EXHIBIT 4.1
Execution Copy
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P&L COAL HOLDINGS CORPORATION
SERIES A AND SERIES B
8-7/8% SENIOR NOTES DUE 2008
SENIOR NOTE INDENTURE
Dated as of May 18, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ AND TRUST COMPANY
Senior Note Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section Senior
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 Note Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
Section 1.01. Definitions................................................ 1
Section 1.02. Other Definitions.......................................... 19
Section 1.03. Incorporation by Reference of Trust Indenture Act.......... 19
Section 1.04. Rules of Construction...................................... 20
ARTICLE 2.
THE SENIOR 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............................................... 22
Section 2.06. Transfer and Exchange...................................... 23
Section 2.07. Replacement Senior Notes................................... 35
Section 2.08. Outstanding Senior Notes................................... 35
Section 2.09. Treasury Senior Notes...................................... 35
Section 2.10. Temporary Senior Notes..................................... 35
Section 2.11. Cancellation............................................... 36
Section 2.12. Defaulted Interest......................................... 36
Section 2.13. CUSIP Numbers.............................................. 36
ARTICLE 3.
REDEMPTION AND PREPAYMENT......................... 36
Section 3.01. Notices to Senior Note Trustee............................. 36
Section 3.02. Selection of Senior Notes to Be Redeemed................... 37
Section 3.03. Notice of Redemption....................................... 37
Section 3.04. Effect of Notice of Redemption............................. 38
Section 3.05. Deposit of Redemption Price................................ 38
Section 3.06. Senior Notes Redeemed in Part.............................. 38
Section 3.07. Optional Redemption........................................ 38
Section 3.08. Mandatory Redemption....................................... 39
Section 3.09. Offer to Purchase by Application of Excess Proceeds........ 39
Section 3.10 Special Mandatory Redemption............................... 41
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ARTICLE 4.
COVENANTS................................. 41
Section 4.01. Payment of Senior Notes.................................... 41
Section 4.02. Maintenance of Office or Agency............................ 41
Section 4.03. Reports.................................................... 42
Section 4.04. Compliance Certificate..................................... 42
Section 4.05. Taxes...................................................... 43
Section 4.06. Stay, Extension and Usury Laws............................. 43
Section 4.07. Restricted Payments........................................ 43
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries............................................. 47
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock. 48
Section 4.10. Asset Sales................................................ 51
Section 4.11. Transactions with Affiliates............................... 52
Section 4.12. Liens...................................................... 53
Section 4.13. Business activities........................................ 53
Section 4.14. Corporate Existence........................................ 53
Section 4.15. Offer to Repurchase Upon Change of Control................. 53
Section 4.16. Additional Senior Subsidiary Guarantees.................... 54
Section 4.17. Payments for consents...................................... 54
ARTICLE 5.
SUCCESSORS................................. 55
Section 5.01. Merger, Consolidation, or Sale of Assets................... 55
Section 5.02. Successor Corporation Substituted.......................... 55
ARTICLE 6.
DEFAULTS AND REMEDIES............................ 56
Section 6.01. Events of Default.......................................... 56
Section 6.02. Acceleration............................................... 57
Section 6.03. Other Remedies............................................. 58
Section 6.04. Waiver of Past Defaults.................................... 58
Section 6.05. Control by Majority........................................ 59
Section 6.06. Limitation on Suits........................................ 59
Section 6.07. Rights of Holders of Senior Notes to Receive Payment....... 59
Section 6.08. Collection Suit by Senior Note Trustee..................... 59
Section 6.09. Senior Note Trustee May File Proofs of Claim............... 60
Section 6.10. Priorities................................................. 60
Section 6.11. Undertaking for Costs...................................... 61
ARTICLE 7.
SENIOR NOTE TRUSTEE............................. 61
Section 7.01. Duties of Senior Note Trustee.............................. 61
Section 7.02. Rights of Senior Note Trustee.............................. 62
ii
Section 7.03. Individual Rights of Senior Note Trustee................... 62
Section 7.04. Senior Note Trustee's Disclaimer........................... 63
Section 7.05. Notice of Defaults......................................... 63
Section 7.06. Reports by Senior Note Trustee to Holders of the Senior
Notes.................................................... 63
Section 7.07. Compensation and Indemnity................................. 63
Section 7.08. Replacement of Senior Note Trustee......................... 64
Section 7.09. Successor Senior Note Trustee by Merger, etc............... 65
Section 7.10. Eligibility; Disqualification.............................. 65
Section 7.11. Preferential Collection of Claims Against Company.......... 65
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE.................. 66
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance... 66
Section 8.02. Legal Defeasance and Discharge............................. 66
Section 8.03. Covenant Defeasance........................................ 66
Section 8.04. Conditions to Legal or Covenant Defeasance................. 67
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.................... 68
Section 8.06. Repayment to Company....................................... 68
Section 8.07. Reinstatement.............................................. 69
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER...................... 69
Section 9.01. Without Consent of Holders of Senior Notes................. 69
Section 9.02. With Consent of Holders of Senior Notes.................... 70
Section 9.03. Compliance with Trust Indenture Act........................ 71
Section 9.04. Revocation and Effect of Consents.......................... 71
Section 9.05. Notation on or Exchange of Senior Notes.................... 71
Section 9.06. Senior Note Trustee to Sign Amendments, etc................ 72
ARTICLE 10.
SENIOR SUBSIDIARY GUARANTEES........................ 72
Section 10.01. Guarantee.................................................. 72
Section 10.02. Limitation on Senior Note Guarantor Liability.............. 73
Section 10.03. Execution and Delivery of Senior Subsidiary Guarantee...... 73
Section 10.04. Senior Note Guarantors May Consolidate, etc., on Certain
Terms.................................................... 74
Section 10.05. Releases Following Sale of Assets.......................... 75
ARTICLE 11.
MISCELLANEOUS............................... 75
Section 11.01. Trust Indenture Act Controls............................... 75
Section 11.02. Notices.................................................... 75
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Section 11.03. Communication by Holders of Senior Notes with Other Holders
of Senior Notes.......................................... 76
Section 11.04. Certificate and Opinion as to Conditions Precedent......... 76
Section 11.05. Statements Required in Certificate or Opinion.............. 77
Section 11.06. Rules by Senior Note Trustee and Agents.................... 77
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders............................................. 77
Section 11.08. Governing Law.............................................. 77
Section 11.09. No Adverse Interpretation of Other Agreements.............. 78
Section 11.10. Successors................................................. 78
Section 11.11. Severability............................................... 78
Section 11.12. Counterpart Originals...................................... 78
Section 11.13. Table of Contents, Headings, etc........................... 78
EXHIBITS
Exhibit A1 FORM OF SENIOR NOTE
Exhibit A2 FORM OF TEMPORARY REGULATION S SENIOR 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 SENIOR SUBSIDIARY GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL SENIOR NOTE INDENTURE
SCHEDULES
Schedule I Schedule of Senior Note Guarantors
iv
SENIOR 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 Note Trustee (the "Senior Note Trustee").
The Company and the Senior Note Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 8-7/8% Series A Senior Notes due 2008 (the "Series A Senior Notes") and the
8-7/8% Series B Senior Notes due 2008 (the "Series B Senior Notes" and, together
with the Series A Senior Notes, the "Senior Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.DEFINITIONS.
"144A Global Senior Note" means a global note in the form of
Exhibit A1 hereto bearing the Global Senior 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 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 Notes" means up to $150.0 million in aggregate
principal amount of Senior Notes (other than the Initial Senior Notes) issued
under this Senior 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 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.
2
"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.
"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)
3
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.
"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 Note Guarantor shall be added
to Consolidated Net Income to compute Consolidated Cash Flow only to the extent
that a
4
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 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 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 Note Trustee" shall be at the
address of the Senior Note Trustee specified in Section 11.02 hereof or such
other address as to which the Senior 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 Notes are first issued and authenticated under this Senior
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 Note Trustee, as custodian with
respect to the Senior Notes in global form, or any successor entity thereto.
5
"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 Note" means a certificated Senior 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
Note shall not bear the Global Senior Note Legend and shall not have the
"Schedule of Exchanges of Interests in the Global Senior Note" attached thereto.
"Depositary" means, with respect to the Senior 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 Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Senior 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
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 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.
6
"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 Notes" means the Senior 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.
"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 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
7
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.
"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 Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Senior Notes issued
under this Senior Note Indenture.
"Global Senior Notes" means, individually and collectively, each of
the Restricted Global Senior Notes and the Unrestricted Global Senior 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.
8
"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 Note is registered.
"IAI Global Senior Note" means the global Senior Note in the form
of Exhibit A1 hereto bearing the Global Senior 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 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 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 Note through a Participant.
"Initial Senior Notes" means $400.0 million in aggregate principal
amount of Senior Notes issued under this Senior 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.
9
"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 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).
"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
10
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 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.
"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 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 11.04 and 11.05 hereof.
11
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Senior Note Trustee, that meets the requirements of
Sections 11.04 and 11.05 hereof. The counsel may be an employee of or counsel
to the Company, any Subsidiary of the Company or the Senior 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 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
12
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 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 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 Note Guarantors to secure
Senior Debt of such Senior Note Guarantors that was permitted by this Senior
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 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
13
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 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 refunded is
subordinated in right of payment to the Senior 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 Notes on terms at least
as favorable to the Holders of Senior 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 Notes issued under this Senior Note
Indenture except where otherwise permitted by the provisions of this Senior Note
Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
14
"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 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 Notes to register such Additional Senior Notes
under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Senior Note" means a Regulation S Temporary
Global Senior Note or Regulation S Permanent Global Senior Note, as appropriate.
"Regulation S Permanent Global Senior Note" means a permanent
global Senior Note in the form of Exhibit A1 hereto bearing the Global Senior
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 Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Senior Note" means a temporary
global Senior 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 Notes initially sold in reliance on
Rule 903 of Regulation S.
"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 Note
Trustee, means any officer within the Corporate Trust Administration of the
Senior Note Trustee (or any successor group of the Senior Note Trustee) or any
other officer of the Senior 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 Note" means a Definitive Senior Note
bearing the Private Placement Legend.
"Restricted Global Senior Note" means a Global Senior 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.
15
"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).
"Senior 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 Note
Indenture and (ii) any other subsidiary that executes a Senior Subsidiary
Guarantee in accordance with the provisions of this Senior Note Indenture, and
their respective successors and assigns.
"Senior Note Indenture" means this Senior Note Indenture, as
amended or supplemented from time to time.
"Senior Notes" has the meaning assigned to it in the preamble to
this Senior Note Indenture.
"Senior Note Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Senior Note Indenture and thereafter means the successor serving hereunder.
"Senior Subordinated Note Indenture" means that certain Senior
Subordinated Note Indenture, dated as of the date hereof, between the Company
and State Street Bank and Trust Company, as Senior Subordinated Note Trustee, as
amended or supplemented from time to time, relating to the Senior Subordinated
Notes.
"Senior Subordinated Notes" means the Company's 9-5/8% Senior
Subordinated Notes due 2008 issued concurrently pursuant to the 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.
16
"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 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 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 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 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 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 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 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 Note" means a permanent global Senior Note
in the form of Exhibit A1 attached hereto that bears the Global Senior Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Senior
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 Notes
that do not bear the Private Placement Legend.
17
"Unrestricted Definitive Senior Note" means one or more Definitive
Senior 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 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 Note Trustee by filing with the
Senior 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.
18
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
"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 Note Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Senior
Note Indenture.
The following TIA terms used in this Senior Note Indenture have the
following meanings:
"Indenture securities" means the Senior Notes;
"Indenture security Holder" means a Holder of a Senior Note;
"Indenture to be qualified" means this Senior Note Indenture;
"Indenture Trustee" or "institutional Trustee" means the Senior Note
Trustee; and
"obligor" on the Senior Notes and the Senior Subsidiary Guarantees
means the Company and the Senior Note Guarantors, respectively, and any
successor obligor upon the Senior Notes and the Senior Subsidiary Guarantees,
respectively.
All other terms used in this Senior 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.
19
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;
(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 NOTES
Section 2.01. Form and Dating.
(a) General.
The Senior Notes and the Senior Note Trustee's certificate of
authentication shall be substantially in the form of Exhibits A1 and A2 hereto.
The Senior Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Senior Note shall be dated the date of its
authentication. The Senior Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Senior Note Indenture
and the Company, the Senior Note Guarantors and the Senior Note Trustee, by
their execution and delivery of this Senior Note Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Senior Note conflicts with the express provisions of this
Senior Note Indenture, the provisions of this Senior Note Indenture shall govern
and be controlling.
(b) Global Senior Notes.
Senior Notes issued in global form shall be substantially in the form
of Exhibits A1 or A2 attached hereto (including the Global Senior Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Senior Note"
attached thereto). Senior Notes issued in definitive form shall be
substantially in the form of Exhibit A1 attached hereto (but without the Global
Senior Note Legend thereon and without the "Schedule of Exchanges of Interests
in the Global Senior Note" attached thereto). Each Global Senior Note shall
represent such of the outstanding Senior Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Senior Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Senior 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 Note to reflect the amount
of any increase or
20
decrease in the aggregate principal amount of outstanding Senior Notes
represented thereby shall be made by the Senior Note Trustee or the Custodian,
at the direction of the Senior Note Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Senior Notes.
Senior Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Senior Note,
which shall be deposited on behalf of the purchasers of the Senior Notes
represented thereby with the Senior 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 Note Trustee as hereinafter provided. The Restricted
Period shall be terminated upon the receipt by the Senior 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 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 Note or an IAI Global Senior 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 Note shall be exchanged for beneficial interests in Regulation S
Permanent Global Senior Notes pursuant to the Applicable Procedures.
Simultaneously with the authentication of Regulation S Permanent Global Senior
Notes, the Senior Note Trustee shall cancel the Regulation S Temporary Global
Senior Note. The aggregate principal amount of the Regulation S Temporary Global
Senior Note and the Regulation S Permanent Global Senior Notes may from time to
time be increased or decreased by adjustments made on the records of the Senior
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 Note and the Regulation S Permanent Global Senior Notes that are
held by Participants through Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Senior Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time a Senior Note is authenticated, the Senior Note shall
nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Senior Note Trustee. The signature shall be conclusive
evidence that the Senior Note has been authenticated under this Senior Note
Indenture.
The Senior Note Trustee shall, upon a written order of the Company
signed by one Officer (an "Authentication Order"), authenticate Senior Notes for
original issue up to the aggregate
21
principal amount stated in paragraph 4 of the Senior Notes. The aggregate
principal amount of Senior Notes outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Senior Note Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Senior Notes. An authenticating agent may
authenticate Senior Notes whenever the Senior Note Trustee may do so. Each
reference in this Senior Note Indenture to authentication by the Senior 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 Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Senior Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Senior 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 Note Trustee in writing of the name and address
of any Agent not a party to this Senior Note Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Senior 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 Notes.
The Company initially appoints the Senior Note Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Senior Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Senior Note
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Senior 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 Notes, and will notify the Senior Note Trustee of any default by
the Company in making any such payment. While any such default continues, the
Senior Note Trustee may require a Paying Agent to pay all money held by it to
the Senior Note Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Senior Note Trustee. Upon payment over to the
Senior 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
Note Trustee shall serve as Paying Agent for the Senior Notes.
Section 2.05. Holder Lists.
The Senior 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 Note Trustee is not the Registrar, the Company shall furnish to the
Senior Note Trustee at least seven Business Days before each interest payment
date and at such other times as the Senior Note Trustee may request in writing,
a list in such form and as of such date as the
22
Senior Note Trustee may reasonably require of the names and addresses of the
Holders of Senior 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 Notes.
A Global Senior 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 Notes will be exchanged by the Company for
Definitive Senior Notes if (i) the Company delivers to the Senior 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 Notes
(in whole but not in part) should be exchanged for Definitive Senior Notes and
delivers a written notice to such effect to the Senior Note Trustee; provided
that in no event shall the Regulation S Temporary Global Senior Note be
exchanged by the Company for Definitive Senior 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 Notes shall be issued in such names as the Depositary shall
instruct the Senior Note Trustee. Global Senior Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Senior Note authenticated and delivered in exchange for, or in lieu of, a
Global Senior 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 Note. A Global Senior Note may not be
exchanged for another Senior Note other than as provided in this Section
2.06(a), however, beneficial interests in a Global Senior 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
Notes.
The transfer and exchange of beneficial interests in the Global Senior
Notes shall be effected through the Depositary, in accordance with the
provisions of this Senior Note Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Senior 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 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
Note. Beneficial interests in any Restricted Global Senior Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Senior 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 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 Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Senior 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).
23
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Senior 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 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 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 Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no event
shall Definitive Senior Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Senior 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 Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Senior Notes
contained in this Senior Note Indenture and the Senior Notes or otherwise
applicable under the Securities Act, the Senior Note Trustee shall adjust
the principal amount of the relevant Global Senior Note(s) pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Senior Note. A beneficial interest in any Restricted Global Senior
Note may be transferred to a Person who takes delivery thereof in the form
of a beneficial interest in another Restricted Global Senior Note if the
transfer complies with the requirements of Section 2.06(b)(ii) above and
the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Senior 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 Note
or the Regulation S Global Senior 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 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 Note for Beneficial Interests in the Unrestricted
Global Senior Note. A beneficial interest in any Restricted Global Senior
Note may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Senior Note or transferred to a Person who takes
delivery
24
thereof in the form of a beneficial interest in an Unrestricted Global
Senior 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
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 Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted
Global Senior 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 Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global
Senior 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 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 Note Trustee shall authenticate
one or more Unrestricted Global Senior 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 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 Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Senior
Notes.
25
(i) Beneficial Interests in Restricted Global Senior Notes to
Restricted Definitive Senior Notes. If any holder of a beneficial interest
in a Restricted Global Senior Note proposes to exchange such beneficial
interest for a Restricted Definitive Senior Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Senior Note, then, upon receipt by the Registrar of
the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to exchange such beneficial
interest for a Restricted Definitive Senior 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;
(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 Note Trustee shall cause the aggregate principal amount of the
applicable Global Senior Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Senior Note Trustee
shall authenticate and deliver to the Person designated in the instructions
a Definitive Senior Note in the appropriate principal amount. Any
Definitive Senior Note issued in exchange for a beneficial interest in a
Restricted Global Senior 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 Note Trustee shall deliver such
Definitive Senior Notes to the Persons in whose names such Senior Notes are
so registered. Any Definitive Senior Note issued in exchange for a
beneficial interest in a Restricted Global Senior 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.
26
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Senior Note may not be
exchanged for a Definitive Senior Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Senior 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 Notes to
Unrestricted Definitive Senior Notes. A holder of a beneficial interest in
a Restricted Global Senior Note may exchange such beneficial interest for
an Unrestricted Definitive Senior Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Senior 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 Person participating in the distribution of the Exchange
Senior 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 Note proposes to exchange such
beneficial interest for a Definitive Senior 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 Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof
in the form of a Definitive Senior 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 Notes
to Unrestricted Definitive Senior Notes. If any holder of a beneficial
interest in an Unrestricted Global Senior
27
Note proposes to exchange such beneficial interest for a Definitive Senior
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Senior Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii) hereof, the Senior Note
Trustee shall cause the aggregate principal amount of the applicable Global
Senior Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Senior Note Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Senior Note in the appropriate principal amount. Any Definitive
Senior 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 Note
Trustee shall deliver such Definitive Senior Notes to the Persons in whose
names such Senior Notes are so registered. Any Definitive Senior 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 Notes for Beneficial
Interests.
(i) Restricted Definitive Senior Notes to Beneficial Interests in
Restricted Global Senior Notes. If any Holder of a Restricted Definitive
Senior Note proposes to exchange such Senior Note for a beneficial interest
in a Restricted Global Senior Note or to transfer such Restricted
Definitive Senior Notes to a Person who takes delivery thereof in the form
of a beneficial interest in a Restricted Global Senior Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Senior Note
proposes to exchange such Senior Note for a beneficial interest in a
Restricted Global Senior 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 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 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 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 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;
28
(F) if such Restricted Definitive Senior 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 Note 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 Note Trustee shall cancel the Restricted Definitive Senior Note,
increase or cause to be increased the aggregate principal amount of, in the
case of clause (A) above, the appropriate Restricted Global Senior Note, in
the case of clause (B) above, the 144A Global Senior Note, in the case of
clause (c) above, the Regulation S Global Senior Note, and in all other
cases, the IAI Global Senior Note.
(ii) Restricted Definitive Senior Notes to Beneficial Interests
in Unrestricted Global Senior Notes. A Holder of a Restricted Definitive
Senior Note may exchange such Senior Note for a beneficial interest in an
Unrestricted Global Senior Note or transfer such Restricted Definitive
Senior Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior 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 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 Notes
proposes to exchange such Senior Notes for a beneficial interest
in the Unrestricted Global Senior 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 Notes
proposes to transfer such Senior Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Senior 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
29
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 Note Trustee shall cancel the Definitive
Senior Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Senior Note.
(iii) Unrestricted Definitive Senior Notes to Beneficial
Interests in Unrestricted Global Senior Notes. A Holder of an Unrestricted
Definitive Senior Note may exchange such Senior Note for a beneficial
interest in an Unrestricted Global Senior Note or transfer such Definitive
Senior Notes to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Note at any time.
Upon receipt of a request for such an exchange or transfer, the Senior Note
Trustee shall cancel the applicable Unrestricted Definitive Senior Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Senior Notes.
If any such exchange or transfer from a Definitive Senior 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 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
Note Trustee shall authenticate one or more Unrestricted Global Senior
Notes in an aggregate principal amount equal to the principal amount of
Definitive Senior Notes so transferred.
(e) Transfer and Exchange of Definitive Senior Notes for Definitive
Senior Notes.
Upon request by a Holder of Definitive Senior 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 Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Senior 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 Notes to Restricted Definitive
Senior Notes. Any Restricted Definitive Senior Note may be transferred to
and registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Senior 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;
(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
30
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 Notes to Unrestricted
Definitive Senior Notes. Any Restricted Definitive Senior Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Senior Note
or transferred to a Person or Persons who take delivery thereof in the form
of an Unrestricted Definitive Senior 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 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
Notes proposes to exchange such Senior Notes for an Unrestricted
Definitive Senior 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
Notes proposes to transfer such Senior Notes to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Senior 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.
(iii) Unrestricted Definitive Senior Notes to Unrestricted
Definitive Senior Notes. A Holder of Unrestricted Definitive Senior Notes
may transfer such Senior Notes to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Senior Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Senior Notes pursuant to the instructions from the
Holder thereof.
31
(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 Note Trustee
shall authenticate (i) one or more Unrestricted Global Senior Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Senior 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 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 Notes in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Senior Notes accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Senior Notes, the Senior
Note Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Senior Notes to be reduced accordingly, and the Company shall
execute and the Senior Note Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Senior Notes so accepted
Definitive Senior Notes in the appropriate principal amount.
(g) Legends
The following legends shall appear on the face of all Global Senior
Notes and Definitive Senior Notes issued under this Senior Note Indenture unless
specifically stated otherwise in the applicable provisions of this Senior Note
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Senior Note and each Definitive Senior Note (and all Senior
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 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 ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 Note or
Definitive Senior 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 Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Senior Note Legend. Each Global Senior Note shall
bear a legend in substantially the following form:
"THIS GLOBAL SENIOR NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE SENIOR NOTE INDENTURE GOVERNING THIS SENIOR 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 NOTE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE SENIOR NOTE
INDENTURE, (II) THIS GLOBAL SENIOR NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE SENIOR NOTE INDENTURE,
(III) THIS GLOBAL SENIOR NOTE MAY BE DELIVERED TO THE SENIOR NOTE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE SENIOR NOTE
INDENTURE AND (IV) THIS GLOBAL SENIOR NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Senior Note Legend. The
Regulation S Temporary Global Senior Note shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SENIOR NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED SENIOR NOTES, ARE AS SPECIFIED IN THE SENIOR NOTE
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SENIOR NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Senior Notes.
At such time as all beneficial interests in a particular Global Senior
Note have been exchanged for Definitive Senior Notes or a particular Global
Senior Note has been redeemed, repurchased or canceled in whole and not in part,
each such Global Senior Note shall be returned to or retained and canceled by
the Senior Note Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Senior 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 Note or for
Definitive Senior Notes, the principal amount of Senior Notes represented by
such Global Senior Note shall be reduced accordingly and an endorsement shall be
made on such Global Senior Note by the Senior Note Trustee or by the Depositary
at the direction of the Senior Note Trustee to reflect such reduction;
33
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 Note, such other Global Senior Note shall be increased accordingly
and an endorsement shall be made on such Global Senior Note by the Senior Note
Trustee or by the Depositary at the direction of the Senior 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 Note Trustee shall authenticate Global
Senior Notes and Definitive Senior 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 Note or to a Holder of a Definitive
Senior 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).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Senior Note selected for redemption in whole or
in part, except the unredeemed portion of any Senior Note being redeemed in
part.
(iv) All Global Senior Notes and Definitive Senior Notes issued
upon any registration of transfer or exchange of Global Senior Notes or
Definitive Senior Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Senior Note Indenture, as the Global Senior Notes or Definitive Senior
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 Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Senior 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 Note so selected for redemption
in whole or in part, except the unredeemed portion of any Senior Note being
redeemed in part or (c) to register the transfer of or to exchange a Senior
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 Note, the Senior Note Trustee, any Agent and the
Company may deem and treat the Person in whose name any Senior Note is
registered as the absolute owner of such Senior Note for the purpose of
receiving payment of principal of and interest on such Senior Notes and for
all other purposes, and none of the Senior Note Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Senior Note Trustee shall authenticate Global Senior
Notes and Definitive Senior 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.
34
SECTION 2.07. REPLACEMENT SENIOR NOTES
If any mutilated Senior Note is surrendered to the Senior Note
Trustee or the Company and the Senior Note Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Senior Note, the Company
shall issue and the Senior Note Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Senior Note if the Senior Note Trustee's
requirements are met. If required by the Senior Note Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Senior Note Trustee and the Company to protect the Company, the Senior
Note Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Senior Note is replaced. The Company may charge for its
expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Senior Note
Indenture equally and proportionately with all other Senior Notes duly issued
hereunder.
SECTION 2.08. OUTSTANDING SENIOR NOTES.
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Senior Note Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Senior Note effected by the Senior 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 Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Senior
Note.
If a Senior Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Senior Note Trustee receives proof
satisfactory to it that the replaced Senior Note is held by a bona fide
purchaser.
If the principal amount of any Senior 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 Notes payable on that date, then on and after that date
such Senior Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.09. TREASURY SENIOR NOTES.
In determining whether the Holders of the required principal
amount of Senior Notes have concurred in any direction, waiver or consent,
Senior 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 Note Trustee shall be protected in
relying on any such direction, waiver or consent, only Senior Notes that the
Senior Note Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SENIOR NOTES
Until certificates representing Senior Notes are ready for
delivery, the Company may prepare and the Senior Note Trustee, upon receipt of
an Authentication Order, shall authenticate temporary Senior Notes. Temporary
Senior Notes shall be substantially in the form of certificated Senior Notes but
35
may have variations that the Company considers appropriate for temporary Senior
Notes and as shall be reasonably acceptable to the Senior Note Trustee. Without
unreasonable delay, the Company shall prepare and the Senior Note Trustee shall
authenticate definitive Senior Notes in exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Senior Note Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Senior Notes to the Senior
Note Trustee for cancellation. The Registrar and Paying Agent shall forward to
the Senior Note Trustee any Senior Notes surrendered to them for registration of
transfer, exchange or payment. The Senior Note Trustee and no one else shall
cancel all Senior Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy canceled Senior Notes
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all canceled Senior Notes shall be delivered to the
Company. The Company may not issue new Senior Notes to replace Senior Notes that
it has paid or that have been delivered to the Senior Note Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior
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 Notes and in Section 4.01 hereof. The Company shall
notify the Senior Note Trustee in writing of the amount of defaulted interest
proposed to be paid on each Senior 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 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 Notes may use "CUSIP" numbers
(if then generally in use), and, if so, the Senior 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 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 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 Note Trustee of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO SENIOR NOTE TRUSTEE.
If the Company elects or is required to redeem Senior Notes
pursuant to the redemption provisions of Sections 3.07 or 3.10 hereof,
respectively, it shall furnish to the Senior Note Trustee, at least 30 days but
not more than 60 days before a redemption date, an Officer's Certificate setting
forth (i) the
36
clause of this Senior Note Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Senior Notes to
be redeemed, (iv) the redemption price and (v) the CUSIP numbers of the Senior
Notes to be redeemed.
SECTION 3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED.
If less than all of the Senior Notes are to be redeemed or
purchased in an offer to purchase at any time, the Senior Note Trustee shall
select the Senior Notes to be redeemed or purchased among the Holders of the
Senior Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Senior Notes are listed or, if the
Senior Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Senior Note Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Senior 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 Note Trustee
from the outstanding Senior Notes not previously called for redemption.
The Senior Note Trustee shall promptly notify the Company in
writing of the Senior Notes selected for redemption and, in the case of any
Senior Note selected for partial redemption, the principal amount thereof to be
redeemed. Senior Notes and portions of Senior Notes selected shall be in amounts
of $1,000 or whole multiples of $1,000; except that if all of the Senior Notes
of a Holder are to be redeemed, the entire outstanding amount of Senior 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 Note Indenture
that apply to Senior Notes called for redemption also apply to portions of
Senior 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 Notes are to be redeemed at its registered address.
The notice shall identify the Senior Notes to be redeemed,
including the CUSIP numbers, and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion
of the principal amount of such Senior Note to be redeemed and that, after
the redemption date upon surrender of such Senior Note, a new Senior Note
or Senior Notes in principal amount equal to the unredeemed portion shall
be issued upon cancellation of the original Senior Note;
(d) the name and address of the Paying Agent;
(e) that Senior 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 Notes called for redemption ceases
to accrue on and after the redemption date;
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(g) the paragraph of the Senior Notes and/or Section of this
Senior Note Indenture pursuant to which the Senior 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 Notes.
At the Company's request, the Senior 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 Note Trustee, at
least 45 days prior to the redemption date, an Officer's Certificate requesting
that the Senior 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 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 Note Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Senior Notes to be
redeemed on that date. The Senior Note Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Senior 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 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 Notes or the portions of Senior Notes called for redemption. If a
Senior 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 Note was registered at the close of
business on such record date. If any Senior 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 Notes and in Section 4.01 hereof.
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the Senior Note
Trustee shall authenticate for the Holder at the expense of the Company a new
Senior Note equal in principal amount to the unredeemed portion of the Senior
Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Senior 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 Notes will be redeemable
at a redemption price equal to 100% of the principal amount thereof plus the
applicable Senior Notes Make Whole Premium,
38
plus, to the extent not included in the Senior Notes Make Whole Premium, accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption.
For purposes of the foregoing, "Senior Notes Make Whole Premium" means, with
respect to a Senior Note, an amount equal to the greater of (a) 104.438% of the
outstanding principal amount of such Senior Note and (b) the excess of (1) the
present value of the remaining interest, premium, if any, and principal payments
due on such Senior Note as if such Senior 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 Note.
(c) On or after May 15, 2003, the Senior 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................................. 104.438%
2004................................. 102.958%
2005................................. 101.479%
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 Notes issued under this Senior
Note Indenture at a redemption price of 108.875% 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 Notes issued remain outstanding immediately after the occurrence of such
redemption (excluding Senior 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 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 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
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 Notes
tendered in response to the Asset Sale Offer. Payment for any Senior Notes so
purchased shall be made in the same manner as interest payments are made.
39
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 Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Senior 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 Note Trustee and each of the
Holders. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Senior 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 Note not tendered or accepted for payment
shall continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such payment,
any Senior 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 Note purchased
pursuant to an Asset Sale Offer may only elect to have all of such Senior
Note purchased and may not elect to have only a portion of such Senior Note
purchased;
(f) that Holders electing to have a Senior Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the Senior
Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Senior 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 Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to
have such Senior Note purchased;
(h) that, if the aggregate principal amount of Senior Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select
the Senior Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Senior Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Senior Notes were purchased only in
part shall be issued new Senior Notes equal in principal amount to the
unpurchased portion of the Senior 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 Notes or portions thereof
40
tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has
been tendered, all Senior Notes tendered, and shall deliver to the Senior Note
Trustee an Officer's Certificate stating that such Senior 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 Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Senior Note,
and the Senior Note Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Senior Note to such Holder, in a
principal amount equal to any unpurchased portion of the Senior Note
surrendered. Any Senior 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.
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 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 NOTES.
The Company or a Senior 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 Notes on the dates and in the manner provided in the Senior
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 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 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 Note
Trustee or an affiliate of the Senior Note Trustee, Registrar or co-registrar)
where Senior 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 Notes and
41
this Senior Note Indenture may be served. The Company shall give prompt written
notice to the Senior 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
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
Note Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Senior 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 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 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 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 Notes are outstanding, the Company shall furnish to
the Holders of Senior 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 Notes remain outstanding, the
Company and the Senior 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 Note Guarantor (to the extent
that such Senior Note Guarantor is so required under the TIA) shall deliver to
the Senior 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 Note Indenture, and further stating, as to each such Officer
42
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 Note Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Senior 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 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 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 Notes are
outstanding, deliver to the Senior 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 Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each of the Senior 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 Note Indenture; and the Company and each of the Senior 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 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' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests
43
(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 Notes or any Senior 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), (ix), (x) and (xii) 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 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
44
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 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; 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
45
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 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) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions of Section 3.07 of the Senior Subordinated Note Indenture;
provided that the amount of any Equity Offering used to effect such a
repurchase, redemption or other acquisition or retirement for value shall
be excluded from the calculation made pursuant to clause (c) above;
(x) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions of Section 3.09, 4.10 and 4.15 of the Senior Subordinated Note
Indenture; provided that, as of the date of such repurchase, redemption or
other acquisition or retirement for value, no Default or Event of Default
shall have occurred and be continuing or, with the passage of time, would
occur as a consequence thereof;
(xi) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions of Section 3.10 of the Senior Subordinated Note Indenture ;
provided that the amount of any such repurchase, redemption, acquisition or
retirement shall be excluded from the calculation made pursuant to clause
(c) above; and
(xii) other Restricted Payments not otherwise prohibited by this
Section 4.07 in an aggregate amount not to exceed $25.0 million under this
clause (xii).
As of the date of the closing of the Acquisition, all of the Company's
Subsidiaries other than Citizens 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 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
46
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.
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 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
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 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 Note Indenture and/or the
closing of the Acquisition, (b) the Senior Credit Facilities as in effect as of
the date of the Senior 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 Note
Indenture and/or the closing of the Acquisition, (c) the Senior Note Indenture,
this Senior Note Indenture, the Senior Notes and the Senior 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 Note Indenture to be incurred, (f) customary non-assignment
provisions in leases and other agreements
47
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
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 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 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;
48
(iii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company, the Senior Note Guarantors
and the Senior Note Guarantors of Indebtedness represented by the Senior
Notes, the Senior Notes, the Senior Subsidiary Guarantees and the Senior
Subsidiary Guarantees limited in aggregate principal amount, without
duplication, to amounts outstanding under the Senior Note Indenture and
this Senior Note Indenture as of their respective dates;
(v) (A) the guarantee by the Company or any of the Senior 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
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 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 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;
49
(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 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.
The Company shall not incur, and shall not permit its Restricted
Subsidiaries to incur, any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the
Company or such Restricted Subsidiary unless such Indebtedness is also
contractually subordinated in right of payment to the Senior Notes, or the
Senior Subsidiary Guarantees, as the case may be, on substantially identical
terms; provided, however, that no Indebtedness of the Company or any Restricted
Subsidiary shall be deemed to be contractually subordinated in right of payment
to any other Indebtedness of the Company or any Restricted Subsidiary solely by
virtue of being unsecured.
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.
50
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 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 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 Indebtedness of the
Company or any Restricted Subsidiary that is not subordinated in right of
payment to Indebtedness under a Credit Facility, (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 Notes and all holders of other Indebtedness that ranks pari
passu with the Senior Notes 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 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 Note
Indenture. If the aggregate principal amount of Senior Notes and such other
Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Senior Note Trustee shall select the
Senior 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.
51
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
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 with the terms of this Senior 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
52
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 (other than
Permitted Liens) upon any of their property or assets, now owned or hereafter
acquired, unless all payments due under this Senior Note Indenture and the
Senior 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 Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior 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
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 Notes on the date specified in such notice, which
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 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 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
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respect of all Senior Notes or portions thereof so tendered and (3) deliver or
cause to be delivered to the Senior Note Trustee the Senior Notes so accepted
together with an Officer's Certificate stating the aggregate principal amount of
Senior Notes or portions thereof being purchased by the Company. The Paying
Agent will promptly mail to each Holder of Senior Notes so tendered the Change
of Control Payment for such Senior Notes, and, upon receipt of an Authentication
Order, the Senior Note Trustee will promptly authenticate and mail (or cause to
be transferred by book entry) to each Holder a new Senior Note equal in
principal amount to any unpurchased portion of the Senior Notes surrendered, if
any; provided that each such new Senior 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 Notes required by this Section 4.15. 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 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 Notes validly tendered and not withdrawn under such Change of Control
Offer or if the Company exercises its option to purchase the Senior Notes.
Section 4.16. Additional Senior 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 Note Guarantor under this Senior
Note Indenture, provided, however, this Section 4.16 shall not apply to any
Domestic Subsidiary that has been properly designated as an Unrestricted
Subsidiary in accordance with this Senior Note Indenture for so long as it
continues to constitute an Unrestricted Subsidiary.
Section 4.17. 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 Notes for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Senior Note Indenture or the Senior Notes unless such
consideration is offered to be paid or is paid to all Holders of the Senior
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.
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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 Notes and this Senior Note Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Senior 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 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 Notes and this Senior Note Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Senior 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 Note Indenture referring to the
"Company" shall refer instead to the successor corporation and not to the
Company), and may exercise
55
every right and power of the Company under this Senior 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 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 Notes and such
default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal
of or premium, if any, on the Senior Notes when the same becomes due and payable
at maturity, upon redemption (including in connection with an offer to purchase)
or otherwise;
(c) the Company or any of its Subsidiaries fails to make the
offer required or to purchase any of the Senior 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 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 Note Indenture or the
Senior Notes for 60 days after notice to the Company by the Senior Note Trustee
or the Holders of at least 25% in aggregate principal amount of the Senior 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 the Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of this Senior 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,
56
(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;
(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 Note Indenture, any
Senior 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 Note Guarantor, or any Person acting on behalf of any
Senior Note Guarantor, shall deny or disaffirm its obligations under such Senior
Note Guarantor's Senior 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 Note Trustee or the Holders of
at least 25% in principal amount of the then outstanding Senior Notes may
declare all the Senior Notes to be due and payable immediately; provided, that
so long as any Indebtedness permitted to be incurred pursuant to the Senior
Credit Facilities shall be outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration under any such Indebtedness under the
Senior Credit Facilities or (ii) five Business Days after receipt by the Company
of written notice of such acceleration of the Senior Notes. Upon any such
declaration, the Senior Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of
57
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 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 Notes by written
notice to the Senior 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 Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Senior Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Senior Note Indenture or in the Senior
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 Notes prior to such date, then, upon acceleration
of the Senior 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 ............................................... 111.833%
1999 ............................................... 110.354%
2000 ............................................... 108.875%
2001 ............................................... 107.396%
2002 ............................................... 105.917%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Senior 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
Notes or to enforce the performance of any provision of the Senior Notes or this
Senior Note Indenture.
The Senior Note Trustee may maintain a proceeding even if it does
not possess any of the Senior Notes or does not produce any of them in the
proceeding. A delay or omission by the Senior Note Trustee or any Holder of a
Senior 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 Notes by notice to the Senior Note Trustee may on
behalf of the Holders of all of the Senior 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 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 Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such
58
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 Note Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Senior Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Senior Note Trustee or exercising any
trust or power conferred on it. However, the Senior Note Trustee may refuse to
follow any direction that conflicts with law or this Senior Note Indenture that
the Senior Note Trustee determines may be unduly prejudicial to the rights of
other Holders of Senior Notes or that may involve the Senior Note Trustee in
personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Senior Note may pursue a remedy with respect to
this Senior Note Indenture or the Senior Notes only if:
(a) the Holder of a Senior Note gives to the Senior 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 Notes make a written request to the Senior Note
Trustee to pursue the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes
offer and, if requested, provide to the Senior Note Trustee indemnity
satisfactory to the Senior Note Trustee against any loss, liability or
expense;
(d) the Senior 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 Notes do not give the
Senior Note Trustee a direction inconsistent with the request.
A Holder of a Senior Note may not use this Senior Note Indenture
to prejudice the rights of another Holder of a Senior Note or to obtain a
preference or priority over another Holder of a Senior Note.
Section 6.07. Rights of Holders of Senior Notes to Receive Payment.
Notwithstanding any other provision of this Senior Note
Indenture, the right of any Holder of a Senior Note to receive payment of
principal, premium and Liquidated Damages, if any, and interest on the Senior
Note, on or after the respective due dates expressed in the Senior 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.
Section 6.08. Collection Suit by Senior Note Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Senior Note Trustee is authorized to recover judgment in
its own name and as Senior Note Trustee of an
59
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
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 Note Trustee, its agents and counsel.
Section 6.09. Senior Note Trustee May File Proofs of Claim.
The Senior 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 Note Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Senior Note
Trustee, its agents and counsel) and the Holders of the Senior Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Senior 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 Note
Trustee, and in the event that the Senior Note Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Senior Note
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Senior Note Trustee, its agents and counsel,
and any other amounts due the Senior Note Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Senior Note Trustee, its agents and counsel, and any other
amounts due the Senior 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 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
Notes or the rights of any Holder, or to authorize the Senior Note Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Senior Note Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Senior 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 Note
Trustee and the costs and expenses of collection;
Second: to Holders of Senior Notes for amounts due and unpaid on
the Senior Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Senior 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 Note Trustee may fix a record date and payment date
for any payment to Holders of Senior Notes pursuant to this Section 6.10.
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Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Senior Note Indenture or in any suit against the Senior Note Trustee for any
action taken or omitted by it as a Senior 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 Note Trustee, a suit by a Holder of a Senior Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Senior Notes.
ARTICLE 7.
SENIOR NOTE TRUSTEE
Section 7.01. Duties of Senior Note Trustee.
(a) If an Event of Default has occurred and is continuing, the
Senior Note Trustee shall exercise such of the rights and powers vested in it by
this Senior 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 Note Trustee shall be
determined solely by the express provisions of this Senior Note Indenture
and the Senior Note Trustee need perform only those duties that are
specifically set forth in this Senior Note Indenture and no others, and no
implied covenants or obligations shall be read into this Senior Note
Indenture against the Senior Note Trustee; and
(ii) in the absence of bad faith on its part, the Senior
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 Note Trustee and conforming to the
requirements of this Senior Note Indenture. However, the Senior Note
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Senior Note Indenture.
(c) The Senior 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:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Senior 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 Note Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Senior 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.
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(d) Whether or not therein expressly so provided, every
provision of this Senior Note Indenture that in any way relates to the Senior
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 Note Indenture shall require
the Senior Note Trustee to expend or risk its own funds or incur any liability.
The Senior Note Trustee shall be under no obligation to exercise any of its
rights and powers under this Senior Note Indenture at the request of any
Holders, unless such Holder shall have offered to the Senior Note Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Senior Note Trustee shall not be liable for interest on
any money received by it except as the Senior Note Trustee may agree in writing
with the Company. Money held in trust by the Senior Note Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02. Rights of Senior Note Trustee.
(a) The Senior 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 Note Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Senior Note Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel or
both. The Senior 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 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 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 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 Note Indenture.
(e) Unless otherwise specifically provided in this Senior Note
Indenture, any demand, request, direction or notice from the Company or any
Senior Note Guarantor shall be sufficient if signed by an Officer of the Company
or Senior Note Guarantor issuing such demand, request or notice.
(f) The Senior Note Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Senior Note Indenture
at the request or direction of any of the Holders unless such Holders shall have
offered to the Senior 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 Note Trustee.
The Senior Note Trustee in its individual or any other capacity
may become the owner or pledgee of Senior 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 Note Trustee. However, in the event that the Senior Note Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the SEC for permission to continue as Senior Note Trustee or
resign. Any Agent may do the same with like rights and duties. The Senior Note
Trustee is also subject to Sections 7.10 and 7.11 hereof.
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Section 7.04. Senior Note Trustee's Disclaimer.
The Senior Note Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Senior Note Indenture or
the Senior Notes, it shall not be accountable for the Company's use of the
proceeds from the Senior Notes or any money paid to the Company or upon the
Company's direction under any provision of this Senior Note Indenture, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Senior Note Trustee, and it shall not be responsible
for any statement or recital herein or any statement in the Senior Notes or any
other document in connection with the sale of the Senior Notes or pursuant to
this Senior 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 Note Trustee, the Senior Note Trustee shall mail to
Holders of Senior 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 Note, the
Senior 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 Notes.
Section 7.06. Reports by Senior Note Trustee to Holders of the Senior Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Senior Note Indenture, and for so long as Senior
Notes remain outstanding, the Senior Note Trustee shall mail to the Holders of
the Senior 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 Note Trustee also shall comply with TIA (S) 313(b)(2).
The Senior 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 Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Senior Notes are listed in accordance with TIA (S)
313(d). The Company shall promptly notify the Senior Note Trustee when the
Senior Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company and the Senior Note Guarantors shall pay to the
Senior Note Trustee from time to time reasonable compensation for its acceptance
of this Senior Note Indenture and services hereunder. The Senior Note Trustee's
compensation shall not be limited by any law on compensation of a Senior Note
Trustee of an express trust. The Company and the Senior Note Guarantors shall
reimburse the Senior 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 Note Trustee's agents and
counsel.
The Company and the Senior Note Guarantors shall indemnify the
Senior 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 Note Indenture, including the costs and expenses of
enforcing this Senior Note Indenture against the Company and the Senior Note
Guarantors (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company and the Senior 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,
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liability or expense may be attributable to its negligence or bad faith. The
Senior Note Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Senior Note Trustee to so notify the Company
shall not relieve the Company and the Senior Note Guarantors of its obligations
hereunder. The Company shall defend the claim and the Senior Note Trustee shall
cooperate in the defense. The Senior 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 Note Guarantors
under this Section 7.07 shall survive the satisfaction and discharge of this
Senior Note Indenture.
To secure the Company's and the Senior Note Guarantors' payment
obligations in this Section, the Senior Note Trustee shall have a Lien prior to
the Senior Notes on all money or property held or collected by the Senior Note
Trustee, except that held in trust to pay principal and interest on particular
Senior Notes. Such Lien shall survive the satisfaction and discharge of this
Senior Note Indenture.
When the Senior 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 Note Trustee shall comply with the provisions of TIA
(S) 313(b)(2) to the extent applicable.
Section 7.08. Replacement of Senior Note Trustee.
A resignation or removal of the Senior Note Trustee and
appointment of a successor Senior Note Trustee shall become effective only upon
the successor Senior Note Trustee's acceptance of appointment as provided in
this Section.
The Senior 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 Notes of a majority in principal amount of the then
outstanding Senior Notes may remove the Senior Note Trustee by so notifying the
Senior Note Trustee and the Company in writing. The Company may remove the
Senior Note Trustee if:
(a) the Senior Note Trustee fails to comply with Section
7.10 hereof;
(b) the Senior Note Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Senior Note
Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Senior Note Trustee or its property; or
(d) the Senior Note Trustee becomes incapable of acting.
If the Senior Note Trustee resigns or is removed or if a vacancy
exists in the office of Senior Note Trustee for any reason, the Company shall
promptly appoint a successor Senior Note Trustee. Within one year after the
successor Senior Note Trustee takes office, the Holders of a majority in
principal
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amount of the then outstanding Senior Notes may appoint a successor Senior Note
Trustee to replace the successor Senior Note Trustee appointed by the Company.
If a successor Senior Note Trustee does not take office within 60 days
after the retiring Senior Note Trustee resigns or is removed, the retiring
Senior Note Trustee, the Company, or the Holders of Senior Notes of at least 10%
in principal amount of the then outstanding Senior Notes may petition any court
of competent jurisdiction for the appointment of a successor Senior Note
Trustee.
If the Senior Note Trustee, after written request by any Holder of a
Senior Note who has been a Holder of a Senior Note for at least six months,
fails to comply with Section 7.10, such Holder of a Senior Note may petition any
court of competent jurisdiction for the removal of the Senior Note Trustee and
the appointment of a successor Senior Note Trustee.
A successor Senior Note Trustee shall deliver a written acceptance of
its appointment to the retiring Senior Note Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Senior Note Trustee shall
become effective, and the successor Senior Note Trustee shall have all the
rights, powers and duties of the Senior Note Trustee under this Senior Note
Indenture. The successor Senior Note Trustee shall mail a notice of its
succession to Holders of the Senior Notes. The retiring Senior Note Trustee
shall promptly transfer all property held by it as Senior Note Trustee to the
successor Senior Note Trustee, provided all sums owing to the Senior Note
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07 hereof. Notwithstanding replacement of the Senior 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 Note Trustee.
Section 7.09. Successor Senior Note Trustee by Merger, etc.
If the Senior 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 Note Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Senior 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 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 Note Indenture shall always have a Senior Note Trustee who
satisfies the requirements of TIA (S) 310(a)(1), (2) and (5). The Senior Note
Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Senior Note Trustee is subject to TIA (S) 311(a), excluding any
creditor relationship listed in TIA (S) 311(b). A Senior Note Trustee who has
resigned or been removed shall be subject to TIA (S) 311(a) to the extent
indicated therein.
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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 to all outstanding Senior 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 Notes and
to have each Senior Note Guarantor's obligation discharged with respect to its
Senior 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 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 Note Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Senior Notes
and this Senior Note Indenture (and the Senior 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 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 Notes when such payments are due, (b) the Company's obligations with
respect to such Senior Notes under Article 2 and Section 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Senior 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 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 and 4.17 hereof
with respect to the outstanding Senior Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Senior 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 Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Senior Notes, the Company and each Senior 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 Note Indenture and such Senior
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section
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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 Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Senior 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 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 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 Note Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Senior 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 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 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 Note Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Senior Note Trustee confirming that
the Holders of the outstanding Senior 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 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 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;
(f) the Company shall have delivered to the Senior 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;
67
(g) the Company shall have delivered to the Senior 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 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
Note Trustee (or other qualifying Senior Note Trustee, collectively for purposes
of this Section 8.05, the "Senior Note Trustee") pursuant to Section 8.04 hereof
in respect of the outstanding Senior Notes shall be held in trust and applied by
the Senior Note Trustee, in accordance with the provisions of such Senior Notes
and this Senior Note Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Senior Note
Trustee may determine, to the Holders of such Senior 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 Note Guarantors shall pay and
indemnify the Senior 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 Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Senior 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 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 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 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 by the
Company) shall be discharged from such trust; and the Holder of such Senior Note
shall thereafter, as a secured creditor, look only to the Company for payment
thereof, and all liability of the Senior Note Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as Senior Note
Trustee thereof, shall thereupon cease; provided, however, that the Senior 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.
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Section 8.07. Reinstatement.
If the Senior 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 Note Indenture and the Senior 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 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 Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Senior Notes to receive such payment from the money held by the Senior Note
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Senior Notes.
Notwithstanding Section 9.02 of this Senior Note Indenture, the
Company, the Senior Note Guarantors and the Senior Note Trustee may amend or
supplement this Senior Note Indenture, the Senior Subsidiary Guarantees or the
Senior Notes without the consent of any Holder of a Senior Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or
in place of certificated Senior 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
Note Guarantor's obligations to the Holders of the Senior Notes by a
successor to the Company or a Senior Note Guarantor pursuant to Article 5
or Article 10 hereof;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Senior Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Senior Note Indenture under the TIA;
(f) to provide for the issuance of Additional Senior Notes in
accordance with the limitations set forth in this Senior Note Indenture as
of the date hereof; or
(g) to allow any Senior Note Guarantor to execute a supplemental
Senior Note Indenture and/or a Senior Subsidiary Guarantee with respect to
the Senior 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 Note Indenture, and upon receipt by the Senior Note Trustee of the
documents described in Section 7.02 hereof, the Senior Note Trustee shall join
with the Company and the Senior Note Guarantors in the execution of any amended
or supplemental Senior Note Indenture authorized or permitted by the terms of
this Senior Note Indenture
69
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Senior Note Trustee shall not be obligated to enter
into such amended or supplemental Senior Note Indenture that affects its own
rights, duties or immunities under this Senior Note Indenture or otherwise.
Section 9.02. With Consent of Holders of Senior Notes.
Except as provided below in this Section 9.02, the Company and
the Senior Note Trustee may amend or supplement this Senior Note Indenture
(including Sections 3.09, 3.10, 4.10 and 4.15 hereof), the Senior Subsidiary
Guarantees and the Senior Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the Senior Notes
(including Additional Senior 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 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 Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes (including Additional Senior 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 Notes). Section
2.08 hereof shall determine which Senior 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 Note Indenture, and upon the filing with the Senior Note
Trustee of evidence satisfactory to the Senior Note Trustee of the consent of
the Holders of Senior Notes as aforesaid, and upon receipt by the Senior Note
Trustee of the documents described in Section 7.02 hereof, the Senior Note
Trustee shall join with the Company in the execution of such amended or
supplemental Senior Note Indenture unless such amended or supplemental Senior
Note Indenture directly affects the Senior Note Trustee's own rights, duties or
immunities under this Senior Note Indenture or otherwise, in which case the
Senior Note Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Senior Note Indenture.
It shall not be necessary for the consent of the Holders of
Senior 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 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 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 Notes (including Additional Senior 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 Note Indenture or the Senior 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 Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Senior Notes whose Holders
must consent to an amendment, supplement or waiver;
70
(b) reduce the principal of or change the fixed maturity of any
Senior Note or alter or waive any of the provisions with respect to the
redemption of the Senior 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 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 Notes (except a rescission of acceleration of the Senior
Notes by the Holders of at least a majority in aggregate principal amount
of the then outstanding Senior Notes (including Additional Senior Notes, if
any) and a waiver of the payment default that resulted from such
acceleration;
(e) make any Senior Note payable in money other than that stated
in the Senior Notes;
(f) make any change in the provisions of this Senior Note
Indenture relating to waivers of past Defaults or the rights of Holders of
Senior Notes to receive payments of principal of or premium, interest or
Liquidated Damages, if any, on the Senior Notes;
(g) waive a redemption payment with respect to any Senior Note
(other than a payment required pursuant to Section 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 Note Guarantor from any of its obligations
under its Senior Subsidiary Guarantee or this Senior Note Indenture, except
in accordance with the terms of this Senior Note Indenture.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Senior Note Indenture or
the Senior Notes shall be set forth in a amended or supplemental Senior 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 Note is a continuing consent by the Holder
of a Senior Note and every subsequent Holder of a Senior Note or portion of a
Senior Note that evidences the same debt as the consenting Holder's Senior Note,
even if notation of the consent is not made on any Senior Note. However, any
such Holder of a Senior Note or subsequent Holder of a Senior Note may revoke
the consent as to its Senior Note if the Senior 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 Notes.
The Senior Note Trustee may place an appropriate notation about
an amendment, supplement or waiver on any Senior Note thereafter authenticated.
The Company in exchange for all
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Senior Notes may issue and the Senior Note Trustee shall, upon receipt of an
Authentication Order, authenticate new Senior Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Senior
Note shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Senior Note Trustee to Sign Amendments, etc.
The Senior Note Trustee shall sign any amended or supplemental
Senior 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 Note Trustee. The Company may not sign an amendment or
supplemental Senior Note Indenture until the Board of Directors approves it. In
executing any amended or supplemental Senior Note Indenture, the Senior 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 Note Indenture is
authorized or permitted by this Senior Note Indenture.
ARTICLE 10.
SENIOR SUBSIDIARY GUARANTEES
Section 10.01. Guarantee.
Subject to this Article 10, each of the Senior Note Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Senior Note authenticated and delivered by the Senior Note Trustee and to the
Senior Note Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Senior Note Indenture, the Senior Notes or the
obligations of the Company hereunder or thereunder, that: (a) the principal of
and interest on the Senior 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 Notes, if any, if lawful, and
all other obligations of the Company to the Holders or the Senior 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 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
Note Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Senior Note Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
The Senior Note Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Senior Notes or this Senior Note Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Senior 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 Note Guarantor. Each Senior 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 Senior Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Senior Notes
and this Senior Note Indenture.
72
If any Holder or the Senior Note Trustee is required by any court
or otherwise to return to the Company, the Senior Note Guarantors or any
custodian, Senior Note Trustee, liquidator or other similar official acting in
relation to either the Company or the Senior Note Guarantors, any amount paid by
either to the Senior Note Trustee or such Holder, this Senior Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Senior 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 Note Guarantor further agrees that, as between
the Senior Note Guarantors, on the one hand, and the Holders and the Senior 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 Senior 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 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Senior Note
Guarantors for the purpose of this Senior Subsidiary Guarantee. The Senior Note
Guarantors shall have the right to seek contribution from any non-paying Senior
Note Guarantor so long as the exercise of such right does not impair the rights
of the Holders under the Senior Subsidiary Guarantee.
Section 10.02. Limitation on Senior Note Guarantor Liability.
Each Senior Note Guarantor, and by its acceptance of Senior
Notes, each Holder, hereby confirms that it is the intention of all such parties
that the Senior Subsidiary Guarantee of such Senior 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 Senior
Subsidiary Guarantee. To effectuate the foregoing intention, the Senior Note
Trustee, the Holders and the Senior Note Guarantors hereby irrevocably agree
that the obligations of such Senior Note Guarantor under its Senior Subsidiary
Guarantee and this Article 10 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 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 Note Guarantor in respect
of the obligations of such other Senior Note Guarantor under this Article 10,
result in the obligations of such Senior Note Guarantor under its Senior
Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03. Execution and Delivery of Senior Subsidiary Guarantee.
To evidence its Senior Subsidiary Guarantee set forth in Section
10.01, each Senior Note Guarantor hereby agrees that a notation of such Senior
Subsidiary Guarantee substantially in the form included in Exhibit E shall be
endorsed by an Officer of such Senior Note Guarantor on each Senior Note
authenticated and delivered by the Senior Note Trustee and that this Senior Note
Indenture shall be executed on behalf of such Senior Note Guarantor by its
President or one of its Vice Presidents.
Each Senior Note Guarantor hereby agrees that its Senior
Subsidiary Guarantee set forth in Section 10.01 shall remain in full force and
effect notwithstanding any failure to endorse on each Senior Note a notation of
such Senior Subsidiary Guarantee.
If an Officer whose signature is on this Senior Note Indenture
or on the Senior Subsidiary Guarantee no longer holds that office at the time
the Senior Note Trustee authenticates the Senior Note on which a Senior
Subsidiary Guarantee is endorsed, the Senior Subsidiary Guarantee shall be valid
nevertheless.
73
The delivery of any Senior Note by the Senior Note Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the
Senior Subsidiary Guarantee set forth in this Senior Note Indenture on behalf of
the Senior Note Guarantors.
In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Senior Note Indenture, if required
by Section 4.16 hereof, the Company shall cause such Subsidiaries to execute
supplemental Senior Note Indentures to this Senior Note Indenture and Senior
Subsidiary Guarantees in accordance with Section 4.16 hereof and this Article
10, to the extent applicable.
Section 10.04. Senior Note Guarantors May Consolidate, etc., on Certain Terms.
No Senior Note Guarantor may consolidate with or merge with or
into (whether or not such Senior Note Guarantor is the surviving Person) another
Person whether or not affiliated with such Senior Note Guarantor unless:
(a) subject to Section 10.04 hereof, the Person formed by or
surviving any such consolidation or merger (if other than a Senior Note
Guarantor or the Company) unconditionally assumes all the obligations of such
Senior Note Guarantor, pursuant to a supplemental Senior Note Indenture in form
and substance reasonably satisfactory to the Senior Note Trustee, under the
Senior Notes, this Senior Note Indenture, the Registration Rights Agreement and
the Senior 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 Note
Indenture, executed and delivered to the Senior Note Trustee and satisfactory in
form to the Senior Note Trustee, of the Senior Subsidiary Guarantee endorsed
upon the Senior Notes and the due and punctual performance of all of the
covenants and conditions of this Senior Note Indenture to be performed by the
Senior Note Guarantor, such successor Person shall succeed to and be substituted
for the Senior Note Guarantor with the same effect as if it had been named
herein as a Senior Note Guarantor. Such successor Person thereupon may cause to
be signed any or all of the Senior Subsidiary Guarantees to be endorsed upon all
of the Senior Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Senior Note Trustee. All the Senior
Subsidiary Guarantees so issued shall in all respects have the same legal rank
and benefit under this Senior Note Indenture as the Senior Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of this Senior
Note Indenture as though all of such Senior 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 Note
Indenture or in any of the Senior Notes shall prevent any consolidation or
merger of a Senior Note Guarantor with or into the Company or another Senior
Note Guarantor, or shall prevent any sale or conveyance of the property of a
Senior Note Guarantor as an entirety or substantially as an entirety to the
Company or another Senior Note Guarantor.
74
Section 10.05. Releases Following Sale of Assets.
In the event of (a) a sale or other disposition of all of the
assets of any Senior Note Guarantor, by way of merger, consolidation or
otherwise, (b) a sale or other disposition of all of the capital stock of any
Senior Note Guarantor or (c) the designation of a Senior Note Guarantor as an
Unrestricted Subsidiary in accordance with the terms of the Senior Note
Indenture, then such Senior 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 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 Note Guarantor) will be released and relieved of any
obligations under its Senior Subsidiary Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Senior Note Indenture, including without
limitation Section 4.10 hereof. Upon delivery by the Company to the Senior 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 Note Indenture, including without
limitation Section 4.10 hereof, the Senior Note Trustee shall execute any
documents reasonably required in order to evidence the release of any Senior
Note Guarantor from its obligations under its Senior Subsidiary Guarantee.
Any Senior Note Guarantor not released from its obligations
under its Senior Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Senior Notes and for the other obligations of
any Senior Note Guarantor under this Senior Note Indenture as provided in this
Article 10.
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Senior Note Indenture limits, qualifies
or conflicts with the duties imposed by TIA (S) 318(c), the imposed duties shall
control.
Section 11.02. Notices.
Any notice or communication by the Company, any Senior Note
Guarantor or the Senior 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 Note Guarantor:
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
75
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Rise ▇. ▇▇▇▇▇▇
If to the Senior Note Trustee:
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
The Company, any Senior Note Guarantor or the Senior 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.
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 Note Trustee and each Agent at the same time.
Section 11.03. Communication by Holders of Senior Notes with Other Holders of
Senior Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other
Holders with respect to their rights under this Senior Note Indenture or the
Senior Notes. The Company, the Senior Note Trustee, the Registrar and anyone
else shall have the protection of TIA (S) 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Senior
Note Trustee to take any action under this Senior Note Indenture, the Company
shall furnish to the Senior Note Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Senior Note Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Senior Note
Indenture relating to the proposed action have been satisfied; and
76
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Senior Note Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Senior 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 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.
Section 11.06. Rules by Senior Note Trustee and Agents.
The Senior 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 11.07. 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 Note Guarantor, as
such, shall have any liability for any obligations of the Company or such Senior
Note Guarantor under the Senior Notes, the Senior Subsidiary Guarantees, this
Senior 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 Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Notes.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SENIOR NOTE INDENTURE, THE SENIOR NOTES AND THE SENIOR
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.
77
Section 11.09. No Adverse Interpretation of Other Agreements.
This Senior Note Indenture may not be used to interpret any
other Senior Note Indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such Senior Note Indenture, loan or
debt agreement may not be used to interpret this Senior Note Indenture.
Section 11.10. Successors.
All agreements of the Company in this Senior Note Indenture and
the Senior Notes shall bind its successors. All agreements of the Senior Note
Trustee in this Senior Note Indenture shall bind its successors.
Section 11.11. Severability.
In case any provision in this Senior Note Indenture or in the
Senior 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 11.12. Counterpart Originals.
The parties may sign any number of copies of this Senior Note
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Senior Note Indenture have been inserted for
convenience of reference only, are not to be considered a part of this Senior
Note Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
[Signatures on following page]
78
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
Indenture signature page(s)
EXHIBIT A1
(Face of Senior Note)
================================================================================
[Insert the Global Senior Note Legend, if applicable pursuant to the provisions
of the Senior Note Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Senior Note Indenture]
CUSIP/CINS
8-7/8% [Series A] [Series B] Senior 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 Notes referred to in the
within-mentioned Senior Note Indenture:
State Street Bank and Trust Company,
as Senior Note Trustee
By:
-------------------
================================================================================
A1-1
(Back of Senior Note)
8-7/8% [Series A] [Series B] Senior Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them in the
Senior 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 Note
at 8-7/8% 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 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 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 Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Senior Notes at the close of business on the May 1 or
November 1 next preceding the Interest Payment Date, even if such Senior 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 Note Indenture with respect to
defaulted interest. The Senior 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 Notes and all
other Senior 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 Note Trustee under the Senior 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 Note Indenture. The Company issued the Senior Notes under an
Senior Note Indenture dated as of May 18, 1998 ("Senior Note Indenture") between
the Company and the Senior Note Trustee. The terms of the Senior Notes include
those stated in the Senior Note Indenture and those made part of the Senior Note
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code (S)(S) 77aaa-77bbbb). The Senior Notes are subject to all such terms, and
Holders are referred to the Senior Note Indenture and such Act for a statement
of such terms. To the extent any provision of this Senior Note conflicts with
the express provisions of the Senior Note Indenture, the provisions of the
A1-2
Senior Note Indenture shall govern and be controlling. The Senior Notes are
obligations of the Company limited to $550.0 million in aggregate principal
amount.
5. Optional Redemption.
(a) The Senior 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 Notes will be redeemable at a
redemption price equal to 100% of the principal amount thereof plus the
applicable Senior Notes Make Whole Premium, plus, to the extent not included in
the Senior Notes Make Whole Premium, accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption. For purposes of the foregoing,
"Senior Notes Make Whole Premium" means, with respect to a Senior Note, an
amount equal to the greater of (a) 104.438% of the outstanding principal amount
of such Senior Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior Note as if
such Senior 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 Note.
(c) On or after May 15, 2003, the Senior 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.............................. 104.438%
2004.............................. 102.958%
2005.............................. 101.479%
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 Notes issued under this Senior Note
Indenture at a redemption price of 108.875% 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 Notes
issued remain outstanding immediately after the occurrence of such redemption
(excluding Senior 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 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 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
A1-3
redeem the Senior 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 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
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 Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the Senior Note
Indenture to purchase the maximum principal amount of Senior Notes (including
any Additional Senior 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 Note Indenture. To the extent that the
aggregate amount of Senior Notes (including any Additional Senior 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 Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Senior Note Trustee
shall select the Senior Notes to be purchased on a pro rata basis. Holders of
Senior 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 Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Senior 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 Notes are to be redeemed at its registered address. Senior
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 Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Senior Notes or portions thereof called for redemption.
10. Denominations, Transfer, Exchange. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and Senior
Notes may be exchanged as provided in the Senior Note Indenture. The Registrar
and the Senior 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 Note
Indenture. The Company need not exchange or register the transfer of any Senior
Note or portion of a Senior Note selected for redemption, except for the
unredeemed portion of any Senior Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Senior Notes for a period of
15 days before a selection of Senior 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 Note
may be treated as its owner for all purposes.
A1-4
12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Senior Note Indenture, the Senior Subsidiary Guarantees or the
Senior 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 Notes and
Additional Senior Notes, if any, voting as a single class, and any existing
default or compliance with any provision of the Senior Note Indenture, the
Senior Subsidiary Guarantees or the Senior Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Senior
Notes and Additional Senior Notes, if any, voting as a single class. Without the
consent of any Holder of a Senior Note, the Senior Note Indenture, the Senior
Subsidiary Guarantees or the Senior Notes may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for uncertificated Senior
Notes in addition to or in place of certificated Senior Notes, to provide for
the assumption of the Company's or Senior Note Guarantor's obligations to
Holders of the Senior 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 Notes or that does not adversely affect the legal rights under the
Senior 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 Note
Indenture under the Trust Indenture Act, to provide for the Issuance of
Additional Senior Notes in accordance with the limitations set forth in the
Senior Note Indenture, or to allow any Senior Note Guarantor to execute a
supplemental Senior Note Indenture to the Senior Note Indenture and/or a Senior
Subsidiary Guarantee with respect to the Senior 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 Notes and such default continues
for a period of 30 days; (ii) the Company defaults in the payment when due of
principal of or premium, if any, on the Senior Notes when the same becomes due
and payable at maturity, upon redemption (including in connection with an offer
to purchase) or otherwise; (iii) the Company or any of its Subsidiaries fails to
make the offer required or to purchase any of the Senior Notes as required by
Sections 4.10 and/or 4.15 of the Senior Note Indenture; (iv) the Company fails
to comply for 30 days after notice to the Company by the Senior Note Trustee
with any of the provisions of Sections 4.07 or 4.09 of the Senior Note
Indenture; or the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in the Senior Note Indenture or the
Senior Notes for 60 days after notice to the Company by the Senior Note Trustee
or the Holders of at least 25% in aggregate principal amount of the Senior 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
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 Note Indenture, any
Senior 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 Note Guarantor, or any Person acting on behalf of any
Senior Note Guarantor, shall deny or disaffirm its obligations under such Senior
Note Guarantor's Senior 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.
A1-5
If any Event of Default occurs and is continuing, the Senior Note
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Senior Notes may declare all the Senior Notes to be due and payable;
provided, that so long as any Indebtedness permitted to be incurred pursuant to
the Senior Credit Facilities shall be outstanding, such acceleration shall not
be effective until the earlier of (i) an acceleration under any such
Indebtedness under the Senior Credit Facilities or (ii) five Business Days after
receipt by the Company of written notice of such acceleration of the Senior
Notes. Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may not
enforce the Senior Note Indenture or the Senior Notes except as provided in the
Senior Note Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Senior Notes may direct the Senior Note
Trustee in its exercise of any trust or power. The Senior Note Trustee may
withhold from Holders of the Senior 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
Notes then outstanding by notice to the Senior Note Trustee may on behalf of the
Holders of all of the Senior Notes waive any existing Default or Event of
Default and its consequences under the Senior Note Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Senior Notes. The Company is required to deliver to the Senior Note Trustee
annually a statement regarding compliance with the Senior Note Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Senior Note Trustee a statement specifying such Default or
Event of Default.
14. Senior Note Trustee Dealings with Company. The Senior 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
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 Notes or the
Senior 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 Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
16. Authentication. This Senior Note shall not be valid until
authenticated by the manual signature of the Senior 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 Notes
and Restricted Definitive Senior Notes. In addition to the rights provided to
Holders of Senior Notes under the Senior Note Indenture, Holders of Restricted
Global Senior Notes and Restricted Definitive Senior 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 Notes, Holders of Restricted Global
Senior Notes and Restricted Definitive Senior 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 Notes (collectively, the "Registration
Rights Agreement").
A1-6
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 Notes and the Senior 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 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 Note Indenture and/or the Registration
Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
A1-7
Assignment Form
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint____________________________________________________
to transfer this Senior 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 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.
A1-8
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Senior Note Indenture, check the
box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Senior Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the Senior 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 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
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL SENIOR NOTE/1/
The following exchanges of a part of this Global Senior Note for an
interest in another Global Senior Note or for a Definitive Senior Note, or
exchanges of a part of another Global Senior Note or Definitive Senior Note for
an interest in this Global Senior Note, have been made:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Global authorized
Principal Principal Senior Note officer of
Amount of Amount of following Senior Note
this Global this Global such decrease Trustee or
Date of Exchange Senior Note Senior Note (or increase) Custodian
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/1/ This should be included only if the Senior Note is issued in global form.
A1-10
EXHIBIT A2
(Face of Regulation S Temporary Global Senior Note)
================================================================================
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SENIOR
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SENIOR NOTES, ARE AS SPECIFIED IN THE SENIOR NOTE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL SENIOR NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR NOTES
IN DEFINITIVE FORM, THIS SENIOR 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 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.
A2-1
8-7/8% Series A Senior 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 Notes referred to in the
within-mentioned Senior Note Indenture:
State Street Bank and Trust Company,
as Senior Note Trustee
By:
================================================================================
A2-2
(Back of Regulation S Temporary Global Senior Note)
8-7/8% Series A Senior Notes due 2008
Capitalized terms used herein shall have the meanings assigned to them
in the Senior 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
Note at 8-7/8% 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 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 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 Note is exchanged for
one or more Regulation S Permanent Global Senior 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 Note shall in all other respects
be entitled to the same benefits as other Senior Notes under the Senior Note
Indenture.
2. Method of Payment. The Company will pay interest on the Senior
Notes (except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Senior Notes at the close of business on the May 1 or
November 1 next preceding the Interest Payment Date, even if such Senior 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 Note Indenture with respect to
defaulted interest. The Senior 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 Notes and all other Senior
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 Note Trustee under the Senior 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.
A2-3
4. Senior Note Indenture. The Company issued the Senior Notes under
an Senior Note Indenture dated as of May 18, 1998 ("Senior Note Indenture")
between the Company and the Senior Note Trustee. The terms of the Senior Notes
include those stated in the Senior Note Indenture and those made part of the
Senior Note Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Senior Notes are subject to all
such terms, and Holders are referred to the Senior Note Indenture and such Act
for a statement of such terms. The Senior Notes are secured obligations of the
Company limited to $550.0 million in aggregate principal amount.
5. Optional Redemption.
(a) The Senior 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 Notes will be redeemable at a
redemption price equal to 100% of the principal amount thereof plus the
applicable Senior Notes Make Whole Premium, plus, to the extent not included in
the Senior Notes Make Whole Premium, accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption. For purposes of the foregoing,
"Senior Notes Make Whole Premium" means, with respect to a Senior Note, an
amount equal to the greater of (a) 104.438% of the outstanding principal amount
of such Senior Note and (b) the excess of (1) the present value of the remaining
interest, premium, if any, and principal payments due on such Senior Note as if
such Senior 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 Note.
(c) On or after May 15, 2003, the Senior 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 ................................... 104.438%
2004 ................................... 102.958%
2005 ................................... 101.479%
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 Notes issued under this Senior Note
Indenture at a redemption price of 108.875% 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 Notes
issued remain outstanding immediately after the occurrence of such redemption
(excluding Senior 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 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 Notes.
A2-4
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 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 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 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 Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the Senior Note
Indenture to purchase the maximum principal amount of Senior 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 Note Indenture. To the extent that the
aggregate amount of Senior 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 Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Senior Note Trustee shall select the Senior Notes to be purchased
on a pro rata basis. Holders of Senior 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 Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Senior 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 Notes are to be redeemed at its registered address. Senior
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 Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Senior Notes or portions thereof called for redemption.
10. Denominations, Transfer, Exchange. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and Senior
Notes may be exchanged as provided in the Senior Note Indenture. The Registrar
and the Senior 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 Note
Indenture. The Company need not exchange or register the transfer of any Senior
Note or portion of a Senior Note selected for redemption, except for the
unredeemed portion of any Senior Note being redeemed in part. Also, it need not
exchange or register the transfer of any Senior Notes for a period of 15 days
before a selection of Senior Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
A2-5
This Regulation S Temporary Global Senior Note is exchangeable in
whole or in part for one or more Global Senior 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 Note Indenture. Upon exchange
of this Regulation S Temporary Global Senior Note for one or more Global Senior
Notes, the Senior Note Trustee shall cancel this Regulation S Temporary Global
Senior Note.
11. Persons Deemed Owners. The registered Holder of a Senior Note
may be treated as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior 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 Notes and Additional
Senior Notes, if any, voting as a single class, and any existing default or
compliance with any provision of the Senior Note Indenture, the Senior
Subsidiary Guarantees or the Senior Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Senior Notes
and Additional Senior Notes, if any, voting as a single class. Without the
consent of any Holder of a Senior Note, the Senior Note Indenture, the Senior
Subsidiary Guarantees or the Senior Notes may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for uncertificated Senior
Notes in addition to or in place of certificated Senior Notes, to provide for
the assumption of the Company's or Senior Note Guarantor's obligations to
Holders of the Senior 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 Notes or that does not adversely affect the legal rights under the
Senior 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 Note
Indenture under the Trust Indenture Act, to provide for the Issuance of
Additional Senior Notes in accordance with the limitations set forth in the
Senior Note Indenture, or to allow any Senior Note Guarantor to execute a
supplemental Senior Note Indenture to the Senior Note Indenture and/or a Senior
Subsidiary Guarantee with respect to the Senior 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 Notes and such default continues for a
period of 30 days; (ii) the Company defaults in the payment when due of
principal of or premium, if any, on the Senior Notes when the same becomes due
and payable at maturity, upon redemption (including in connection with an offer
to purchase) or otherwise; (iii) the Company or any of its Subsidiaries fails to
make the offer required or to purchase any of the Senior Notes as required by
Sections 4.10 and/or 4.15 of the Senior Note Indenture; (iv) the Company fails
to comply for 30 days after notice to the Company by the Senior Note Trustee
with any of the provisions of Sections 4.07 or 4.09 of the Senior Note
Indenture; or the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in the Senior Note Indenture or the
Senior Notes for 60 days after notice to the Company by the Senior Note Trustee
or the Holders of at least 25% in aggregate principal amount of the Senior 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
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
A2-6
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 Note Indenture, any Senior 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 Note
Guarantor, or any Person acting on behalf of any Senior Note Guarantor, shall
deny or disaffirm its obligations under such Senior Note Guarantor's Senior
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 Note
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Senior Notes may declare all the Senior Notes to be due and payable;
provided, that so long as any Indebtedness permitted to be incurred pursuant to
the Senior Credit Facilities shall be outstanding, such acceleration shall not
be effective until the earlier of (i) an acceleration under any such
Indebtedness under the Senior Credit Facilities or (ii) five Business Days after
receipt by the Company of written notice of such acceleration of the Senior
Notes. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Senior
Notes will become due and payable without further action or notice. Holders may
not enforce the Senior Note Indenture or the Senior Notes except as provided in
the Senior Note Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Senior Notes may direct the
Senior Note Trustee in its exercise of any trust or power. The Senior Note
Trustee may withhold from Holders of the Senior 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 Notes then outstanding by notice to the Senior Note Trustee may on
behalf of the Holders of all of the Senior Notes waive any existing Default or
Event of Default and its consequences under the Senior Note Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Senior Notes. The Company is required to deliver to the
Senior Note Trustee annually a statement regarding compliance with the Senior
Note Indenture, and the Company is required upon becoming aware of any Default
or Event of Default, to deliver to the Senior Note Trustee a statement
specifying such Default or Event of Default.
14. Senior Note Trustee Dealings with Company. The Senior 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
Note Trustee.
15. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company or any of the Senior Note
Guarantors, as such, shall not have any liability for any obligations of the
Company or such Senior Note Guarantor under the Senior Notes, the Senior
Subsidiary Guarantees or the Senior 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 Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Senior Notes.
16. Authentication. This Senior Note shall not be valid until
authenticated by the manual signature of the Senior 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
A2-7
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 Notes
and Restricted Definitive Senior Notes. In addition to the rights provided to
Holders of Senior Notes under the Senior Note Indenture, Holders of Restricted
Global Senior Notes and Restricted Definitive Senior 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 Notes, Holders of Restricted Global
Senior Notes and Restricted Definitive Senior 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 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 Notes and the Senior 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 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 Note Indenture and/or the Registration
Rights Agreement. Requests may be made to:
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
A2-8
Assignment Form
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior 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 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 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.
A2-9
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Senior 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 Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Senior
Note Indenture, stat e the amount you elect to have purchased: $___________
--------------------------------------------------------------------------------
Date:_____________
Your Signature:-----------------------------------------------
(Sign exactly as your name appears on the face of this
Senior 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.
A2-10
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE REGULATION S TEMPORARY GLOBAL SENIOR NOTE
The following exchanges of a part of this Regulation S Temporary
Global Senior Note for an interest in another Global Senior Note, or of other
Restricted Global Senior Notes for an interest in this Regulation S Temporary
Global Senior Note, have been made:
Principal Amount
Amount of of this Global Signature of
decrease in Amount of increase Senior Note authorized officer
Principal Amount in Principal following such of Senior Note
of this Global Amount of this decrease (or Trustee or
Date of Exchange Senior Note Global Senior Note increase) Custodian
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A2-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: 8-7/8% Senior Notes due 2008
----------------------------
(CUSIP __________)
Reference is hereby made to the Senior Note Indenture, dated as of May
18, 1998 (the "Senior Note Indenture"), between P&L Coal Holdings Corporation,
as issuer (the "Company"), and State Street Bank and Trust Company, as Senior
Note Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Senior Note Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Senior Note[s] or interest in such Senior Note[s] specified in Annex A hereto,
in the principal amount of $___________ in such Senior 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 Note or a Definitive Senior 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 Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Senior 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 Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Senior Note and/or the Definitive Senior Note and in the Senior
Note Indenture and the Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
Temporary Regulation S Global Senior Note, the Regulation S Global Senior Note
------------------------------------------------------------------------------
or a Definitive Senior 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 Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Senior Note, the Temporary Regulation S Global Senior
Note and/or the Definitive Senior Note and in the Senior Note Indenture and the
Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
-------------------------------------------------------------------
interest in the IAI Global Senior Note or a Definitive Senior 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 Notes and
Restricted Definitive Senior 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 Note or Restricted Definitive Senior 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
Note Indenture and (2) if such Transfer is in respect of a principal amount of
Senior 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 Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Senior Note and/or the Definitive Senior Notes and in the Senior
Note Indenture and the Securities Act.
B-2
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Senior Note or of an Unrestricted Definitive Senior 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
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 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 Note Indenture, the transferred
beneficial interest or Definitive Senior Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Senior Notes, on Restricted Definitive Senior Notes and in
the Senior 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 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 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
Note Indenture, the transferred beneficial interest or Definitive Senior Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Senior Notes, on
Restricted Definitive Senior Notes and in the Senior 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 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 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 Note Indenture, the
transferred beneficial interest or Definitive Senior Note will not be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Senior Notes or Restricted Definitive Senior Notes and
in the Senior 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 Note (CUSIP _________), or
(ii) [_] Regulation S Global Senior Note (CUSIP _________), or
(iii) [_] IAI Global Senior Note (CUSIP ________); or
(b) [_] a Restricted Definitive Senior Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Senior Note (CUSIP ________), or
(ii) [_] Regulation S Global Senior Note (CUSIP ________), or
(iii) [_] IAI Global Senior Note (CUSIP ________); or
(iv) [_] Unrestricted Global Senior Note (CUSIP ________); or
(b) [_] a Restricted Definitive Senior Note; or
(c) [_] an Unrestricted Definitive Senior Note,
in accordance with the terms of the Senior Note Indenture.
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇&▇ Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: 8-7/8% Senior Notes due 2008
----------------------------
(CUSIP __________)
Reference is hereby made to the Senior Note Indenture, dated as of May
18, 1998 (the "Senior Note Indenture"), between P&L Coal Holdings Corporation,
as issuer (the "Company"), and State Street Bank and Trust Company, as Senior
Note Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Senior Note Indenture.
____________, (the "Owner") owns and proposes to exchange the Senior
Note[s] or interest in such Senior Note[s] specified herein, in the principal
amount of $____________ in such Senior Note[s] or interests (the "Exchange").
In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Senior Notes or Beneficial Interests in a
Restricted Global Senior Note for Unrestricted Definitive Senior Notes or
Beneficial Interests in an Unrestricted Global Senior Note
(a) [_] Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------
Global Senior Note to beneficial interest in an Unrestricted Global Senior Note.
-------------------------------------------------------------------------------
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Senior Note for a beneficial interest in an Unrestricted
Global Senior 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 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
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 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 Note to Unrestricted Definitive Senior Note. In connection with
---------------------------------------------------------
the Exchange of the Owner's beneficial interest in a Restricted Global Senior
Note for an Unrestricted Definitive Senior Note, the Owner hereby certifies (i)
the Definitive Senior 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 Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Note Indenture and the Private Placement Legend are not
required in order
to maintain compliance with the Securities Act and (iv) the Definitive Senior
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 Note to
--------------------------------------------------------------
beneficial interest in an Unrestricted Global Senior Note. In connection with
---------------------------------------------------------
the Owner's Exchange of a Restricted Definitive Senior Note for a beneficial
interest in an Unrestricted Global Senior 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 Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior 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 Note to
--------------------------------------------------------------
Unrestricted Definitive Senior Note. In connection with the Owner's Exchange of
-----------------------------------
a Restricted Definitive Senior Note for an Unrestricted Definitive Senior Note,
the Owner hereby certifies (i) the Unrestricted Definitive Senior 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 Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Senior 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
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 Notes or Beneficial Interests in
Restricted Global Senior Notes for Restricted Definitive Senior Notes or
Beneficial Interests in Restricted Global Senior Notes
(a) [_] Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------
Global Senior Note to Restricted Definitive Senior Note. In connection with the
-------------------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Senior Note
for a Restricted Definitive Senior Note with an equal principal amount, the
Owner hereby certifies that the Restricted Definitive Senior 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 Note Indenture, the
Restricted Definitive Senior Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Senior Note and in the Senior Note Indenture and the
Securities Act.
(b) [_] Check if Exchange is from Restricted Definitive Senior Note to
--------------------------------------------------------------
beneficial interest in a Restricted Global Senior Note. In connection with the
------------------------------------------------------
Exchange of the Owner's Restricted Definitive Senior Note for a beneficial
interest in the [CHECK ONE] [_] 144A Global Senior Note, [_] Regulation S Global
Senior Note, [_] IAI Global Senior 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
Senior 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 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 Note and in the Senior
Note Indenture and the Securities Act.
C-2
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-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
P&L Coal Holdings Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: 8-7/8% Senior Notes due 2008
----------------------------
(CUSIP __________)
Reference is hereby made to the Senior Note Indenture, dated as of May
18, 1998 (the "Senior Note Indenture"), between P&L Coal Holdings Corporation,
as issuer (the "Company"), and State Street Bank and Trust Company, as Senior
Note Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Senior Note Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Senior Note, or
(b) [_] a Definitive Senior Note,
we confirm that:
1. We understand that any subsequent transfer of the Senior Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Senior Note Indenture and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Senior 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 Notes have
not been registered under the Securities Act, and that the Senior 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 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 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 Note or beneficial interest in a Global Senior 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 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 Notes
purchased by us will bear a legend to the foregoing effect. We further
understand that any subsequent transfer by us of the Senior 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 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 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 SENIOR SUBSIDIARY GUARANTEE
For value received, each Senior Note Guarantor (which term includes
any successor Person under the Senior Note Indenture) has, jointly and
severally, unconditionally guaranteed, to the extent set forth in the Senior
Note Indenture and subject to the provisions in the Senior Note Indenture dated
as of May 18, 1998 (the "Senior Note Indenture") among P&L Coal Holdings
Corporation, the Senior Note Guarantors listed on Schedule I thereto and State
Street Bank and Trust Company, as Senior Note Trustee (the "Senior Note
Trustee"), (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Senior Notes (as defined in the Senior 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 Note Trustee all
in accordance with the terms of the Senior Note Indenture and (b) in case of any
extension of time of payment or renewal of any Senior 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 Note
Guarantors to the Holders of Senior Notes and to the Senior Note Trustee
pursuant to the Senior Subsidiary Guarantee and the Senior Note Indenture are
expressly set forth in Article 10 of the Senior Note Indenture and reference is
hereby made to the Senior Note Indenture for the precise terms of the Senior
Subsidiary Guarantee. Each Holder of a Senior Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Senior 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 Note Indenture and (c) appoints the Senior Note Trustee attorney-in-fact
of such Holder for such purpose; provided, however, that the Indebtedness
evidenced by this Senior Subsidiary Guarantee shall cease to be so subordinated
and subject in right of payment upon any defeasance of this Senior Note in
accordance with the provisions of the Senior Note Indenture.
[Name of Senior Note Guarantor(s)]
By:
---------------------------------
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL SENIOR NOTE INDENTURE
TO BE DELIVERED BY SUBSEQUENT SENIOR NOTE GUARANTORS
Supplemental Senior Note Indenture (this "Supplemental Senior 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 Note Guarantors (as defined in the Senior Note Indenture
referred to herein) and State Street Bank and Trust Company, as Senior Note
Trustee under the Senior Note Indenture referred to below (the "Senior Note
Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Senior Note Trustee an Senior Note Indenture (the "Senior Note Indenture"),
dated as of May 18, 1998 providing for the issuance of an aggregate principal
amount of up to $550.0 million of 8-7/8% Senior Notes due 2008 (the "Senior
Notes");
WHEREAS, the Senior Note Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Senior Note Trustee a supplemental Senior Note Indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's
Obligations under the Senior Notes and the Senior Note Indenture on the terms
and conditions set forth herein (the "Senior Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Note Indenture, the
Senior Note Trustee is authorized to execute and deliver this Supplemental
Senior 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 Note Trustee mutually covenant and agree
for the equal and ratable benefit of the Holders of the Senior Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Note
Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Senior Note Guarantors named in the Senior Note
Indenture, to jointly and severally Guarantee to each Holder of
a Senior Note authenticated and delivered by the Senior Note
Trustee and to the Senior Note Trustee and its successors and
assigns, irrespective of the validity and enforceability of the
Senior Note Indenture, the Senior Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest on the Senior 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
Notes, if any, if lawful, and all other obligations of
the Company to the Holders or the Senior 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 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 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
Notes or the Senior Note Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the
Senior 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 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 Senior Subsidiary Guarantee shall not be discharged except
by complete performance of the obligations contained in the
Senior Notes and the Senior Note Indenture.
(e) If any Holder or the Senior Note Trustee is required by any
court or otherwise to return to the Company, the Senior Note
Guarantors, or any custodian, Senior Note Trustee, liquidator
or other similar official acting in relation to either the
Company or the Senior Note Guarantors, any amount paid by
either to the Senior Note Trustee or such Holder, this Senior
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.
(g) As between the Senior Note Guarantors, on the one hand, and the
Holders and the Senior 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 Note
Indenture for the purposes of this Senior 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 Note Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the
Senior Note Guarantors for the purpose of this Senior
Subsidiary Guarantee.
F-2
(h) The Senior Note Guarantors shall have the right to seek
contribution from any non-paying Senior Note Guarantor so long
as the exercise of such right does not impair the rights of the
Holders under the Senior Subsidiary Guarantee.
(i) Pursuant to Section 10.04 of the Senior 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 Note
Guarantor in respect of the obligations of such other Senior
Note Guarantor under Article 10 of the Senior Note Indenture
shall result in the obligations of such Senior Note Guarantor
under its Senior Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees
that the Senior Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Senior 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 Note Guarantor is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Senior Note Guarantor unless:
(i) subject to Section 10.04 of the Senior Note Indenture, the
Person formed by or surviving any such consolidation or merger
(if other than a Senior Note Guarantor or the Company)
unconditionally assumes all the obligations of such Senior Note
Guarantor, pursuant to a supplemental Senior Note Indenture in
form and substance reasonably satisfactory to the Senior Note
Trustee, under the Senior Notes, the Senior Note Indenture and
the Senior Subsidiary Guarantee on the terms set forth herein
or therein; and
(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 Note Indenture, executed and delivered to the Senior Note
Trustee and satisfactory in form to the Senior Note Trustee, of the
Senior Subsidiary Guarantee endorsed upon the Senior Notes and the
due and punctual performance of all of the covenants and conditions
of the Senior Note Indenture to be performed by the Senior Note
Guarantor, such successor corporation shall succeed to and be
substituted for the Senior Note Guarantor with the same effect as if
it had been named herein as a Senior Note Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the Senior
Subsidiary Guarantees to be endorsed upon all of the Senior Notes
issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Senior Note Trustee. All the Senior
Subsidiary Guarantees so issued shall in all respects have the same
legal rank and benefit under the Senior Note Indenture as the Senior
Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of the Senior Note Indenture as though all of such
Senior Subsidiary Guarantees had been issued at the date of the
execution hereof.
F-3
(c) Except as set forth in Articles 4 and 5 of the Senior Note
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in
the Senior Note Indenture or in any of the Senior Notes shall prevent any
consolidation or merger of a Senior Note Guarantor with or into the Company or
another Senior Note Guarantor, or shall prevent any sale or conveyance of the
property of a Senior Note Guarantor as an entirety or substantially as an
entirety to the Company or another Senior Note Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Senior Note Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the capital stock
of any Senior Note Guarantor, then such Senior 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 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 Note Guarantor) will be released and relieved of any
obligations under its Senior Subsidiary Guarantee; provided that the
Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Senior Note
Indenture, including without limitation Section 4.10 of the Senior
Note Indenture. Upon delivery by the Company to the Senior 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 Note Indenture,
including without limitation Section 4.10 of the Senior Note
Indenture, the Senior Note Trustee shall execute any documents
reasonably required in order to evidence the release of any Senior
Note Guarantor from its obligations under its Senior Subsidiary
Guarantee.
(b) Any Senior Note Guarantor not released from its obligations under its
Senior Subsidiary Guarantee shall remain liable for the full amount
of principal of and interest on the Senior Notes and for the other
obligations of any Senior Note Guarantor under the Senior Note
Indenture as provided in Article 10 of the Senior 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 Notes, any Senior
Subsidiary Guarantees, the Senior Note Indenture or this Supplemental Senior
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 Notes by accepting a
Senior Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Senior 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 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 Note Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
F-4
9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. The Senior Note Trustee. The Senior Note Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Senior 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 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 NOTE GUARANTORS]
By:
--------------------------------
Name:
Title:
State Street Bank and Trust Company
as Senior Note Trustee
By:
--------------------------------
Name:
Title:
F-6
Schedule I
SCHEDULE OF SENIOR NOTE GUARANTORS
The following schedule lists each Senior Note Guarantor under the
Senior 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.
