payment of any Obligations with respect to the Senior
Subordinated Notes at a time when the Senior Subordinated Note Trustee or such
Holder, as applicable, has actual knowledge that such payment is prohibited by
Article 10 hereof, such payment shall be held by the Senior Subordinated Note
Trustee or such Holder, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the Senior Subordinated
Note Indenture or other agreement (if any) pursuant to which Senior Debt may
have been issued, as their respective interests may appear, for application to
the payment of all Obligations with respect to Senior Debt remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
With respect to the holders of Senior Debt, the Senior
Subordinated Note Trustee undertakes to perform only such obligations on the
part of the Senior Subordinated Note Trustee as are specifically set forth in
this Article 10, and no implied covenants or obligations with respect to the
holders of Senior Debt shall be read into this Senior Subordinated Note
Indenture against the Senior Subordinated Note Trustee. The Senior Subordinated
Note Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt, and shall not be liable to any such holders if the Senior
Subordinated Note Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 10, except if such
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payment is made as a result of the willful misconduct or gross negligence of the
Senior Subordinated Note Trustee.
Section 10.07. NOTICE BY COMPANY.
The Company shall promptly notify the Senior Subordinated Note
Trustee and the Paying Agent of any facts known to the Company that would cause
a payment of any Obligations with respect to the Senior Subordinated Notes to
violate this Article 10, but failure to give such notice shall not affect the
subordination of the Senior Subordinated Notes to the Senior Debt as provided in
this Article 10.
Section 10.08. SUBROGATION.
After all Senior Debt is paid in full in cash and until the
Senior Subordinated Notes are paid in full, Holders of Senior Subordinated Notes
shall be subrogated (equally and ratably with all other Indebtedness pari passu
with the Senior Subordinated Notes) to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders of Senior Subordinated Notes have been applied
to the payment of Senior Debt. A distribution made under this Article 10 to
holders of Senior Debt that otherwise would have been made to Holders of Senior
Subordinated Notes is not, as between the Company and Holders, a payment by the
Company on the Senior Subordinated Notes.
Section 10.09. RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders of Senior
Subordinated Notes and holders of Senior Debt. Nothing in this Senior
Subordinated Note Indenture shall:
(1) impair, as between the Company and Holders of Senior
Subordinated Notes, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Senior Subordinated Notes
in accordance with their terms;
(2) affect the relative rights of Holders of Senior Subordinated
Notes and creditors of the Company other than their rights in relation to
holders of Senior Debt; or
(3) prevent the Senior Subordinated Note Trustee or any Holder of
Senior Subordinated Notes from exercising its available remedies upon a Default
or Event of Default, subject to (i) the rights of holders and owners of Senior
Debt to receive distributions and payments otherwise payable to Holders of
Senior Subordinated Notes and (ii) the notice provisions of Section 6.02 hereof.
If the Company fails because of this Article 10 to pay principal
of or interest on a Senior Subordinated Note on the due date, the failure is
still a Default or Event of Default.
Section 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Senior Subordinated Notes
shall be impaired by any act or failure to act by the Company or any Holder or
by the failure of the Company or any Holder to comply with this Senior
Subordinated Note Indenture.
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Section 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Senior Subordinated Note Trustee and the
Holders of Senior Subordinated Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon any certificate of
such Representative or of the liquidating Senior Subordinated Note Trustee or
agent or other Person making any distribution to the Senior Subordinated Note
Trustee or to the Holders of Senior Subordinated Notes for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10.
Section 10.12. RIGHTS OF SENIOR SUBORDINATED NOTE TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Senior Subordinated Note Indenture, the Senior Subordinated
Note Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment or distribution by the Senior
Subordinated Note Trustee, and the Senior Subordinated Note Trustee and the
Paying Agent may continue to make payments on the Senior Subordinated Notes,
unless the Senior Subordinated Note Trustee shall have received at its Corporate
Trust Office at least five Business Days prior to the date of such payment
written notice of facts that would cause the payment of any Obligations with
respect to the Senior Subordinated Notes to violate this Article 10. Only the
Company or a Representative may give the notice. Nothing in this Article 10
shall impair the claims of, or payments to, the Senior Subordinated Note Trustee
under or pursuant to Section 7.07 hereof.
The Senior Subordinated Note Trustee in its individual or any
other capacity may hold Senior Debt with the same rights it would have if it
were not Senior Subordinated Note Trustee. Any Agent may do the same with like
rights.
Section 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Senior Subordinated Notes, by the Holder's
acceptance thereof, authorizes and directs the Senior Subordinated Note Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article 10, and appoints the
Senior Subordinated Note Trustee to act as such Holder's attorney-in-fact for
any and all such purposes. If the Senior Subordinated Note Trustee does not file
a proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, the credit agents are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Senior Subordinated
Notes.
Section 10.14. AMENDMENTS.
The provisions of this Article 10 shall not be amended or
modified without the written consent of the holders of all Senior Debt.
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ARTICLE 11.
SUBORDINATED SUBSIDIARY GUARANTEES
Section 11.01. GUARANTEE.
Subject to this Article 11, each of the Senior Subordinated Note
Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Senior Subordinated Note authenticated and delivered by the Senior
Subordinated Note Trustee and to the Senior Subordinated Note Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Senior Subordinated Note Indenture, the Senior Subordinated Notes or the
obligations of the Company hereunder or thereunder, that: (a) the principal of
and interest on the Senior Subordinated Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Senior Subordinated Notes, if
any, if lawful, and all other obligations of the Company to the Holders or the
Senior Subordinated Note Trustee hereunder or thereunder will be promptly paid
in full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Senior
Subordinated Notes or any of such other obligations, that same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Senior Subordinated Note Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Senior Subordinated
Note Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Senior Subordinated Note Guarantors hereby agree that their
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Senior Subordinated Notes or this Senior
Subordinated Note Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Senior Subordinated Notes with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Senior
Subordinated Note Guarantor. Each Senior Subordinated Note Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Subordinated Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Senior
Subordinated Notes and this Senior Subordinated Note Indenture.
If any Holder or the Senior Subordinated Note Trustee is required
by any court or otherwise to return to the Company, the Senior Subordinated Note
Guarantors or any custodian, Senior Subordinated Note Trustee, liquidator or
other similar official acting in relation to either the Company or the Senior
Subordinated Note Guarantors, any amount paid by either to the Senior
Subordinated Note Trustee or such Holder, this Subordinated Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Senior Subordinated Note Guarantor agrees that it shall not
be entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Senior Subordinated Note Guarantor further agrees that,
as between the Senior Subordinated Note Guarantors, on the one hand, and the
Holders and the Senior Subordinated Note Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article 6 hereof for the purposes of this Subordinated Subsidiary Guarantee,
83
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Senior Subordinated Note Guarantors for
the purpose of this Subordinated Subsidiary Guarantee. The Senior Subordinated
Note Guarantors shall have the right to seek contribution from any non-paying
Senior Subordinated Note Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Subordinated Subsidiary
Guarantee.
Section 11.02. Subordination of Subordinated Subsidiary Guarantee.
The Obligations of each Senior Subordinated Note Guarantor under
its Subordinated Subsidiary Guarantee pursuant to this Article 11 shall be
junior and subordinated to the Senior Debt of such Senior Subordinated Note
Guarantor on the same basis as the Senior Subordinated Notes are junior and
subordinated to Senior Debt of the Company. For the purposes of the foregoing
sentence, the Senior Subordinated Note Trustee and the Holders shall have the
right to receive and/or retain payments by any of the Senior Subordinated Note
Guarantors only at such times as they may receive and/or retain payments in
respect of the Senior Subordinated Notes pursuant to this Senior Subordinated
Note Indenture, including Article 11 hereof.
Section 11.03. Limitation on Senior Subordinated Note Guarantor Liability.
Each Senior Subordinated Note Guarantor, and by its acceptance
of Senior Subordinated Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Subordinated Subsidiary Guarantee of such
Senior Subordinated Note Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Subordinated Subsidiary Guarantee. To effectuate
the foregoing intention, the Senior Subordinated Note Trustee, the Holders and
the Senior Subordinated Note Guarantors hereby irrevocably agree that the
obligations of such Senior Subordinated Note Guarantor under its Subordinated
Subsidiary Guarantee and this Article 11 shall be limited to the maximum amount
as will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Senior Subordinated Note Guarantor that are relevant
under such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Senior
Subordinated Note Guarantor in respect of the obligations of such other Senior
Subordinated Note Guarantor under this Article 11, result in the obligations of
such Senior Subordinated Note Guarantor under its Subordinated Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance.
Section 11.04. Execution and Delivery of Subordinated Subsidiary Guarantee.
To evidence its Subordinated Subsidiary Guarantee set forth in
Section 11.01, each Senior Subordinated Note Guarantor hereby agrees that a
notation of such Subordinated Subsidiary Guarantee substantially in the form
included in Exhibit E shall be endorsed by an Officer of such Senior
Subordinated Note Guarantor on each Senior Subordinated Note authenticated and
delivered by the Senior Subordinated Note Trustee and that this Senior
Subordinated Note Indenture shall be executed on behalf of such Senior
Subordinated Note Guarantor by its President or one of its Vice Presidents.
84
Each Senior Subordinated Note Guarantor hereby agrees that its
Subordinated Subsidiary Guarantee set forth in Section 11.01 shall remain in
full force and effect notwithstanding any failure to endorse on each Senior
Subordinated Note a notation of such Subordinated Subsidiary Guarantee.
If an Officer whose signature is on this Senior Subordinated Note
Indenture or on the Subordinated Subsidiary Guarantee no longer holds that
office at the time the Senior Subordinated Note Trustee authenticates the Senior
Subordinated Note on which a Subordinated Subsidiary Guarantee is endorsed, the
Subordinated Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Senior Subordinated Note by the Senior
Subordinated Note Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subordinated Subsidiary Guarantee set forth in
this Senior Subordinated Note Indenture on behalf of the Senior Subordinated
Note Guarantors.
In the event that the Company creates or acquires any new Subsidiaries
subsequent to the date of this Senior Subordinated Note Indenture, if required
by Section 4.17 hereof, the Company shall cause such Subsidiaries to execute
supplemental Senior Subordinated Note Indentures to this Senior Subordinated
Note Indenture and Subordinated Subsidiary Guarantees in accordance with Section
4.17 hereof and this Article 11, to the extent applicable.
Section 11.05. Senior Subordinated Note Guarantors May Consolidate, etc., on
Certain Terms.
No Senior Subordinated Note Guarantor may consolidate with or merge
with or into (whether or not such Senior Subordinated Note Guarantor is the
surviving Person) another Person whether or not affiliated with such Senior
Subordinated Note Guarantor unless:
(a) subject to Section 11.05 hereof, the Person formed by or surviving
any such consolidation or merger (if other than a Senior Subordinated Note
Guarantor or the Company) unconditionally assumes all the obligations of such
Senior Subordinated Note Guarantor, pursuant to a supplemental Senior
Subordinated Note Indenture in form and substance reasonably satisfactory to the
Senior Subordinated Note Trustee, under the Senior Subordinated Notes, this
Senior Subordinated Note Indenture, the Registration Rights Agreement and the
Subordinated Subsidiary Guarantee on the terms set forth herein or therein;
(b) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(c) the Company would be permitted, immediately after giving effect to
such transaction, to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental Senior Subordinated Note
Indenture, executed and delivered to the Senior Subordinated Note Trustee and
satisfactory in form to the Senior Subordinated Note Trustee, of the
Subordinated Subsidiary Guarantee endorsed upon the Senior Subordinated Notes
and the due and punctual performance of all of the covenants and conditions of
this Senior Subordinated Note Indenture to be performed by the Senior
Subordinated Note Guarantor, such successor Person shall succeed to and be
substituted for the Senior Subordinated Note Guarantor with the same effect as
if it had been named
85
herein as a Senior Subordinated Note Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Subordinated Subsidiary Guarantees to
be endorsed upon all of the Senior Subordinated Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Senior Subordinated Note Trustee. All the Subordinated Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Senior Subordinated Note Indenture as the Subordinated Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of this Senior
Subordinated Note Indenture as though all of such Subordinated Subsidiary
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Senior Subordinated Note
Indenture or in any of the Senior Subordinated Notes shall prevent any
consolidation or merger of a Senior Subordinated Note Guarantor with or into the
Company or another Senior Subordinated Note Guarantor, or shall prevent any sale
or conveyance of the property of a Senior Subordinated Note Guarantor as an
entirety or substantially as an entirety to the Company or another Senior
Subordinated Note Guarantor.
Section 11.06. Releases Following Sale of Assets.
In the event of (a) a sale or other disposition of all of the assets
of any Senior Subordinated Note Guarantor, by way of merger, consolidation or
otherwise, (b) a sale or other disposition of all of the capital stock of any
Senior Subordinated Note Guarantor or (c) the designation of a Senior
Subordinated Note Guarantor as an Unrestricted Subsidiary in accordance with the
terms of the Senior subordinated Note Indenture, then such Senior Subordinated
Note Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Senior
Subordinated Note Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets
of such Senior Subordinated Note Guarantor) will be released and relieved of any
obligations under its Subordinated Subsidiary Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Senior Subordinated Note Indenture, including
without limitation Section 4.10 hereof. Upon delivery by the Company to the
Senior Subordinated Note Trustee of an Officer's Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by the
Company in accordance with the applicable provisions of this Senior Subordinated
Note Indenture, including without limitation Section 4.10 hereof, the Senior
Subordinated Note Trustee shall execute any documents reasonably required in
order to evidence the release of any Senior Subordinated Note Guarantor from its
obligations under its Subordinated Subsidiary Guarantee.
Any Senior Subordinated Note Guarantor not released from its
obligations under its Subordinated Subsidiary Guarantee shall remain liable for
the full amount of principal of and interest on the Senior Subordinated Notes
and for the other obligations of any Senior Subordinated Note Guarantor under
this Senior Subordinated Note Indenture as provided in this Article 11.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Senior Subordinated Note Indenture limits,
qualifies or conflicts with the duties imposed by TIA (S) 318(c), the imposed
duties shall control.
86
Section 12.02. Notices.
Any notice or communication by the Company, any Senior Subordinated
Note Guarantor or the Senior Subordinated Note Trustee to the others is duly
given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address.
If to the Company and/or any Senior Subordinated Note Guarantor:
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Rise ▇▇▇▇▇▇
If to the Senior Subordinated Note Trustee:
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
The Company, any Senior Subordinated Note Guarantor or the Senior
Subordinated Note Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA (S) 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
87
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Senior Subordinated Note Trustee and each Agent at the
same time.
Section 12.03. Communication by Holders of Senior Subordinated Notes with Other
Holders of Senior Subordinated Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other
Holders with respect to their rights under this Senior Subordinated Note
Indenture or the Senior Subordinated Notes. The Company, the Senior Subordinated
Note Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Senior
Subordinated Note Trustee to take any action under this Senior Subordinated Note
Indenture, the Company shall furnish to the Senior Subordinated Note Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Senior Subordinated Note Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided for in
this Senior Subordinated Note Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Senior Subordinated Note Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Senior Subordinated Note Indenture
(other than a certificate provided pursuant to TIA (S) 314(a)(4)) shall comply
with the provisions of TIA (S) 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
88
Section 12.06. Rules by Senior Subordinated Note Trustee and Agents.
The Senior Subordinated Note Trustee may make reasonable rules
for action by or at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Senior Subordinated Note
Guarantor, as such, shall have any liability for any obligations of the Company
or such Senior Subordinated Note Guarantor under the Senior Subordinated Notes,
the Subordinated Subsidiary Guarantees, this Senior Subordinated Note Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Senior Subordinated Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Subordinated Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SENIOR SUBORDINATED NOTE INDENTURE, THE SENIOR
SUBORDINATED NOTES AND THE SUBORDINATED SUBSIDIARY GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Senior Subordinated Note Indenture may not be used to
interpret any other Senior Subordinated Note Indenture, loan or debt agreement
of the Company or its Subsidiaries or of any other Person. Any such Senior
Subordinated Note Indenture, loan or debt agreement may not be used to interpret
this Senior Subordinated Note Indenture.
Section 12.10. Successors.
All agreements of the Company in this Senior Subordinated Note
Indenture and the Senior Subordinated Notes shall bind its successors. All
agreements of the Senior Subordinated Note Trustee in this Senior Subordinated
Note Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Senior Subordinated Note Indenture
or in the Senior Subordinated Notes 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.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this Senior
Subordinated Note Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
89
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Senior Subordinated Note Indenture have been
inserted for convenience of reference only, are not to be considered a part of
this Senior Subordinated Note Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following page]
90
SIGNATURES
Dated as of May 18, ▇▇▇▇
▇&▇ Coal Holdings Corporation
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Treasurer and
Assistant Secretary
State Street Bank and Trust Company
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President
EXHIBIT A1
(Face of Senior Subordinated Note)
================================================================================
[Insert the Global Senior Subordinated Note Legend, if applicable pursuant to
the provisions of the Senior Subordinated Note Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Senior Subordinated Note Indenture]
CUSIP/CINS
9-5/8% [Series A] [Series B] Senior Subordinated Notes due 2008
No. $
--------- -----------
P&L Coal Holdings Corporation
promises to pay to ____________ or registered assigns, the principal sum of
________________________ Dollars on ________ __,2008.
Interest Payment Dates: ________ __, and ________ __
Record Dates: ________ __ and ________ __
Dated: ________ __, ▇▇▇▇
▇&▇ Coal Holdings Corporation
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
This is one of the [Global]
Senior Subordinated Notes referred to in the
within-mentioned Senior Subordinated Note Indenture:
State Street Bank and Trust Company,
as Senior Subordinated Note Trustee
By:
------------------------------------
================================================================================
A1-1
(Back of Senior Subordinated Note)
9-5/8% [Series A] [Series B] Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Senior Subordinated Note Indenture referred to below unless otherwise
indicated.
1. INTEREST. P&L Coal Holdings Corporation, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Senior
Subordinated Note at 9-5/8% per annum from May 18, 1998 until maturity and shall
pay the Liquidated Damages payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and
Liquidated Damages semi-annually on May 15 and November 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Senior Subordinated Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Senior Subordinated Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be November 15, 1998. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages to the
Persons who are registered Holders of Senior Subordinated Notes at the close of
business on the May 1 or November 1 next preceding the Interest Payment Date,
even if such Senior Subordinated Notes are canceled after such record date and
on or before such Interest Payment Date, except as provided in Section 2.12 of
the Senior Subordinated Note Indenture with respect to defaulted interest. The
Senior Subordinated Notes will be payable as to principal, premium and
Liquidated Damages, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Liquidated Damages may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest,
premium and Liquidated Damages on, all Global Senior Subordinated Notes and all
other Senior Subordinated Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and
Trust Company, the Senior Subordinated Note Trustee under the Senior
Subordinated Note Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. SENIOR SUBORDINATED NOTE INDENTURE. The Company issued the Senior
Subordinated Notes under an Senior Subordinated Note Indenture dated as of May
18, 1998 ("Senior Subordinated Note Indenture") between the Company and the
Senior Subordinated Note Trustee. The
A1-2
terms of the Senior Subordinated Notes include those stated in the Senior
Subordinated Note Indenture and those made part of the Senior Subordinated Note
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code (S)(S) 77aaa-77bbbb). The Senior Subordinated Notes are subject to all
such terms, and Holders are referred to the Senior Subordinated Note Indenture
and such Act for a statement of such terms. To the extent any provision of this
Senior Subordinated Note conflicts with the express provisions of the Senior
Subordinated Note Indenture, the provisions of the Senior Subordinated Note
Indenture shall govern and be controlling. The Senior Subordinated Notes are
obligations of the Company limited to $650.0 million in aggregate principal
amount.
5. OPTIONAL REDEMPTION.
(a) The Senior Subordinated Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice.
(b) Prior to May 15, 2003, the Senior Subordinated Notes will be
redeemable at a redemption price equal to 100% of the principal amount thereof
plus the applicable Senior Subordinated Notes Make Whole Premium, plus, to the
extent not included in the Senior Subordinated Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Subordinated Notes Make Whole Premium"
means, with respect to a Senior Subordinated Note, an amount equal to the
greater of (a) 104.813% of the outstanding principal amount of such Senior
Subordinated Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior
Subordinated Note as if such Senior Subordinated Note were redeemed on May 15,
2003, computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (2) the outstanding principal amount of such Senior Subordinated
Note.
(c) On or after May 15, 2003, the Senior Subordinated Notes are
redeemable at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2003........................ 104.813%
2004........................ 103.208%
2005........................ 101.604%
2006 and thereafter......... 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of this
Paragraph 5, during the first 36 months after the date of the closing of the
Acquisition, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture at a redemption price of 109.625% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the redemption date, with the net cash proceeds of
one or more Equity Offerings; provided that at least 65% of the aggregate
principal amount of Senior Subordinated Notes issued remain outstanding
immediately after the occurrence of such redemption (excluding Senior
Subordinated Notes held by the Company and its Subsidiaries); and provided,
further, that such redemption shall occur within 120 days of the date of the
closing of such Equity Offering.
A1-3
(e) Any redemption pursuant to this Paragraph 5 shall be made pursuant
to the provisions of Article 3 of the Senior Subordinated Note Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Senior
Subordinated Notes.
7. SPECIAL MANDATORY REDEMPTION.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Subordinated Notes
at a redemption price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of redemption.
8. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Senior Subordinated
Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase (the "Change of Control Payment"). Within 10 days
following any Change of Control, the Company shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Senior Subordinated Note Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales, within
five days of each date on which the aggregate amount of Excess Proceeds exceeds
$15.0 million, the Company shall commence an offer to all Holders of Senior
Subordinated Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the
Senior Subordinated Note Indenture to purchase the maximum principal amount of
Senior Subordinated Notes (including any Additional Senior Subordinated Notes)
that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the Senior
Subordinated Note Indenture. To the extent that the aggregate amount of Senior
Subordinated Notes (including any Additional Senior Subordinated Notes) tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
(or such Subsidiary) may use such deficiency for general corporate purposes. If
the aggregate principal amount of Senior Subordinated Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Senior Subordinated
Note Trustee shall select the Senior Subordinated Notes to be purchased on a pro
rata basis. Holders of Senior Subordinated Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to any
related purchase date and may elect to have such Senior Subordinated Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Senior Subordinated Notes.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its registered
address. Senior Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Senior
A1-4
Subordinated Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Senior Subordinated Notes or
portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Subordinated Notes may be
registered and Senior Subordinated Notes may be exchanged as provided in the
Senior Subordinated Note Indenture. The Registrar and the Senior Subordinated
Note Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Senior Subordinated Note
Indenture. The Company need not exchange or register the transfer of any Senior
Subordinated Note or portion of a Senior Subordinated Note selected for
redemption, except for the unredeemed portion of any Senior Subordinated Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Senior Subordinated Notes for a period of 15 days before a
selection of Senior Subordinated Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior
Subordinated Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Senior Subordinated Note Indenture, the Subordinated Subsidiary Guarantees
or the Senior Subordinated Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Senior Subordinated Notes and Additional Senior Subordinated Notes,
if any, voting as a single class, and any existing default or compliance with
any provision of the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes and Additional Senior Subordinated Notes, if any,
voting as a single class. Without the consent of any Holder of a Senior
Subordinated Note, the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Senior Subordinated Notes in addition to or in place of
certificated Senior Subordinated Notes, to provide for the assumption of the
Company's or Senior Subordinated Note Guarantor's obligations to Holders of the
Senior Subordinated Notes in case of a merger or consolidation, to make any
change that would provide any additional rights or benefits to the Holders of
the Senior Subordinated Notes or that does not adversely affect the legal rights
under the Senior Subordinated Note Indenture of any such Holder, to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Senior Subordinated Note Indenture under the Trust Indenture Act, to provide
for the Issuance of Additional Senior Subordinated Notes in accordance with the
limitations set forth in the Senior Subordinated Note Indenture, or to allow any
Senior Subordinated Note Guarantor to execute a supplemental Senior Subordinated
Note Indenture to the Senior Subordinated Note Indenture and/or a Subordinated
Subsidiary Guarantee with respect to the Senior Subordinated Notes. Without the
consent of at least 75% in principal amount of the Senior Subordinated Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange offer for, or purchase of, such Senior Subordinated Notes), no
waiver or amendment to the Senior Subordinated Note Indenture may make any
change in the provisions of Article 10 of the Senior Subordinated Note Indenture
that adversely affects the rights of any Holder of Senior Subordinated Notes.
13. DEFAULTS AND REMEDIES. An "Event of Default" occurs if: (i) the
Company defaults in the payment when due of interest on, or Liquidated Damages,
if any, with respect to, the Senior
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Subordinated Notes and such default continues for a period of 30 days (whether
or not prohibited by the subordination provisions of Article 10 of the Senior
Subordinated Note Indenture); (ii) the Company defaults in the payment when due
of principal of or premium, if any, on the Senior Subordinated Notes when the
same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise (whether or not prohibited by
the subordination provisions of Article 10 of the Senior Subordinated Note
Indenture); (iii) the Company or any of its Subsidiaries fails to make the offer
required or to purchase any of the Senior Subordinated Notes as required by
Sections 4.10 and/or 4.15 of the Senior Subordinated Note Indenture; (iv) the
Company fails to comply for 30 days after notice to the Company by the Senior
Subordinated Note Trustee with any of the provisions of Sections 4.07 or 4.09 of
the Senior Subordinated Note Indenture; or the Company fails to observe or
perform any other covenant, representation, warranty or other agreement in the
Senior Subordinated Note Indenture or the Senior Subordinated Notes for 60 days
after notice to the Company by the Senior Subordinated Note Trustee or the
Holders of at least 25% in aggregate principal amount of the Senior Subordinated
Notes then outstanding voting as a single class; (v) a default occurs under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of the Senior
Subordinated Note Indenture, which default results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of such Indebtedness aggregates $50.0 million or more; (vi) a final
judgment or final judgments for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any of its that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary and such judgment or judgments
remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $50.0 million; (vii) certain events of bankruptcy
or insolvency occur with respect to the Company or any of its Significant
Subsidiaries that are Restricted Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law; (viii) except as permitted
by the Senior Subordinated Note Indenture, any Subordinated Subsidiary Guarantee
is held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Senior Subordinated Note
Guarantor, or any Person acting on behalf of any Senior Subordinated Note
Guarantor, shall deny or disaffirm its obligations under such Senior
Subordinated Note Guarantor's Subordinated Subsidiary Guarantee; or (ix) the
Company fails to deposit the required amounts into the Escrow Account pursuant
to the Escrow Letter or any failure of the proceeds of the Escrow Account to be
applied as required under the Escrow Letter.
If any Event of Default occurs and is continuing, the Senior
Subordinated Note Trustee or the Holders of at least 25% in principal amount of
the then outstanding Senior Subordinated Notes may declare all the Senior
Subordinated Notes to be due and payable; provided, that so long as any
Designated Senior Debt is outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration under any Designated Senior Debt or
(ii) five Business Days after receipt by the Company and the Representative of
the Designated Senior Debt of written notice of such acceleration of the Senior
Subordinated Notes. Upon any such declaration, the Senior Subordinated Notes
shall become due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Senior Subordinated Notes will become due and
payable without further action or notice. Holders may not enforce the Senior
Subordinated Note Indenture or the Senior Subordinated Notes except as provided
in the Senior Subordinated Note Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Senior
A1-6
Subordinated Notes may direct the Senior Subordinated Note Trustee in its
exercise of any trust or power. The Senior Subordinated Note Trustee may
withhold from Holders of the Senior Subordinated Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount
of the Senior Subordinated Notes then outstanding by notice to the Senior
Subordinated Note Trustee may on behalf of the Holders of all of the Senior
Subordinated Notes waive any existing Default or Event of Default and its
consequences under the Senior Subordinated Note Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Senior Subordinated Notes. The Company is required to deliver to the Senior
Subordinated Note Trustee annually a statement regarding compliance with the
Senior Subordinated Note Indenture, and the Company is required upon becoming
aware of any Default or Event of Default, to deliver to the Senior Subordinated
Note Trustee a statement specifying such Default or Event of Default.
14. SENIOR SUBORDINATED NOTE TRUSTEE DEALINGS WITH COMPANY. The
Senior Subordinated Note Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not the Senior Subordinated Note Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Senior Subordinated Notes
or the Senior Subordinated Note Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Senior Subordinated Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Senior Subordinated Notes.
16. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Senior Subordinated Note
Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR
SUBORDINATED NOTES AND RESTRICTED DEFINITIVE SENIOR SUBORDINATED NOTES. In
addition to the rights provided to Holders of Senior Subordinated Notes under
the Senior Subordinated Note Indenture, Holders of Restricted Global Senior
Subordinated Notes and Restricted Definitive Senior Subordinated Notes shall
have all the rights set forth in the A/B Exchange Registration Rights Agreement
dated as of May 18, 1998, between the Company and the parties named on the
signature pages thereof or, in the case of Additional Senior Subordinated Notes,
Holders of Restricted Global Senior Subordinated Notes and Restricted Definitive
Senior Subordinated Notes shall have the rights set forth in one or more
registration rights agreements, if any, between the Company and the other
parties thereto, relating to rights given by the Company to the purchasers of
any Additional Senior Subordinated Notes (collectively, the "Registration Rights
Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Senior Subordinated Notes and the Senior
Subordinated Note Trustee may use CUSIP numbers in
A1-7
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Senior Subordinated
Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Senior Subordinated Note Indenture and/or the
Registration Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
A1-8
Assignment Form
To assign this Senior Subordinated Note, fill in the form below: (I) or (we)
assign and transfer this Senior Subordinated Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Senior Subordinated Note on the books of the Company. The
agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date:
----------- Your Signature:
-----------------------------------
______
(Sign exactly as your name appears on the face of this
Senior Subordinated Note)
Tax Identification No:
----------------------------
SIGNATURE GUARANTEE:
----------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A1-9
Option of Holder to Elect Purchase
If you want to elect to have this Senior Subordinated Note purchased
by the Company pursuant to Section 4.10 or 4.15 of the Senior Subordinated Note
Indenture, check the box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Senior Subordinated Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Senior
Subordinated Note Indenture, state the amount you elect to have purchased:
$________
Date:
--------------
Your Signature:
----------------------------------
______
(Sign exactly as your name appears on the face of this
Senior Subordinated Note)
Tax Identification No:
---------------------------
SIGNATURE GUARANTEE:
----------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A1-10
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL SENIOR SUBORDINATED NOTE/1/
The following exchanges of a part of this Global Senior Subordinated
Note for an interest in another Global Senior Subordinated Note or for a
Definitive Senior Subordinated Note, or exchanges of a part of another Global
Senior Subordinated Note or Definitive Senior Subordinated Note for an interest
in this Global Senior Subordinated Note, have been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase Senior authorized officer
Principal Amount in Principal Subordinated Note of Senior
of this Global Amount of this following such Subordinated
Senior Global Senior decrease (or Note Trustee or
Date of Exchange Subordinated Note Subordinated Note increase) Custodian
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/1/ THIS SHOULD BE INCLUDED ONLY IF THE SENIOR SUBORDINATED NOTE IS ISSUED IN
GLOBAL FORM.
A1-11
EXHIBIT A2
(Face of Regulation S Temporary Global Senior Subordinated Note)
================================================================================
EXHIBIT A2
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SENIOR
SUBORDINATED NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SENIOR SUBORDINATED NOTES, ARE AS SPECIFIED IN THE SENIOR
SUBORDINATED NOTE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SENIOR SUBORDINATED NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR
SUBORDINATED NOTES IN DEFINITIVE FORM, THIS SENIOR SUBORDINATED NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
A2-1
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE.
CUSIP/CINS
9-5/8% Series A Senior Subordinated Notes due 2008
No.____ $_______
P&L Coal Holdings Corporation
promises to pay to ____________ or registered assigns, the principal sum
of ________________________ Dollars on ________,2008.
Interest Payment Dates: ________ __, and ________ __
Record Dates: ________ __ and ________ __
Dated: ________ __, ▇▇▇▇
▇&▇ Coal Holdings Corporation
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
This is one of the [Global]
Senior Subordinated Notes referred to in the
within-mentioned Senior Subordinated Note Indenture:
State Street Bank and Trust Company,
as Senior Subordinated Note Trustee
By:
----------------------------------
================================================================================
A2-2
(Back of Regulation S Temporary Global Senior Subordinated Note)
9-5/8% Series A Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Senior Subordinated Note Indenture referred to below unless otherwise
indicated.
1. INTEREST. P&L Coal Holdings Corporation, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Senior
Subordinated Note at 9-5/8% per annum from May 18, 1998 until maturity and shall
pay the Liquidated Damages payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and
Liquidated Damages semi-annually on May 15 and November 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Senior Subordinated Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Senior Subordinated Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be November 15, 1998. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Until this Regulation S Temporary Global Senior Subordinated Note is
exchanged for one or more Regulation S Permanent Global Senior Subordinated
Notes, the Holder hereof shall not be entitled to receive payments of interest
hereon; until so exchanged in full, this Regulation S Temporary Global Senior
Subordinated Note shall in all other respects be entitled to the same benefits
as other Senior Subordinated Notes under the Senior Subordinated Note Indenture.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages to the
Persons who are registered Holders of Senior Subordinated Notes at the close of
business on the May 1 or November 1 next preceding the Interest Payment Date,
even if such Senior Subordinated Notes are canceled after such record date and
on or before such Interest Payment Date, except as provided in Section 2.12 of
the Senior Subordinated Note Indenture with respect to defaulted interest. The
Senior Subordinated Notes will be payable as to principal, premium, interest and
Liquidated Damages at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of
the Company, payment of interest and Liquidated Damages may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium and Liquidated
Damages on, all Global Senior Subordinated Notes and all other Senior
Subordinated Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
A2-3
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and
Trust Company, the Senior Subordinated Note Trustee under the Senior
Subordinated Note Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. SENIOR SUBORDINATED NOTE INDENTURE. The Company issued the Senior
Subordinated Notes under an Senior Subordinated Note Indenture dated as of May
18, 1998 ("Senior Subordinated Note Indenture") between the Company and the
Senior Subordinated Note Trustee. The terms of the Senior Subordinated Notes
include those stated in the Senior Subordinated Note Indenture and those made
part of the Senior Subordinated Note Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Senior
Subordinated Notes are subject to all such terms, and Holders are referred to
the Senior Subordinated Note Indenture and such Act for a statement of such
terms. The Senior Subordinated Notes are secured obligations of the Company
limited to $650.0 million in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) The Senior Subordinated Notes will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice.
(b) Prior to May 15, 2003, the Senior Subordinated Notes will be
redeemable at a redemption price equal to 100% of the principal amount thereof
plus the applicable Senior Subordinated Notes Make Whole Premium, plus, to the
extent not included in the Senior Subordinated Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Subordinated Notes Make Whole Premium"
means, with respect to a Senior Subordinated Note, an amount equal to the
greater of (a) 104.813% of the outstanding principal amount of such Senior
Subordinated Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior
Subordinated Note as if such Senior Subordinated Note were redeemed on May 15,
2003, computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (2) the outstanding principal amount of such Senior Subordinated
Note.
(c) On or after May 15, 2003, the Senior Subordinated Notes are
redeemable at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2003.......................................... 104.813%
2004.......................................... 103.208%
2005.......................................... 101.604%
2006 and thereafter........................... 100.000%
(d) Notwithstanding the provisions of clauses (a), (b) and (c) of
this Paragraph 5, during the first 36 months after the date of the closing of
the Acquisition, the Company may on any one or more occasions redeem up to 35%
of the aggregate principal amount of Senior Subordinated Notes issued under this
Senior Subordinated Note Indenture at a redemption price of 109.625% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the
A2-4
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Senior
Subordinated Notes issued remain outstanding immediately after the occurrence of
such redemption (excluding Senior Subordinated Notes held by the Company and its
Subsidiaries); and provided, further, that such redemption shall occur within
120 days of the date of the closing of such Equity Offering.
(e) Any redemption pursuant to this Paragraph 5 shall be made
pursuant to the provisions of Article 3 of the Senior Subordinated Note
Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Senior
Subordinated Notes.
7. SPECIAL MANDATORY REDEMPTION.
In the event that the Escrow Account is released without the
consummation of the Acquisition (or if the Acquisition is not consummated within
30 days of such deposit), the Company shall redeem the Senior Subordinated Notes
at a redemption price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of redemption.
8. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Senior Subordinated
Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase (the
"Change of Control Payment"). Within 10 days following any Change of Control,
the Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Senior Subordinated
Note Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company shall commence an offer to all Holders of
Senior Subordinated Notes (as "Asset Sale Offer") pursuant to Section 3.09 of
the Senior Subordinated Note Indenture to purchase the maximum principal amount
of Senior Subordinated Notes that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the Senior
Subordinated Note Indenture. To the extent that the aggregate amount of Senior
Subordinated Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company (or such Subsidiary) may use such deficiency for
general corporate purposes. If the aggregate principal amount of Senior
Subordinated Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Senior Subordinated Note Trustee shall select the Senior
Subordinated Notes to be purchased on a pro rata basis. Holders of Senior
Subordinated Notes that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have such Senior Subordinated Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Senior
Subordinated Notes.
A2-5
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its registered
address. Senior Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Senior
Subordinated Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Senior Subordinated Notes or
portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Subordinated Notes may be
registered and Senior Subordinated Notes may be exchanged as provided in the
Senior Subordinated Note Indenture. The Registrar and the Senior Subordinated
Note Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Senior Subordinated Note
Indenture. The Company need not exchange or register the transfer of any Senior
Subordinated Note or portion of a Senior Subordinated Note selected for
redemption, except for the unredeemed portion of any Senior Subordinated Note
being redeemed in part. Also, it need not exchange or register the transfer of
any Senior Subordinated Notes for a period of 15 days before a selection of
Senior Subordinated Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
This Regulation S Temporary Global Senior Subordinated Note is
exchangeable in whole or in part for one or more Global Senior Subordinated
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Senior
Subordinated Note Indenture. Upon exchange of this Regulation S Temporary
Global Senior Subordinated Note for one or more Global Senior Subordinated
Notes, the Senior Subordinated Note Trustee shall cancel this Regulation S
Temporary Global Senior Subordinated Note.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior
Subordinated Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Senior Subordinated Note Indenture, the Subordinated Subsidiary Guarantees
or the Senior Subordinated Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Senior Subordinated Notes and Additional Senior Subordinated Notes,
if any, voting as a single class, and any existing default or compliance with
any provision of the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes and Additional Senior Subordinated Notes, if any,
voting as a single class. Without the consent of any Holder of a Senior
Subordinated Note, the Senior Subordinated Note Indenture, the Subordinated
Subsidiary Guarantees or the Senior Subordinated Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Senior Subordinated Notes in addition to or in place of
certificated Senior Subordinated Notes, to provide for the assumption of the
Company's or Senior Subordinated Note Guarantor's obligations to Holders of the
Senior Subordinated Notes in case of a merger or consolidation, to make any
change that would provide any additional rights or benefits to the Holders of
the Senior Subordinated Notes or that does not adversely affect the legal rights
under the Senior Subordinated Note Indenture of any such Holder, to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Senior Subordinated
A2-6
Note Indenture under the Trust Indenture Act, to provide for the Issuance of
Additional Senior Subordinated Notes in accordance with the limitations set
forth in the Senior Subordinated Note Indenture, or to allow any Senior
Subordinated Note Guarantor to execute a supplemental Senior Subordinated Note
Indenture to the Senior Subordinated Note Indenture and/or a Subordinated
Subsidiary Guarantee with respect to the Senior Subordinated Notes. Without the
consent of at least 75% in principal amount of the Senior Subordinated Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange offer for, or purchase of, such Senior Subordinated Notes), no
waiver or amendment to the Senior Subordinated Note Indenture may make any
change in the provisions of Article 10 of the Senior Subordinated Note Indenture
that adversely affects the rights of any Holder of Senior Subordinated Notes.
13. DEFAULTS AND REMEDIES. An "Event of Default" occurs if: (i) the
Company defaults in the payment when due of interest on, or Liquidated Damages,
if any, with respect to, the Senior Subordinated Notes and such default
continues for a period of 30 days (whether or not prohibited by the
subordination provisions of Article 10 of the Senior Subordinated Note
Indenture); (ii) the Company defaults in the payment when due of principal of or
premium, if any, on the Senior Subordinated Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise (whether or not prohibited by the subordination
provisions of Article 10 of the Senior Subordinated Note Indenture); (iii) the
Company or any of its Subsidiaries fails to make the offer required or to
purchase any of the Senior Subordinated Notes as required by Sections 4.10
and/or 4.15 of the Senior Subordinated Note Indenture; (iv) the Company fails to
comply for 30 days after notice to the Company by the Senior Subordinated Note
Trustee with any of the provisions of Sections 4.07 or 4.09 of the Senior
Subordinated Note Indenture; or the Company fails to observe or perform any
other covenant, representation, warranty or other agreement in the Senior
Subordinated Note Indenture or the Senior Subordinated Notes for 60 days after
notice to the Company by the Senior Subordinated Note Trustee or the Holders of
at least 25% in aggregate principal amount of the Senior Subordinated Notes then
outstanding voting as a single class; (v) a default occurs under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists, or is created after the date of the Senior Subordinated
Note Indenture, which default results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of such
Indebtedness aggregates $50.0 million or more; (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any of its that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary and such judgment or judgments remain undischarged for
a period (during which execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such undischarged judgments exceeds $50.0
million; (vii) certain events of bankruptcy or insolvency occur with respect to
the Company or any of its Significant Subsidiaries that are Restricted
Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law; (viii) except as permitted by the Senior Subordinated Note
Indenture, any Subordinated Subsidiary Guarantee is held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Senior Subordinated Note Guarantor, or any Person
acting on behalf of any Senior Subordinated Note Guarantor, shall deny or
disaffirm its obligations under such Senior Subordinated Note Guarantor's
Subordinated Subsidiary Guarantee; or (ix) the Company fails to deposit the
required amounts into the Escrow Account pursuant to the Escrow Letter or any
failure of the proceeds of the Escrow Account to be applied as required under
the Escrow Letter.
A2-7
If any Event of Default occurs and is continuing, the Senior
Subordinated Note Trustee or the Holders of at least 25% in principal amount of
the then outstanding Senior Subordinated Notes may declare all the Senior
Subordinated Notes to be due and payable; provided, that so long as any
Designated Senior Debt is outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration under any Designated Senior Debt or
(ii) five Business Days after receipt by the Company and the Representative of
the Designated Senior Debt of written notice of such acceleration of the Senior
Subordinated Notes. Upon any such declaration, the Senior Subordinated Notes
shall become due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Senior Subordinated Notes will become due and
payable without further action or notice. Holders may not enforce the Senior
Subordinated Note Indenture or the Senior Subordinated Notes except as provided
in the Senior Subordinated Note Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Senior
Subordinated Notes may direct the Senior Subordinated Note Trustee in its
exercise of any trust or power. The Senior Subordinated Note Trustee may
withhold from Holders of the Senior Subordinated Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount of
the Senior Subordinated Notes then outstanding by notice to the Senior
Subordinated Note Trustee may on behalf of the Holders of all of the Senior
Subordinated Notes waive any existing Default or Event of Default and its
consequences under the Senior Subordinated Note Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Senior Subordinated Notes. The Company is required to deliver to the Senior
Subordinated Note Trustee annually a statement regarding compliance with the
Senior Subordinated Note Indenture, and the Company is required upon becoming
aware of any Default or Event of Default, to deliver to the Senior Subordinated
Note Trustee a statement specifying such Default or Event of Default.
14. SENIOR SUBORDINATED NOTE TRUSTEE DEALINGS WITH COMPANY. The
Senior Subordinated Note Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not the Senior Subordinated Note Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or any of the Senior Subordinated
Note Guarantors, as such, shall not have any liability for any obligations of
the Company or such Senior Subordinated Note Guarantor under the Senior
Subordinated Notes, the Subordinated Subsidiary Guarantees or the Senior
Subordinated Note Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Senior
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Senior Subordinated Notes.
16. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Senior Subordinated Note
Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR
SUBORDINATED NOTES AND RESTRICTED DEFINITIVE SENIOR SUBORDINATED NOTES. In
addition to the rights provided to
A2-8
Holders of Senior Subordinated Notes under the Senior Subordinated Note
Indenture, Holders of Restricted Global Senior Subordinated Notes and Restricted
Definitive Senior Subordinated Notes shall have all the rights set forth in the
A/B Exchange Registration Rights Agreement dated as of May 18, 1998, between the
Company and the parties named on the signature pages thereof or, in the case of
Additional Senior Subordinated Notes, Holders of Restricted Global Senior
Subordinated Notes and Restricted Definitive Senior Subordinated Notes shall
have the rights set forth in one or more registration rights agreements, if any,
between the Company and the other parties thereto, relating to rights given by
the Company to the purchasers of any Additional Senior Subordinated Notes
(collectively, the "Registration Rights Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Senior Subordinated Notes and the Senior
Subordinated Note Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Senior Subordinated Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
A2-9
The Company will furnish to any Holder upon written request and
without charge a copy of the Senior Subordinated Note Indenture and/or the
Registration Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
A2-10
Assignment Form
To assign this Senior Subordinated Note, fill in the form below: (I) or (we)
assign and transfer this Senior Subordinated Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________________________________________
________________
to transfer this Senior Subordinated Note on the books of the Company. The agent
may substitute another to act for him.
--------------------------------------------------------------------------------
Date:
------------
Your Signature:
-----------------------------------
---------
(Sign exactly as your name appears on the face of
this Senior Subordinated Note)
Tax Identification No:
----------------------------
SIGNATURE GUARANTEE:
---------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A2-11
Option of Holder to Elect Purchase
If you want to elect to have this Senior Subordinated Note purchased
by the Company pursuant to Section 4.10 or 4.15 of the Senior Subordinated Note
Indenture, check the appropriate box below:
[_]Section 4.10 [_]Section 4.15
If you want to elect to have only part of the Senior Subordinated Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Senior
Subordinated Note Indenture, state the amount you elect to have purchased:
$___________
--------------------------------------------------------------------------------
Date:
--------------
Your Signature:
-----------------------------------
---------
(Sign exactly as your name appears on the face of this
Senior Subordinated Note)
Tax Identification No:
----------------------------
SIGNATURE GUARANTEE:
---------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A2-12
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE REGULATION S TEMPORARY GLOBAL SENIOR SUBORDINATED NOTE
The following exchanges of a part of this Regulation S Temporary
Global Senior Subordinated Note for an interest in another Global Senior
Subordinated Note, or of other Restricted Global Senior Subordinated Notes for
an interest in this Regulation S Temporary Global Senior Subordinated Note, have
been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase Senior authorized officer
Principal Amount in Principal Subordinated Note of Senior
of this Global Amount of this following such Subordinated
Senior Global Senior decrease (or Note Trustee or
Date of Exchange Subordinated Note Subordinated Note increase) Custodian
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A2-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: 9-5/8% Senior Subordinated Notes due 2008
-----------------------------------------
(CUSIP __________)
Reference is hereby made to the Senior Subordinated Note Indenture,
dated as of May 18, 1998 (the "Senior Subordinated Note Indenture"), between P&L
Coal Holdings Corporation, as issuer (the "Company"), and State Street Bank and
Trust Company, as Senior Subordinated Note Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Senior
Subordinated Note Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Senior Subordinated Note[s] or interest in such Senior Subordinated Note[s]
specified in Annex A hereto, in the principal amount of $___________ in such
Senior Subordinated Note[s] or interests (the "Transfer"), to __________ (the
"Transferee"), as further specified in Annex A hereto. In connection with the
Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
144A Global Senior Subordinated Note or a Definitive Senior Subordinated Note
-----------------------------------------------------------------------------
Pursuant to Rule 144A. The Transfer is being effected pursuant to and in
---------------------
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Senior Subordinated Note is
being transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Definitive Senior Subordinated
Note for its own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Senior Subordinated Note and/or the Definitive Senior
Subordinated Note and in the Senior Subordinated Note Indenture and the
Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
Temporary Regulation S Global Senior Subordinated Note, the Regulation S Global
-------------------------------------------------------------------------------
Senior Subordinated Note or a Definitive Senior Subordinated Note pursuant to
-----------------------------------------------------------------------------
Regulation S. The Transfer is being effected pursuant to and in accordance with
------------
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act and, (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Senior Subordinated Note, the Temporary Regulation S
Global Senior Subordinated Note and/or the Definitive Senior Subordinated Note
and in the Senior Subordinated Note Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
-------------------------------------------------------------------
interest in the IAI Global Senior Subordinated Note or a Definitive Senior
--------------------------------------------------------------------------
Subordinated Note pursuant to any provision of the Securities Act other than
----------------------------------------------------------------------------
Rule 144A or Regulation S. The Transfer is being effected in compliance with
-------------------------
the transfer restrictions applicable to beneficial interests in Restricted
Global Senior Subordinated Notes and Restricted Definitive Senior Subordinated
Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Senior Subordinated Note or Restricted Definitive Senior
Subordinated Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Senior Subordinated Note Indenture and (2) if such
Transfer is in respect of a principal amount of Senior Subordinated Notes at the
time of transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Senior Subordinated Note and/or the Definitive Senior
Subordinated Notes and in the Senior Subordinated Note Indenture and the
Securities Act.
B-2
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Senior Subordinated Note or of an Unrestricted Definitive
Senior Subordinated Note.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Senior
Subordinated Note Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Senior Subordinated Note Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Senior
Subordinated Note Indenture, the transferred beneficial interest or Definitive
Senior Subordinated Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Senior Subordinated Notes, on Restricted Definitive Senior Subordinated
Notes and in the Senior Subordinated Note Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Senior Subordinated Note Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Senior Subordinated Note Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Senior Subordinated Note Indenture, the transferred beneficial
interest or Definitive Senior Subordinated Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Senior Subordinated Notes, on Restricted Definitive Senior
Subordinated Notes and in the Senior Subordinated Note Indenture.
(c) [_] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Senior Subordinated Note Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Senior Subordinated Note Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Senior Subordinated Note Indenture, the transferred beneficial interest or
Definitive Senior Subordinated Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Senior Subordinated Notes or Restricted Definitive Senior Subordinated
Notes and in the Senior Subordinated Note Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated: ________ __, ____
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Senior Subordinated Note (CUSIP _________), or
(ii) [_] Regulation S Global Senior Subordinated Note (CUSIP_______), or
(iii) [_] IAI Global Senior Subordinated Note (CUSIP ________); or
(b) [_] a Restricted Definitive Senior Subordinated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Senior Subordinated Note (CUSIP _____), or
(ii) [_] Regulation S Global Senior Subordinated Note (CUSIP ___), or
(iii) [_] IAI Global Senior Subordinated Note (CUSIP _______); or
(iv) [_] Unrestricted Global Senior Subordinated Note (CUSIP____); or
(b) [_] a Restricted Definitive Senior Subordinated Note; or
(c) [_] an Unrestricted Definitive Senior Subordinated Note,
in accordance with the terms of the Senior Subordinated Note Indenture.
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇&▇ Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: 9-5/8% Senior Subordinated Notes due 2008
-----------------------------------------
(CUSIP __________)
Reference is hereby made to the Senior Subordinated Note Indenture,
dated as of May 18, 1998 (the "Senior Subordinated Note Indenture"), between P&L
Coal Holdings Corporation, as issuer (the "Company"), and State Street Bank and
Trust Company, as Senior Subordinated Note Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Senior
Subordinated Note Indenture.
____________, (the "Owner") owns and proposes to exchange the Senior
Subordinated Note[s] or interest in such Senior Subordinated Note[s] specified
herein, in the principal amount of $____________ in such Senior Subordinated
Note[s] or interests (the "Exchange"). In connection with the Exchange, the
Owner hereby certifies that:
1. Exchange of Restricted Definitive Senior Subordinated Notes or Beneficial
Interests in a Restricted Global Senior Subordinated Note for Unrestricted
Definitive Senior Subordinated Notes or Beneficial Interests in an Unrestricted
Global Senior Subordinated Note
(a) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Senior Subordinated Note to beneficial interest in an
-----------------------------------------------------------------------
Unrestricted Global Senior Subordinated Note. In connection with the Exchange of
--------------------------------------------
the Owner's beneficial interest in a Restricted Global Senior Subordinated Note
for a beneficial interest in an Unrestricted Global Senior Subordinated Note in
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Senior Subordinated Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Senior
Subordinated Note Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Senior Subordinated Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Senior Subordinated Note to Unrestricted Definitive Senior
----------------------------------------------------------------------------
Subordinated Note. In connection with the Exchange of the Owner's beneficial
-----------------
interest in a Restricted Global Senior Subordinated Note for an Unrestricted
Definitive Senior Subordinated Note, the Owner hereby certifies (i) the
Definitive Senior Subordinated Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Senior
Subordinated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Senior Subordinated Note
Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Definitive Senior Subordinated Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(c) [_] Check if Exchange is from Restricted Definitive Senior
------------------------------------------------------
Subordinated Note to beneficial interest in an Unrestricted Global Senior
-------------------------------------------------------------------------
Subordinated Note. In connection with the Owner's Exchange of a Restricted
-----------------
Definitive Senior Subordinated Note for a beneficial interest in an Unrestricted
Global Senior Subordinated Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Senior Subordinated Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Subordinated Note Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) [_] Check if Exchange is from Restricted Definitive Senior
------------------------------------------------------
Subordinated Note to Unrestricted Definitive Senior Subordinated Note. In
---------------------------------------------------------------------
connection with the Owner's Exchange of a Restricted Definitive Senior
Subordinated Note for an Unrestricted Definitive Senior Subordinated Note, the
Owner hereby certifies (i) the Unrestricted Definitive Senior Subordinated Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Senior Subordinated Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Subordinated Note Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Senior Subordinated Note is being acquired
in compliance with any applicable blue sky securities laws of any state of the
United States.
2. Exchange of Restricted Definitive Senior Subordinated Notes or Beneficial
Interests in Restricted Global Senior Subordinated Notes for Restricted
Definitive Senior Subordinated Notes or Beneficial Interests in Restricted
Global Senior Subordinated Notes
(a) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Senior Subordinated Note to Restricted Definitive Senior
--------------------------------------------------------------------------
Subordinated Note. In connection with the Exchange of the Owner's beneficial
-----------------
interest in a Restricted Global Senior Subordinated Note for a Restricted
Definitive Senior Subordinated Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Senior Subordinated Note is
being acquired for the Owner's own account without transfer. Upon consummation
of the proposed Exchange in accordance with the terms of the Senior Subordinated
Note Indenture, the Restricted Definitive Senior Subordinated Note issued will
continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Senior Subordinated Note
and in the Senior Subordinated Note Indenture and the Securities Act.
(b) [_] Check if Exchange is from Restricted Definitive Senior
------------------------------------------------------
Subordinated Note to beneficial interest in a Restricted Global Senior
----------------------------------------------------------------------
Subordinated Note. In connection with the Exchange of the Owner's Restricted
-----------------
Definitive Senior Subordinated Note for a beneficial interest in the [CHECK ONE]
[_] 144A Global Senior Subordinated Note, [_] Regulation S Global Senior
Subordinated Note, [_] IAI Global Senior Subordinated Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global
C-2
Senior Subordinated Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Senior Subordinated Note Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Senior
Subordinated Note and in the Senior Subordinated Note Indenture and the
Securities Act.
C-3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
---------------------------------
[Insert Name of Owner]
By:
---------------------------
Name:
Title:
Dated: ________________, ____
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: 9-5/8% Senior Subordinated Notes due 2008
-----------------------------------------
(CUSIP __________)
Reference is hereby made to the Senior Subordinated Note Indenture,
dated as of May 18, 1998 (the "Senior Subordinated Note Indenture"), between P&L
Coal Holdings Corporation, as issuer (the "Company"), and State Street Bank and
Trust Company, as Senior Subordinated Note Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Senior
Subordinated Note Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Senior Subordinated
Note, or
(b) [_] a Definitive Senior Subordinated Note,
we confirm that:
1. We understand that any subsequent transfer of the Senior
Subordinated Notes or any interest therein is subject to certain restrictions
and conditions set forth in the Senior Subordinated Note Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Senior Subordinated Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior
Subordinated Notes have not been registered under the Securities Act, and that
the Senior Subordinated Notes and any interest therein may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell the Senior Subordinated Notes or any interest therein, we
will do so only (A) to the Company or any subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (c) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you and to the Company a signed letter substantially
in the form of this letter and, if such transfer is in respect of a principal
amount of Senior Subordinated Notes, at the time of transfer of less than
$250,000, an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing the
Definitive Senior Subordinated Note or beneficial interest in a Global Senior
Subordinated Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Senior
Subordinated Notes or beneficial interest therein, we will be required to
furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand
that the Senior Subordinated Notes purchased by us will bear a legend to the
foregoing effect. We further understand that any subsequent transfer by us of
the Senior Subordinated Notes or beneficial interest therein acquired by us must
be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Senior
Subordinated Notes, and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
5. We are acquiring the Senior Subordinated Notes or beneficial
interest therein purchased by us for our own account or for one or more accounts
(each of which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
--------------------------------------------
[Insert Name of Accredited Investor]
By:
-------------------------------
Name:
Title:
Dated: __________________, ____
D-2
EXHIBIT E
FORM OF NOTATION OF SUBORDINATED SUBSIDIARY GUARANTEE
For value received, each Senior Subordinated Note Guarantor (which
term includes any successor Person under the Senior Subordinated Note Indenture)
has, jointly and severally, unconditionally guaranteed, to the extent set forth
in the Senior Subordinated Note Indenture and subject to the provisions in the
Senior Subordinated Note Indenture dated as of May 18, 1998 (the "Senior
Subordinated Note Indenture") among P&L Coal Holdings Corporation, the Senior
Subordinated Note Guarantors listed on Schedule I thereto and State Street Bank
and Trust Company, as Senior Subordinated Note Trustee (the "Senior Subordinated
Note Trustee"), (a) the due and punctual payment of the principal of, premium,
if any, and interest on the Senior Subordinated Notes (as defined in the Senior
Subordinated Note Indenture), whether at maturity, by acceleration, redemption
or otherwise, the due and punctual payment of interest on overdue principal and
premium, and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the Senior
Subordinated Note Trustee all in accordance with the terms of the Senior
Subordinated Note Indenture and (b) in case of any extension of time of payment
or renewal of any Senior Subordinated Notes or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Senior Subordinated Note
Guarantors to the Holders of Senior Subordinated Notes and to the Senior
Subordinated Note Trustee pursuant to the Subordinated Subsidiary Guarantee and
the Senior Subordinated Note Indenture are expressly set forth in Article 11 of
the Senior Subordinated Note Indenture and reference is hereby made to the
Senior Subordinated Note Indenture for the precise terms of the Subordinated
Subsidiary Guarantee. Each Holder of a Senior Subordinated Note, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Senior Subordinated Note Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Senior Subordinated Note Indenture and (c)
appoints the Senior Subordinated Note Trustee attorney-in-fact of such Holder
for such purpose; provided, however, that the Indebtedness evidenced by this
Subordinated Subsidiary Guarantee shall cease to be so subordinated and subject
in right of payment upon any defeasance of this Senior Subordinated Note in
accordance with the provisions of the Senior Subordinated Note Indenture.
[Name of Senior Subordinated Note Guarantor(s)]
By:
--------------------------------
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
TO BE DELIVERED BY SUBSEQUENT SENIOR SUBORDINATED NOTE GUARANTORS
Supplemental Senior Subordinated Note Indenture (this "Supplemental
Senior Subordinated Note Indenture"), dated as of ________________, among
__________________ (the "Guaranteeing Subsidiary"), a subsidiary of P&L Coal
Holdings Corporation (or its permitted successor), a Delaware corporation (the
"Company"), the Company, the other Senior Subordinated Note Guarantors (as
defined in the Senior Subordinated Note Indenture referred to herein) and State
Street Bank and Trust Company, as Senior Subordinated Note Trustee under the
Senior Subordinated Note Indenture referred to below (the "Senior Subordinated
Note Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Senior Subordinated Note Trustee an Senior Subordinated Note Indenture (the
"Senior Subordinated Note Indenture"), dated as of May 18, 1998 providing for
the issuance of an aggregate principal amount of up to $650.0 million of 9-5/8%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes");
WHEREAS, the Senior Subordinated Note Indenture provides that under
certain circumstances the Guaranteeing Subsidiary shall execute and deliver to
the Senior Subordinated Note Trustee a supplemental Senior Subordinated Note
Indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Senior Subordinated Notes
and the Senior Subordinated Note Indenture on the terms and conditions set forth
herein (the "Subordinated Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee is authorized to execute and
deliver this Supplemental Senior Subordinated Note Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Senior Subordinated Note Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Senior Subordinated Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Subordinated
Note Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Senior Subordinated Note Guarantors
named in the Senior Subordinated Note Indenture, to jointly and
severally Guarantee to each Holder of a Senior Subordinated
Note authenticated and delivered by the Senior Subordinated
Note Trustee and to the Senior Subordinated Note Trustee and
its successors and assigns, irrespective of the validity and
enforceability of the Senior Subordinated Note Indenture, the
Senior Subordinated Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Senior Subordinated
Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the
Senior Subordinated Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the
Senior Subordinated Note Trustee hereunder or thereunder
will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Senior Subordinated Notes or any of such other
obligations, that same will be promptly paid in full when
due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of
any amount so guaranteed or any performance so guaranteed
for whatever reason, the Senior Subordinated Note
Guarantors shall be jointly and severally obligated to
pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of
the Senior Subordinated Notes or the Senior Subordinated Note
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Senior Subordinated
Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense
of a Senior Subordinated Note Guarantor.
(c) The following is hereby waived: diligence presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever.
(d) This Subordinated Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in
the Senior Subordinated Notes and the Senior Subordinated Note
Indenture.
(e) If any Holder or the Senior Subordinated Note Trustee is
required by any court or otherwise to return to the Company,
the Senior Subordinated Note Guarantors, or any custodian,
Senior Subordinated Note Trustee, liquidator or other similar
official acting in relation to either the Company or the Senior
Subordinated Note Guarantors, any amount paid by either to the
Senior Subordinated Note Trustee or such Holder, this
Subordinated Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right
of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
F-2
(g) As between the Senior Subordinated Note Guarantors, on the one
hand, and the Holders and the Senior Subordinated Note Trustee,
on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6
of the Senior Subordinated Note Indenture for the purposes of
this Subordinated Subsidiary Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Senior Subordinated
Note Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Senior
Subordinated Note Guarantors for the purpose of this
Subordinated Subsidiary Guarantee.
(h) The Senior Subordinated Note Guarantors shall have the right to
seek contribution from any non-paying Senior Subordinated Note
Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Subordinated Subsidiary
Guarantee.
(i) Pursuant to Section 11.02 of the Senior Subordinated Note
Indenture, after giving effect to any maximum amount and any
other contingent and fixed liabilities that are relevant under
any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other
Senior Subordinated Note Guarantor in respect of the
obligations of such other Senior Subordinated Note Guarantor
under Article 11 of the Senior Subordinated Note Indenture
shall result in the obligations of such Senior Subordinated
Note Guarantor under its Subordinated Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees
that the Subordinated Subsidiary Guarantees shall remain in full force and
effect notwithstanding any failure to endorse on each Senior Subordinated Note a
notation of such Subordinated Subsidiary Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) The Guaranteeing Subsidiary may not consolidate with or merge with or
into (whether or not such Senior Subordinated Note Guarantor is the
surviving Person) another corporation, Person or entity whether or
not affiliated with such Senior Subordinated Note Guarantor unless:
(i) subject to Section 11.05 of the Senior Subordinated Note
Indenture, the Person formed by or surviving any such
consolidation or merger (if other than a Senior Subordinated
Note Guarantor or the Company) unconditionally assumes all the
obligations of such Senior Subordinated Note Guarantor,
pursuant to a supplemental Senior Subordinated Note Indenture
in form and substance reasonably satisfactory to the Senior
Subordinated Note Trustee, under the Senior Subordinated Notes,
the Senior Subordinated Note Indenture and the Subordinated
Subsidiary Guarantee on the terms set forth herein or therein;
and
F-3
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
Senior Subordinated Note Indenture, executed and delivered to the
Senior Subordinated Note Trustee and satisfactory in form to the
Senior Subordinated Note Trustee, of the Subordinated Subsidiary
Guarantee endorsed upon the Senior Subordinated Notes and the due and
punctual performance of all of the covenants and conditions of the
Senior Subordinated Note Indenture to be performed by the Senior
Subordinated Note Guarantor, such successor corporation shall succeed
to and be substituted for the Senior Subordinated Note Guarantor with
the same effect as if it had been named herein as a Senior
Subordinated Note Guarantor. Such successor corporation thereupon may
cause to be signed any or all of the Subordinated Subsidiary
Guarantees to be endorsed upon all of the Senior Subordinated Notes
issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Senior Subordinated Note Trustee.
All the Subordinated Subsidiary Guarantees so issued shall in all
respects have the same legal rank and benefit under the Senior
Subordinated Note Indenture as the Subordinated Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of the
Senior Subordinated Note Indenture as though all of such Subordinated
Subsidiary Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior
Subordinated Note Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Senior Subordinated Note Indenture or in any of the
Senior Subordinated Notes shall prevent any consolidation or merger of a Senior
Subordinated Note Guarantor with or into the Company or another Senior
Subordinated Note Guarantor, or shall prevent any sale or conveyance of the
property of a Senior Subordinated Note Guarantor as an entirety or substantially
as an entirety to the Company or another Senior Subordinated Note Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Senior Subordinated Note Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all to
the capital stock of any Senior Subordinated Note Guarantor, then
such Senior Subordinated Note Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Senior Subordinated Note Guarantor)
or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such
Senior Subordinated Note Guarantor) will be released and relieved of
any obligations under its Subordinated Subsidiary Guarantee; provided
that the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of the Senior
Subordinated Note Indenture, including without limitation Section
4.10 of the Senior Subordinated Note Indenture. Upon delivery by the
Company to the Senior Subordinated Note Trustee of an Officer's
Certificate and an Opinion of Counsel to the effect that such sale or
other disposition was made by the Company in accordance with the
provisions of the Senior Subordinated Note Indenture, including
without limitation Section 4.10 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee shall execute any
documents reasonably required in order to evidence the release of any
Senior
F-4
Subordinated Note Guarantor from its obligations under its
Subordinated Subsidiary Guarantee.
(b) Any Senior Subordinated Note Guarantor not released from its
obligations under its Subordinated Subsidiary Guarantee shall remain
liable for the full amount of principal of and interest on the Senior
Subordinated Notes and for the other obligations of any Senior
Subordinated Note Guarantor under the Senior Subordinated Note
Indenture as provided in Article 11 of the Senior Subordinated Note
Indenture.
6. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Senior Subordinated
Notes, any Subordinated Subsidiary Guarantees, the Senior Subordinated Note
Indenture or this Supplemental Senior Subordinated Note Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Senior Subordinated Notes by accepting a Senior
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Senior Subordinated Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR SUBORDINATED
NOTE INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
8. Counterparts The parties may sign any number of copies of this
Supplemental Senior Subordinated Note Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. The Senior Subordinated Note Trustee. The Senior Subordinated
Note Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Senior Subordinated Note
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
F-5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Senior Subordinated Note Indenture to be duly executed and attested, all as of
the date first above written.
Dated: ________ __, ____
[Guaranteeing Subsidiary]
By:
--------------------------------
Name:
Title:
P&L Coal Holdings Corporation
By:
--------------------------------
Name:
Title:
[EXISTING SENIOR SUBORDINATED NOTE GUARANTORS]
By:
--------------------------------
Name:
Title:
State Street Bank and Trust Company
as Senior Subordinated Note Trustee
By:
--------------------------------
Name:
Title:
F-6
Schedule I
SCHEDULE OF SENIOR SUBORDINATED NOTE GUARANTORS
The following schedule lists each Senior Subordinated Note Guarantor
under the Senior Subordinated Note Indenture as of the Issue Date:
1. Arid Operations Inc., a Delaware corporation.
2. Darius Gold Mine, Inc., a Delaware corporation.
3. Gold Fields Chile, S.A., a Delaware corporation.
4. Gold Fields Mining Corporation, a Delaware corporation.
5. Gold Fields Operating Co. - ▇▇▇▇▇, a Delaware corporation.
6. Peabody America, Inc., a Delaware corporation.
7. Peabody Holding Company, Inc., a New York corporation.
8. Affinity Mining Company, a West Virginia corporation.
9. Big Sky Coal Company, a Delaware corporation.
10. Blackrock First Capital Corporation, a West Virginia corporation.
11. Bluegrass Coal Company, a Delaware corporation.
12. Caballo Coal Company, a Delaware corporation.
13. ▇▇▇▇▇▇▇ Coal Company, a Delaware corporation.
14. Coal Properties Corp., a Delaware corporation.
15. ▇▇▇▇ Mountain Coal Company, a Delaware corporation.
16. Cottonwood Land Company, a Delaware corporation.
17. EACC Camps, Inc., a West Virginia corporation.
18. Eastern Associated Coal Corp, a West Virginia corporation.
19. Eastern Royalty Corp., a Delaware corporation.
20. Grand Eagle Mining, Inc., a Kentucky corporation.
21. Hayden Gulch Terminal, Inc., a Delaware corporation.
22. Independence Material Handling Company, a Delaware corporation.
23. Interior Holdings Corp., a Delaware corporation.
24. ▇▇▇▇▇ River Coal Terminal Company, a Delaware corporation.
25. Juniper Coal Company, a Delaware corporation.
26. Kayenta Mobile Home Park, Inc., a Delaware corporation.
27. ▇▇▇▇▇▇▇▇ Coal Company, a Delaware corporation.
28. Midco Supply and Equipment Corporation, an Illinois corporation.
29. Midwest Coal Resources, Inc., a Delaware corporation.
30. Mountain View Coal Company, a Delaware corporation.
31. North Page Coal Corp., a West Virginia corporation.
32. Ohio County Coal Company, a Kentucky corporation.
33. Patriot Coal Company, L.P., a Delaware limited partnership.
34. Peabody COALSALES Company, a Delaware corporation.
35. Peabody COALTRADE, Inc., a Delaware corporation.
36. Peabody Coal Company, a Delaware corporation.
37. Peabody Development Company, a Delaware corporation.
38. Peabody Energy Solutions, Inc., a Delaware corporation.
39. Peabody Natural Resources Company, a Delaware general partnership.
40. Peabody Terminals, Inc., a Delaware corporation.
41. Peabody Venezuela Coal Corp., a Delaware corporation.
42. Peabody Western Coal Company, a Delaware corporation.
43. Pine Ridge Coal Company, a Delaware corporation.
44. Powder River Coal Company, a Delaware corporation.
45. Rio Escondido Coal Corp., a Delaware corporation.
46. Seneca Coal Company, a Delaware corporation.
47. Sentry Mining Company, a Delaware corporation.
48. Snowberry Land Company, a Delaware corporation.
49. Sterling Smokeless Coal Company, a West Virginia corporation.
50. Thoroughbred, L.L.C., a Delaware limited liability company.
51. Colony Bay Coal Company, a West Virginia partnership.