1
EXHIBIT 4.1
BUCYRUS INTERNATIONAL, INC.,
as Company,
THE GUARANTORS party hereto
and
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
9-3/4% Senior Notes Due 2007
____________________
INDENTURE
Dated as of September 24, 1997
____________________
2
CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.9; 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
312(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5; 11.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6; 4.7; 11.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 11.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . 11.6
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.3. Incorporation by Reference of Trust
Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.4. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 2
THE SECURITIES
SECTION 2.1. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.4. Paying Agent To Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.5. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.6. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.7. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.8. Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.9. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.13. Restrictive Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.14. Special Transfer Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 3
REDEMPTION
SECTION 3.1. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.2. Selection of Securities To Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.3. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.4. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.6. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 4
COVENANTS
SECTION 4.1. Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.2. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.3. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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SECTION 4.4. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.5. Future Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.6. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.7. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.8. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.9. Limitation on Incurrence of Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.10. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.11. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 4.12. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.13. Limitation on Sales of Assets and
Subsidiary Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.14. Limitation on Dividend and Other
Restrictions Affecting Restricted
Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.15. Limitation on Issuance or Sale of Capital
Stock of Wholly Owned Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 4.16. Limitation on Sale and Leaseback
Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.1. Merger, Consolidation and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.4. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.5. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.6. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.7. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
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SECTION 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.6. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.9. Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 7.11. Preferential Collection of Claims Against
Bucyrus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities;
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.2. Conditions to Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.3. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.4. Repayment to Bucyrus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.5. Indemnity for Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.6. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.1. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 9.2. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 9.3. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.4. Revocation and Effect of Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.5. Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.6. Trustee to Sign Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE 10
GUARANTEES
SECTION 10.1. Guarantees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.2. Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 10.3. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 10.4. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 10.5. Modification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 10.6. Release of Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 10.7. Execution of Supplemental Indenture for
Future Subsidiary Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.3. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.4. Certificate and Opinion as to Conditions
Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.5. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.6. When Securities Disregarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.8. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.9. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.10. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11.12. Multiple Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11.13. Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11.14. Severability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S-1
Exhibit A - Form of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Exchange Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Regulation S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E - Form of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
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7
INDENTURE dated as of September 24, 1997, among BUCYRUS
INTERNATIONAL, INC., a Delaware corporation ("Bucyrus" or the "Company"),
certain of Bucyrus' subsidiaries party hereto (each a "Guarantor" and,
collectively, the "Guarantors") and XXXXXX TRUST AND SAVINGS BANK, an Illinois
banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of Bucyrus' 9-3/4%
Senior Notes Due 2007:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Additional Assets" means (i) any property or assets (other
than Indebtedness and Capital Stock) in a Related Business; or (ii) the Capital
Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition (including by merger, consolidation, combination or otherwise) of
such Capital Stock by Bucyrus or another Restricted Subsidiary; provided,
however, that any such Restricted Subsidiary is primarily engaged in a Related
Business.
"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 the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Sections 4.10, 4.12 and 4.13 only, "Affiliate"
shall also mean any beneficial owner of Capital Stock representing 10% or more
of the total voting power of the Voting Stock (on a fully diluted basis) of
Bucyrus or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"AIP" means American Industrial Partners Capital Fund II,
L.P., a Delaware limited partnership, and its successors.
"AIPAC" means American Industrial Partners Acquisition
Company, LLC, a Delaware limited liability company, and its successors.
8
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"AIP Agreement" means the Agreement and Plan of Merger dated
as of August 21, 1997 among Bucyrus, BAC and AIPAC.
"AIP Bridge Loan" means a loan to BAC from, or arranged by,
AIP or its Affiliates; provided, however, that (i) the proceeds thereof are
used by BAC solely to purchase shares of common stock of Bucyrus in the AIP
Tender Offer and (ii) the rate of interest thereon shall not exceed 6.0% per
annum.
"AIP Equity Contribution" means the contribution by AIP to BAC
of $143.0 million in cash as common equity in connection with the AIP Tender
Offer.
"AIP Merger" means the merger of BAC with and into Bucyrus
pursuant to the AIP Agreement.
"AIP Tender Offer" means the offer by BAC that commenced
August 26, 1997 to purchase for cash 100% of the common stock of Bucyrus at a
price of $18.00 per share.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
Bucyrus or any Restricted Subsidiary, including any disposition by means of a
merger, consolidation or similar transaction (each referred to for the purposes
of this definition as a "disposition"), of (i) any shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares and, to the
extent required by local ownership laws in foreign countries, shares owned by
foreign shareholders), (ii) all or substantially all the assets of any
division, business segment or comparable line of business of Bucyrus or any
Restricted Subsidiary or (iii) any other assets of Bucyrus or any Restricted
Subsidiary outside of the ordinary course of business of Bucyrus or such
Restricted Subsidiary. Notwithstanding the foregoing, the term "Asset
Disposition" shall not include (x) a disposition by a Restricted Subsidiary to
Bucyrus or by Bucyrus or a Restricted Subsidiary to a Wholly Owned Subsidiary,
(y) for purposes of Section 4.13, a disposition (a) that constitutes a
Permitted Investment or a Restricted Payment permitted by Section 4.10 or (b)
consummated in compliance with Section 5.1 and (z) a disposition of assets
having a fair market value and a sale price of less than $500,000.
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, as of the time of determination, the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included
9
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in such Sale and Leaseback Transaction (including any period for which such
lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"BAC" means Bucyrus Acquisition Corp., a Delaware corporation,
and its successors.
"Bank Credit Facility" means the Credit Agreement dated as of
September 24, 1997 among Bucyrus, Bank One, Wisconsin, and the other lenders
named therein, as the same may be amended, supplemented, amended and restated,
extended or Refinanced from time to time, including pursuant to term loan and
revolving credit facilities (except to the extent that any such amendment,
supplement, amendment and restatement, extension or Refinancing would be
prohibited by the terms of this Indenture), including (i) any related notes,
letters of credit, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as refinanced from time to
time, and (ii) any notes, guarantees, collateral documents, instruments and
agreements executed in connection with any such refinancing.
"Basket" has the meaning set forth in Section 4.10(a).
"Board of Directors" means the Board of Directors of Bucyrus
or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" means an obligation that is
required to be classified and accounted for as a capital lease for financial
reporting purposes in accordance with GAAP. The amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP, and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations
10
-4-
or other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Change of Control" means the occurrence of any of the
following events:
(i) prior to a Public Equity Offering after the Issue
Date after which there is a Public Market, the Permitted Holders cease
to own, or to have the power to vote or direct the voting of, Voting
Stock representing a majority of the voting power of the total
outstanding Voting Stock of Bucyrus;
(ii) following a Public Equity Offering after the Issue
Date after which there is a Public Market, any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that for purposes of this clause such person or group shall be
deemed to have "beneficial ownership" of all securities that any such
person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly
or indirectly, of Voting Stock representing more than 35% of the
voting power of the total outstanding Voting Stock of Bucyrus;
provided, however, that such event shall not be deemed to be a Change
of Control so long as the Permitted Holders own Voting Stock
representing in the aggregate a greater percentage of the total voting
power of the Voting Stock of Bucyrus than such other person or group;
(iii) following a Public Equity Offering after the Issue
Date after which there is a Public Market, during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (together with any new directors
whose election to such Board of Directors or whose nomination for
election by the shareholders of Bucyrus was approved by a vote of 66
2/3% of the directors of Bucyrus then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors then in
office; or
(iv) the merger or consolidation of Bucyrus with or into
another Person or the merger of another Person with or into Bucyrus,
or the sale of all or substantially all the assets of Bucyrus and the
Restricted Subsidiaries, taken as a whole, to another Person (other
than a Person that is
11
-5-
controlled by the Permitted Holders), and, in the case of any such
merger or consolidation, the securities of Bucyrus that are
outstanding immediately prior to such transaction and which represent
100% of the aggregate voting power of the Voting Stock of Bucyrus are
changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of
the surviving corporation that represent immediately after such
transaction, at least a majority of the aggregate voting power of the
Voting Stock of the surviving corporation.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" or "SEC" means the Securities and Exchange
Commission.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA for the period of the
most recent four consecutive fiscal quarters for which financial statements are
available to (ii) Consolidated Fixed Charges for such four fiscal quarters;
provided, however, that (1) if Bucyrus or any Restricted Subsidiary has
Incurred any Indebtedness since the beginning of such period that remains
outstanding on such date of determination or if the transaction giving rise to
the need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, EBITDA and Consolidated Fixed Charges for such period
shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period (except that, in
the case of Indebtedness used to finance working capital needs incurred under a
revolving credit or similar arrangement, the amount thereof shall be deemed to
be the average daily balance of such Indebtedness during such
four-fiscal-quarter period), (2) if since the beginning of such period Bucyrus
or any Restricted Subsidiary shall have made any Asset Disposition, the EBITDA
for such period shall be reduced by an amount equal to the EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to the EBITDA (if
negative) directly attributable thereto for such period, and Consolidated Fixed
Charges for such period shall be reduced by an amount equal to the Consolidated
Fixed Charges directly attributable to any Indebtedness of Bucyrus or any
Restricted Subsidiary repaid,
00
-0-
xxxxxxxxxxx, defeased, assumed by a third person (to the extent Bucyrus and its
Restricted Subsidiaries are no longer liable for such Indebtedness) or
otherwise discharged with respect to Bucyrus and its continuing Restricted
Subsidiaries in connection with such Asset Disposition for such period (or, if
the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Fixed
Charges for such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent Bucyrus and its continuing Restricted
Subsidiaries are no longer liable for such Indebtedness after such sale), (3)
if since the beginning of such period Bucyrus shall have consummated a Public
Equity Offering following which there is a Public Market, Consolidated Fixed
Charges for such period shall be reduced by an amount equal to the Consolidated
Fixed Charges directly attributable to any Indebtedness of Bucyrus or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged
with respect to Bucyrus and its Restricted Subsidiaries in connection with such
Public Equity Offering for such period, (4) if since the beginning of such
period Bucyrus or any Restricted Subsidiary (by merger or otherwise) shall have
made an Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets, which acquisition
constitutes all or substantially all of an operating unit of a business,
including any such Investment or acquisition occurring in connection with a
transaction requiring a calculation to be made hereunder, EBITDA and
Consolidated Fixed Charges for such period shall be calculated after giving pro
forma effect thereto (including the Incurrence of any Indebtedness) as if such
Investment or acquisition occurred on the first day of such period and (5) if
since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into Bucyrus or any Restricted
Subsidiary since the beginning of such period) shall have made any Asset
Disposition, any Investment or acquisition of assets that would have required
an adjustment pursuant to clause (3) or (4) above if made by Bucyrus or a
Restricted Subsidiary during such period, EBITDA and Consolidated Fixed Charges
for such period shall be calculated after giving pro forma effect thereto as if
such Asset Disposition, Investment or acquisition occurred on the first day of
such period. For purposes of this definition, whenever pro forma effect is to
be given to an acquisition of assets, the amount of income, earnings or expense
relating thereto and the amount of Consolidated Fixed Charges associated with
any Indebtedness Incurred in connection therewith, the pro forma calculations
shall be prepared in accordance with Article II of Regulation S-X promulgated
by the Commission as determined in good faith by a responsible financial or
accounting Officer of Bucyrus. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest of such Indebtedness
shall be calculated as if the
13
-7-
rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable
to such Indebtedness if such Interest Rate Agreement has a remaining term in
excess of 12 months).
"Consolidated Fixed Charges" means, with respect to any
period, the sum (without duplication) of (i) the interest expense of Bucyrus
and the Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP consistently applied, including, without
limitation, (a) amortization of debt discount, (b) the net payments, if any,
under interest rate contracts (including amortization of discounts), (c) the
interest portion of any deferred payment obligation and (d) accrued interest,
plus (ii) the interest component of the Capital Lease Obligations paid or
accrued during such period, plus (iii) all interest capitalized during such
period, plus (iv) all dividends on Preferred Stock (other than to Bucyrus or a
Wholly Owned Subsidiary) paid, accrued, declared or accumulated during such
period.
"Consolidated Net Income (Loss)" means, for any period, the
net income (or loss) of Bucyrus and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP consistently
applied; provided, however, that there shall not be included in such
Consolidated Net Income: (i) any extraordinary gains (but not, other than for
purposes of calculating the Basket, losses) (less all fees and expenses
relating thereto); (ii) any net income or loss of any Person if such Person is
not a Restricted Subsidiary, except that, subject to the exclusion contained in
clause (iv) below, the equity of Bucyrus or any Restricted Subsidiary in the
net income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually distributed
by such Person during such period to Bucyrus or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations contained in
clause (iv) below); (iii) any net income (or loss) of any Person acquired by
Bucyrus or a Subsidiary in a pooling of interests transaction for any period
prior to the date of such acquisition; (iv) the net income of any Restricted
Subsidiary to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income to Bucyrus is not at
the time permitted, directly or indirectly, without prior approval (that has
not been obtained), pursuant to the terms of its charter or any agreement,
instrument and governmental regulation applicable to such Restricted Subsidiary
or its stockholders; (v) gain (but not loss) (less all fees and expenses
relating thereto) realized upon the sale or other disposition of
14
-8-
(x) any assets (including pursuant to Sale and Leaseback Transactions) which is
not sold or otherwise disposed of in the ordinary course of business or (y) any
Capital Stock of any Person; and (vi) the cumulative effect of a change in
accounting principles.
"Consolidated Net Worth" means with respect to any Person on
any date, the equity of the common and preferred stockholders of such Person
and its Restricted Subsidiaries as of such date, determined on a consolidated
basis in accordance with GAAP consistently applied, less any amount
attributable to Unrestricted Subsidiaries.
"Corporate Trust Office" means the office of the Trustee
located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. "Currency
Agreement" means, with respect to any Person, any foreign exchange contract,
currency swap agreement or other similar agreement to which such Person is a
party or a beneficiary.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, or (ii) is redeemable at the option of the holder
thereof, in whole or in part, in each case on or prior to the date that is one
year after the Maturity Date.
"EBITDA" for any period means the sum of Consolidated Net
Income for such period plus, without duplication, the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated Fixed
Charges, (ii) all income tax expense of Bucyrus, (iii) depreciation expense,
(iv) amortization expense, (v) all other non-cash items reducing such
Consolidated Net Income (excluding (x) any non-cash item to the extent it
represents an accrual of, or reserve for, cash disbursements to be made in any
subsequent period and (y) the amount attributable to minority interests) less
all non-cash items increasing Consolidated Net Income, and (vi) payments to
purchase, redeem or otherwise acquire or retire for value Capital Stock of
Bucyrus in connection with the AIP Merger pursuant to the AIP Agreement, in
each case for such period. Notwithstanding the foregoing, the
15
-9-
provision for taxes based on the income or profits of, and the depreciation and
amortization of, a Subsidiary of Bucyrus shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in the same proportion) that
the net income of such Subsidiary was included in calculating Consolidated Net
Income and only if a corresponding amount would be permitted at the date of
determination to be dividended or otherwise distributed to Bucyrus by such
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments and governmental
regulations applicable to such Subsidiary or its stockholders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means the 9-3/4% Senior Notes Due 2007,
Series B, to be issued in exchange for the Initial Securities pursuant to the
Registration Agreement.
"Foreign Subsidiary" means a Restricted Subsidiary that is
incorporated in a jurisdiction other than the United States or a state thereof
or the District of Columbia and with respect to which more than 80% of any of
its sales, earnings or assets (determined on a consolidated basis in accordance
with GAAP) are located in, generated from or derived from operations located in
territories outside the United States of America and jurisdictions outside the
United States of America.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board and (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation of such
Person (whether arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services, to take-or-pay
or to maintain financial statement conditions or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole
16
-10-
or in part); provided, however, that the term "guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "guarantee" used as a verb has a corresponding meaning. The term
"guarantor" shall mean any Person guaranteeing any obligation.
"Guarantor" means each Restricted Subsidiary designated as
such on the signature pages of this Indenture and any other Restricted
Subsidiary that has issued a guarantee of the Securities, in each case, until
such Restricted Subsidiary is released from its Guarantee.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, create, assume, guarantee, incur or
otherwise become liable for; provided, however, that any Indebtedness or
Capital Stock of a Person existing at the time such Person becomes a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Subsidiary at the time it becomes a Subsidiary; provided,
further, however, that in the case of a discount security, neither the accrual
of interest nor the accretion of original issue discount shall be considered an
Incurrence of Indebtedness. The term "Incurrence" when used as a noun shall
have a correlative meaning.
"Indebtedness" means, with respect to any Person, without
duplication, and whether or not contingent, (i) all indebtedness of such Person
for borrowed money or for the deferred purchase price of property or services
or which is evidenced by a note, bond, debenture or similar instrument, to the
extent it would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, (ii) all Capital Lease Obligations of such
Person, (iii) all obligations of such Person in respect of letters of credit or
bankers' acceptances issued or created for the account of such Person, (iv) all
obligations of such Person under Interest Rate Agreements or Currency
Agreements, (v) all Disqualified Stock issued by such Person and all preferred
stock issued by any Subsidiary of such Person, in each case, valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends thereon, and (vi) to the extent not otherwise
included, any Guarantee by such Person of any other Person's indebtedness or
other obligations described in clauses (i) through (v) above. "Indebtedness"
of Bucyrus and the Restricted
17
-11-
Subsidiaries shall not include current trade payables incurred in the ordinary
course of business and payable in accordance with customary practices, and
non-interest bearing installment obligations and accrued liabilities incurred
in the ordinary course of business. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by the fair market
value of, such Disqualified Stock, such fair market value is to be determined
in good faith by the board of directors of the issuer of such Disqualified
Stock. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations as described above at
such date; provided, however, that the amount outstanding at any time of any
Indebtedness issued with original issue discount shall be deemed to be the face
amount of such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at such time as determined in
conformity with GAAP.
"Indenture" means this Indenture as amended or supplemented
from time to time by one or more supplemental indentures entered into pursuant
to the applicable provisions hereof or otherwise in accordance with the terms
hereof.
"Independent Director" means a director of Bucyrus other than
a director (i) who (apart from being a director of Bucyrus or any Subsidiary)
is an employee, associate or Affiliate of Bucyrus or a Subsidiary or has held
any such position during the previous five years, or (ii) who has, or is a
director, employee, associate or Affiliate of another party who has, a material
direct or indirect pecuniary interest in the transaction in question.
"Initial Purchasers" means, collectively, Salomon Brothers
Inc, Xxxxxxxxx & Company, Inc. and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation.
"Initial Securities" means the 9-3/4% Senior Notes Due 2007 of
Bucyrus originally issued on the Issue Date.
"interest" means, with respect to the Securities, the sum of
any interest and any Liquidated Damages on the Securities.
18
-12-
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect Bucyrus or any Restricted Subsidiary against
fluctuations in interest rates.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of such
Person) or other extensions of credit (including by way of guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such Person. For purposes
of the definition of "Unrestricted Subsidiary," the definition of "Restricted
Payment" and Section 4.10, (i) "Investment" shall include the portion
(proportionate to Bucyrus' equity interest in such Subsidiary) of the fair
market value of the net assets of any Subsidiary of Bucyrus at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
Bucyrus shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary equal to an amount (if positive) equal to (x) Bucyrus'
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to Bucyrus' equity interest in such Subsidiary) of the
fair market value of the net assets of such Subsidiary at the time of such
redesignation; (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer; and (iii) an "Investment" shall be deemed to be made at the time that
the ownership or voting power of Bucyrus and the Restricted Subsidiaries in any
Restricted Subsidiary is reduced to below majority (but greater than zero) in
an amount equal to the fair market value of such former Restricted Subsidiary
at such time multiplied by the percentage ownership or voting power (whichever
is less) of Bucyrus and the Restricted Subsidiaries in such former Restricted
Subsidiary; provided, however, that in each case fair market value shall be
determined in good faith by the Board of Directors.
"Issue Date" means September 24, 1997.
"Leasing Program" means arrangements in existence from time to
time pursuant to which Bucyrus or a Restricted Subsidiary sells or leases
(including pursuant to Sale and Leaseback Transactions) equipment used in
large-scale surface mining operations manufactured and distributed by Bucyrus
or a Restricted Subsidiary in the ordinary course of its business.
19
-13-
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York.
"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 any asset and any filing of, or agreement to give, any
financing statement under the Uniform Commercial Code or equivalent statutes)
of any jurisdiction other than to evidence a lease.
"Liquidated Damages" has the meaning set forth in the
Registration Agreement.
"Management Agreement" means the Management Agreement to be
entered into on or after the consummation of the AIP Tender Offer between
Bucyrus and AIP, as such agreement may be amended or supplemented from time to
time; provided, however, that all obligations of Bucyrus and its Subsidiaries
under the Management Agreement shall be subordinated to their obligations under
this Indenture, the Securities and the Guarantees.
"Xxxxxx Acquisition" means the acquisition on August 26, 1997
by Bucyrus of certain assets and liabilities of The Xxxxxx Power Shovel Company
and of certain Subsidiaries and divisions of Global Industrial Technologies,
Inc. that represent its surface mining equipment business in Australia, Canada
and South Africa.
"Maturity Date" means September 15, 2007.
"Net Available Cash" from an Asset Disposition means the
aggregate cash proceeds received by such Person and/or its Affiliates in
respect of such Asset Disposition, which amount is equal to the excess, if any,
of (i) the cash received by such Person and/or its Affiliates (including any
cash payments received by way of deferred payment pursuant to, or monetization
of, a note or installment receivable or otherwise, but only as and when
received) in connection with such Asset Disposition, over (ii) the sum of (a)
the amount of any Indebtedness that is secured by such asset and which is
required to be repaid by such person in connection with such Asset Disposition,
plus (b) all fees, commissions, and other expenses incurred by such Person in
connection with such Asset Disposition, plus (c) provision for taxes, including
income taxes, attributable to the Asset Disposition or attributable to required
prepayments or repayments
20
-14-
of Indebtedness with the proceeds of such Asset Disposition, plus (d) a
reasonable reserve for the after-tax cost of any indemnification payments
(fixed or contingent) attributable to seller's indemnities to purchaser in
respect of such Asset Disposition undertaken by Bucyrus or any of its
Restricted Subsidiaries in connection with such Asset Disposition, plus (e) if
such Person is a Restricted Subsidiary, any dividends or distributions payable
to holders of minority interests in such Restricted Subsidiary from the
proceeds of such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale, net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a direct result thereof.
"Non-U.S. Person" means a person who is not a U.S. Person, as
defined in Regulation S.
"Obligations" means all present and future obligations for
principal, premium, interest (including, without limitation, any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law), penalties, fees,
indemnifications, reimbursements (including, without limitation, all
reimbursement and other obligation pursuant to any letters of credit, bankers
acceptances or similar instruments or documents), damages and other liabilities
payable under the documentation at any time governing any indebtedness.
"Officer" means the Chairman of the Board, any Vice Chairman,
the Chief Executive Officer, the Chief Financial Officer, the President, any
Executive Vice President, Vice President, the Secretary or any Assistant
Secretary of Bucyrus.
"Officers' Certificate" means with respect to any Person a
certificate signed by two Officers, one of which is the Chairman of the Board,
the Chief Executive Officer, the Chief Financial Officer, the President or any
Executive Vice President.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to Bucyrus or the Trustee.
"Other Qualified Securities" means any outstanding senior
indebtedness of Bucyrus issued pursuant to an indenture
21
-15-
having a provision substantially similar to the Excess Proceeds Offer provision
contained in Section 4.13.
"Permitted Holders" means American Industrial Partners Capital
Fund II, L.P. or any Affiliate thereof.
"Permitted Investment" means an Investment by Bucyrus or any
Restricted Subsidiary in (i) a Guarantor or a Person that will, upon the making
of such Investment, become a Guarantor; provided, however, that the primary
business of such Guarantor is a Related Business; (ii) Temporary Cash
Investments; (iii) receivables owing to Bucyrus or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iv) loans or advances
to employees of Bucyrus or any Restricted Subsidiary that are made in the
ordinary course of business consistent with past practices of Bucyrus or such
Restricted Subsidiary in an aggregate amount not to exceed $2.5 million
outstanding at any time; (v) any Person to the extent such Investment
represents the non-cash portion of the consideration received for an Asset
Disposition as permitted pursuant to Section 4.13; (vi) Investments in Foreign
Subsidiaries in an aggregate amount not to exceed $15.0 million outstanding at
any time; (vii) Investments in Foreign Subsidiaries Incurred to effect the
Xxxxxx Acquisition; (viii) Investments in Foreign Subsidiaries for the purposes
of financing inventory or accounts receivable at such Foreign Subsidiaries in
the ordinary course of business; and (ix) customers of Bucyrus or any
Restricted Subsidiary made in the form of loans pursuant to the Leasing
Program, to the extent permitted under Section 4.9(b)(9).
"Permitted Liens" means (i) Liens securing Indebtedness
Incurred under Section 4.9(b)(1), (7), (8), (9) or (10) on property or assets
of Bucyrus and the Restricted Subsidiaries (other than for purposes of clause
(1) only, any Liens on real property); (ii) Liens in favor of Bucyrus or any
Guarantor; (iii) pledges or deposits by such Person under workmen's
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or deposits
to secure public or statutory obligations of such Person or deposits of cash or
United States government bonds to secure surety or appeal bonds to which such
Person is a party, or deposits as security for contested taxes or import duties
or for the payment of rent or deposits as security for the payment of
insurance-related obligations (including, but not limited to, in respect of
deductibles, self-insured retention amounts and premiums and adjustments
thereto), in each case incurred in the ordinary course of business; (iv) Liens
imposed
22
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by law, such as carriers', warehousemen's, mechanics', landlords',
materialmen's, employees', laborers', employers', suppliers', banks',
repairmen's and other like Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings, or other Liens arising out
of any judgment, award, decree or order of any court or other governmental
authority against such Person with respect to which such Person shall then be
prosecuting an appeal or other proceedings for review or the period within
which such proceedings may be instituted shall not have expired; (v) Liens for
taxes not yet due or payable or subject to penalties for non-payment and that
are being contested in good faith by appropriate proceedings; (vi) Liens in
favor of issuers of surety, performance, judgment, appeal and like bonds or
letters of credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; (vii) Liens existing on the
Issue Date; (viii) Liens on property or shares of stock of a Person at the time
such Person becomes a Subsidiary of Bucyrus; provided, however, that such Lien
was not incurred in anticipation of or in connection with the transaction or
series of related transactions pursuant to which such Person became a
Subsidiary; (ix) Liens securing Purchase Money Indebtedness; (x) Liens securing
an Interest Rate Agreement or Currency Agreement so long as the related
Indebtedness is permitted to be Incurred under this Indenture; (xi) zoning
restrictions, easements, rights-of-way, restrictions on the use of property,
other similar encumbrances incurred in the ordinary course of business and
minor irregularities of title that do not materially interfere with the
ordinary conduct of the business of Bucyrus and its Restricted Subsidiaries
taken as a whole; (xii) pledges of or Liens on raw materials or on manufactured
products as security for any drafts or bills of exchange drawn in connection
with the importation of such raw materials or manufactured products; (xiii)
Liens on property or assets of Bucyrus and the Restricted Subsidiaries securing
obligations of Bucyrus or a Restricted Subsidiary under operating leases so
long as the lessor is a financial institution party to the Bank Credit
Facility, or an Affiliate of such financial institution, and the aggregate
amount so secured, together with the principal amount of Indebtedness
outstanding under the Bank Credit Facility, does not exceed the limit set forth
in the proviso to Section 4.9(b)(1) and (xiv) Liens securing Refinancing
Indebtedness permitted to be Incurred under the Indenture; provided, however,
that such Liens extend only to the assets securing the Indebtedness being
Refinanced.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
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"Preferred Stock," as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Private Placement Legend" means the legend initially set
forth on the securities in the form set forth in Section 2.13.
"Public Equity Offering" means an underwritten primary public
offering of common stock of Bucyrus pursuant to an effective registration
statement under the Securities Act (other than any registration statement filed
on Form S-8 or similar form).
"Public Market" means any time after (i) a Public Equity
Offering has been consummated and (ii) at least 10% of the total issued and
outstanding common stock of Bucyrus has been distributed by means of an
effective registration statement under the Securities Act or sales pursuant to
Rule 144 under the Securities Act.
"Purchase Money Indebtedness" means Indebtedness (i)
consisting of the deferred purchase price of property, conditional sale
obligations, obligations under any title retention agreement, other purchase
money obligations and obligations in respect of industrial revenue bonds or
similar Indebtedness, in each case where the maturity of such Indebtedness does
not exceed the anticipated useful life of the asset being financed, and (ii)
Incurred to finance the acquisition by Bucyrus or a Restricted Subsidiary of
such asset, including additions and improvements; provided, however, that any
Lien arising in connection with any such Indebtedness shall be limited to the
specified asset being financed or, in the case of real property or fixtures,
including additions and improvements, the real property on which such asset is
attached; provided, further, however, that such Indebtedness is Incurred within
90 days after such acquisition of such asset by Bucyrus or Restricted
Subsidiary.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
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"Qualified Stock" means any Capital Stock of Bucyrus other than
Disqualified Stock.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, increase, replace, renew, refund, repay, prepay, redeem,
defease or retire, or to issue other Indebtedness in exchange or replacement
for, such Indebtedness. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of Bucyrus or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture; provided, however, that (i)
such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced, (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced, and (iv) in the case
of any Indebtedness that is subordinated to the Securities, such Refinancing
Indebtedness is subordinated to at least the same extent; provided, further,
however, that Refinancing Indebtedness shall not include Indebtedness of a
Subsidiary that Refinances Indebtedness of Bucyrus.
"Registration Agreement" means the Registration Agreement
dated the Issue Date among Bucyrus, the Guarantors party thereto and the
Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means the manufacture, distribution and
sale of excavation equipment, or components for such equipment, used in
large-scale surface mining operations and activities reasonably related
thereto, including, without limitation, aftermarket parts sales and services,
and such other businesses as the Board of Directors determines in good faith
are reasonably related to the foregoing.
"Responsible Officer" means, when used with respect to the
Trustee, any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant secretary or any other officer
of the Trustee to whom any
25
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corporate trust matter is referred because of his or her knowledge or
familiarity with the particular subject.
"Restricted Payment" means (i) any dividend or other
distribution declared or paid on any Capital Stock of Bucyrus or any Restricted
Subsidiary (other than dividends or distributions payable solely in Qualified
Stock or dividends or distributions payable to Bucyrus or any Wholly Owned
Subsidiary); (ii) any payment to purchase, redeem or otherwise acquire or
retire for value (other than in connection with the AIP Tender Offer and the
AIP Merger pursuant to the AIP Agreement) any Capital Stock of Bucyrus or any
Restricted Subsidiary or other Affiliate of Bucyrus (other than any Capital
Stock owned by Bucyrus or any Wholly Owned Subsidiary); provided, however, that
payments to purchase, redeem or otherwise acquire or retire for value Capital
Stock of Bucyrus in connection with the AIP Merger pursuant to the AIP
Agreement shall not be deemed a Restricted Payment so long as such payments in
excess of $54.0 million are paid with cash existing at BAC prior to the AIP
Merger; (iii) any payment to purchase, redeem, defease or otherwise acquire or
retire for value any Indebtedness that is subordinated in right of payment to
the Securities or the Guarantees other than a purchase, redemption, defeasance
or other acquisition or retirement for value that is paid for with the proceeds
of Refinancing Indebtedness that is permitted under Section 4.9; (iv) the
making of an Investment (other than a Permitted Investment), including any
Investment in an Unrestricted Subsidiary (including by the designation of a
Subsidiary of Bucyrus as an Unrestricted Subsidiary); or (v) payment of any
interest accrued on the AIP Bridge Loan.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel
with respect to whether any Security constitutes a SecurityRestricted Security.
"Restricted Subsidiary" means any Subsidiary of Bucyrus that is
not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means an arrangement relating
to property now owned or hereafter acquired whereby Bucyrus or a Restricted
Subsidiary transfers such property to a Person and Bucyrus or a Restricted
Subsidiary leases it from such Person.
"Securities" shall mean the Initial Securities and the
Exchange Securities.
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"Significant Restricted Subsidiary" means (i) any Restricted
Subsidiary that would be a "Significant Subsidiary" of Bucyrus within the
meaning of Rule 1-02 under Regulation S-X promulgated by the SEC or (ii) any
group of Restricted Subsidiaries that together would constitute a Significant
Restricted Subsidiary.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of Bucyrus
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement to that effect. "Subordinated Obligation" of any Guarantor
has a correlative meaning.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations guaranteed by the United States of America or any
agency thereof, (ii) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States, and which bank or trust company has
capital, surplus and undivided profits aggregating in excess of $50,000,000 (or
the foreign currency equivalent thereof) and has outstanding debt which is
rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act) or any money-market fund sponsored by a registered
broker dealer or mutual fund distributor, (iii) repurchase obligations with a
term of not more than 30 days for underlying securities of the types described
in clause (i) above entered into with a bank meeting the
27
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qualifications described in clause (ii) above, (iv) investments in commercial
paper, maturing not more than 90 days after the date of acquisition, issued by
a corporation (other than an Affiliate of Bucyrus) organized and in existence
under the laws of the United States of America, any State thereof or the
District of Columbia or any foreign country recognized by the United States of
America with a rating at the time as of which any investment therein is made of
"P-1" (or higher) according to Xxxxx'x Investors Service, Inc. or "A-1" (or
higher) according to Standard and Poor's Ratings Group, and (v) investments in
securities with maturities of six months or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing authority
thereof, and rated at least "A" by Standard & Poor's Ratings Group or "A" by
Xxxxx'x Investors Service, Inc. "TIA" means the Trust Indenture Act of 1939
(15 U.S.C. Section Section 77aaa-77bbbb) as in effect on the date of this
Indenture, except as provided in Section 9.3.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of Bucyrus
that at the time of determination shall have been designated an Unrestricted
Subsidiary by the Board of Directors and (ii) any Subsidiary of an Unrestricted
Subsidiary. Western Gear Machinery Co. and BWC Gear, Inc. have been designated
Unrestricted Subsidiaries as of the Issue Date.
The Board of Directors may designate any Subsidiary of Bucyrus
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital
Stock or Indebtedness of, or holds any Lien on any property of, Bucyrus or any
other Subsidiary of Bucyrus that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that (i) no Default shall have occurred and be
continuing, (ii) Bucyrus could incur $1.00 of additional Indebtedness under
Section 4.9(a) and (iii) either (x) the Subsidiary to be so designated has
total assets of $1,000 or less or (y) if such Subsidiary has assets greater
than $1,000, such designation would be permitted under Section 4.10 (treating
the fair market value of Bucyrus' proportionate interest in the
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net worth of such Subsidiary on such date calculated in accordance with GAAP as
the amount of the Investment).
The Board of Directors may redesignate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that (i) no
Default shall have occurred and be continuing and (ii) Indebtedness of such
Unrestricted Subsidiary and all Liens on any asset of such Unrestricted
Subsidiary outstanding immediately following such redesignation would, if
Incurred at such time, be permitted to be Incurred under this Indenture.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned
by Bucyrus and/or one or more Wholly Owned Subsidiaries.
SECTION 1.2. Other Definitions.
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.12
"Bankruptcy Law" 6.1
"Basket" 4.10(a)
"covenant defeasance option" 8.1(b)
"Custodian" 6.1
"defeasance trust" 8.2
"Event of Default" 6.1
"Excess Proceeds" 4.13(a)
"Excess Proceeds Offer" 4.13(a)
"Excess Proceeds Offer Amount" 4.13(c)
"Excess Proceeds Offer Period" 4.13(c)
"Global Securities" 2.1(b)
"Guaranteed Obligations" 10.1
"Guarantees" 4.5
"legal defeasance option" 8.1(b)
"Participants" 2.6
"Paying Agent" 2.3
"Payment Default" 6.1
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Term Defined in Section
---- ------------------
"Permitted Indebtedness" 4.9(b)
"Physical Securities" 2.1(b)
"Private Placement Legend" 2.13
"Purchase Date" 4.13(b)
"Registrar" 2.3
"Required Filing Dates" 4.6
"Securities Register" 2.3
"Successor Company" 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which
are incorporated by reference in and made a part of this Indenture. The
following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the Securities means Bucyrus and any other obligor
on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.4. 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) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
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(6) the principal amount of any non-interest-bearing or
other discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of Bucyrus dated such date prepared in
accordance with GAAP;
(7) all references to $, US$, dollars or United States
dollars shall refer to the lawful currency of the United States; and
(8) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.1. Form and Dating.
(a) The Initial Securities and the Trustee's certificate
of authentication relating thereto shall be substantially in the form of
Exhibit A hereto. The Exchange Securities and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of Exhibit B
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rules, agreements to which Bucyrus is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to Bucyrus). Each Security shall be dated the date of its
authentication. If required, the Securities may bear the appropriate legend
regarding any original issue discount for federal income tax purposes. Each
Security shall have an executed Guarantee from each of the Guarantors.
The terms and provisions contained in the Securities, annexed
hereto as Exhibits A and B, shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, Bucyrus, the Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
(b) Global Securities. The Securities offered and sold
in reliance on Rule 144A and Securities offered and sold in reliance on
Regulation S shall be issued initially in the form of one or more permanent
Global Securities ("Global Securities") in definitive, fully registered form
without interest coupons, in substantially the form of Exhibit A, which shall
be deposited on behalf of the purchasers of the Securities represented thereby
with the Trustee, at the Trustee's office in New York City, as custodian for
the Depository, and registered in the name of the Depository or a nominee of
the Depository, duly executed by
31
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Bucyrus (and having an executed Guarantee endorsed thereon) and authenticated
by the Trustee as hereinafter provided and shall bear the legend set forth in
Section 2.13. The aggregate principal amount of the Global Securities may from
time to time be increased or decreased by adjustments made on the records of
the Trustee and the Depository or its nominee in the limited circumstances
hereinafter provided.
Securities issued in exchange for interests in Global
Securities pursuant to Section 2.6 may be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth
in Exhibit A (the "Physical Securities").
SECTION 2.2. Execution and Authentication. An Officer of
Bucyrus and each Guarantor shall sign the Securities and the Guarantees,
respectively, by manual or facsimile signature. If an Officer whose signature
is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless. A
Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. The Trustee shall authenticate and make available for
delivery (i) Initial Securities for original issue in an aggregate principal
amount of $150,000,000 and (ii) Exchange Securities from time to time for issue
only in exchange for a like principal amount of Initial Securities, in each
case, upon a written order of Bucyrus signed by an Officer of Bucyrus. Such
order shall specify the amount of the Securities to be authenticated and the
date on which the Securities are to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $150,000,000 except
as provided in Section 2.7. The Trustee may appoint an authenticating agent
acceptable to Bucyrus to authenticate the Securities, upon the consent of
Bucyrus to such appointment. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
any Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.3. Registrar and Paying Agent. Bucyrus shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar,
acting on behalf of and as agent for Bucyrus, shall keep a register (the
"Securities Register") of the Securities and of their transfer and
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exchange. Bucyrus may have one or more co-registrars and one or more
additional paying agents.
The term "Paying Agent" includes any additional paying agent.
Bucyrus shall enter into an appropriate agency agreement with any Registrar,
Paying Agent or co-registrar not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. Bucyrus shall notify the Trustee
of the name and address of any such agent. If Bucyrus fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.7. Bucyrus or a
Subsidiary thereof Neither the Company nor any of its Affiliates may act as
Paying Agent, Registrar, co-Registrar or transfer agent.
Bucyrus initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities, until such time as the Trustee has
resigned or a successor has been appointed. Any of the Registrar, the Paying
Agent or any other agent may resign upon 30 days' notice to Bucyrus.
SECTION 2.4. Paying Agent To Hold Money in Trust. On or
prior to each due date of the principal and interest on any Security, Bucyrus
shall deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. Bucyrus shall require each Paying Agent (other
than the Trustee) to agree in writing that the Paying Agent shall hold in trust
for the benefit of Securityholders or the Trustee all money held by the Paying
Agent for the payment of principal of or interest on the Securities and shall
notify the Trustee of any default by Bucyrus in making any such payment. If
Bucyrus or a Subsidiary acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. Bucyrus at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.5. Holder Lists. The 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 Holders. If the Trustee is not the
Registrar, Bucyrus shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders;
provided, however, that as long as the Trustee is the Registrar, no such list
need be furnished.
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SECTION 2.6. Transfer and Exchange. The Securities shall
be issued in registered form and shall be transferable only upon the surrender
of a Security for registration of transfer. When a Security is presented to
the Registrar or a co-registrar with a request to register a transfer, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Registrar shall record
in the Securities Register the transfer as requested if the requirements of
Section 8-401(1) of the Uniform Commercial Code are met, and thereupon one or
more new Securities in the same aggregate principal amount shall be issued to
the designated assignee or transferee and the old Security will be returned to
Bucyrus. When Securities are presented to the Registrar or a co- registrar
with a request to exchange them for an equal principal amount of Securities of
other denominations, the Registrar shall make the exchange as requested, in the
same manner, if the same requirements are met. To permit registration of
transfers and exchanges, Bucyrus shall execute and the Trustee shall
authenticate Securities and each of the Guarantors shall execute a Guarantee
thereon at the Registrar's or co- registrar's request. Bucyrus may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges in connection with any transfer or exchange pursuant to this Section.
Bucyrus shall not be required to make and the Registrar need not register
transfers or exchanges of Securities selected for redemption (except, in the
case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment date.
Prior to the due presentation for registration of transfer of
any Security, Bucyrus, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of
Bucyrus, the Trustee, the Paying Agent, the Registrar or any co-registrar shall
be affected by notice to the contrary.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture will evidence the same debt and will be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
With respect to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall (i) be registered in the name of the Depository
designated for such Global Security or a nominee
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thereof, (ii) be deposited with such Depository or a nominee thereof
or custodian therefor, (iii) bear legends as set forth in Section 2.13
and (iv) constitute a single Security for all purposes of this
Indenture.
(2) Transfers of a Global Security shall be limited to
transfers in whole but not in part to the Depository, its successors
or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred or exchanged for Physical
Securities in accordance with the rules and procedures of the
Depository and the provisions of Section 2.14. In addition, a Global
Security is exchangeable for certificated Securities if (i) the
Depository notifies Bucyrus that it is unwilling or unable to continue
as a Depository for such Global Security or if at any time the
Depository ceases to be a clearing agency registered under the
Exchange Act, (ii) Bucyrus executes and delivers to the Trustee a
notice that such Global Security shall be so transferable,
registrable, and exchangeable, and such transfers shall be registrable
or (iii) there shall have occurred and be continuing a Default. Any
Global Security that is exchangeable for certificated Securities
pursuant to the preceding sentence will be transferred to, and
registered and exchanged for, certificated Securities in authorized
denominations, without legends applicable to a Global Security, and
registered in such names as the Depository holding such Global
Security may direct. Subject to the foregoing, a Global Security is
not exchangeable, except for a Global Security of like denomination to
be registered in the name of the Depository or its nominee. In the
event that a Global Security becomes exchangeable for certificated
Securities, (i) certificated Securities will be issued only in fully
registered form in denominations of $1,000 or integral multiples
thereof, (ii) payment of principal, any repurchase price, and interest
on the certificated Securities will be payable, and the transfer of
the certificated Securities will be registrable, at the office or
agency of Bucyrus maintained for such purposes, and (iii) no service
charge will be made for any registration or transfer or exchange of
the certificated Securities, although Bucyrus may require payment of a
sum sufficient to cover any tax or governmental charge imposed in
connection therewith.
(3) Securities issued in exchange for a Global Security
or any portion thereof shall have an aggregate principal amount equal
to that of such Global Security or portion thereof to be so exchanged,
shall be registered in such names and be in such authorized
denominations as the Depository shall designate and shall bear the
applicable legends provided for herein. Any Global Security to be
exchanged in whole shall be surrendered by the Depository to
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the Trustee. With respect to any Global Security to be exchanged in
part, either such Global Security shall be so surrendered for exchange
or, if the Trustee is acting as custodian for the Depository or its
nominee with respect to such Global Security, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depository or an authorized
representative thereof.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion mutilated thereof, whether pursuant to
this Section 2.6, Section 2.7, 2.9, 2.14 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person
other than the Depository for such Global Security or a nominee
thereof. Members of, or participants in, the Depository ("
Participants") shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depository or by
the Trustee as the custodian of the Depository or under such Global
Security, and the Depository may be treated by Bucyrus, the Trustee
and any agent of Bucyrus or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent Bucyrus, the Trustee or any
agent of Bucyrus or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Participants,
the operation of customary practices of such Depository governing the
exercise of the rights of a holder of a beneficial interest in any
Global Security.
SECTION 2.7. Replacement Securities. If a mutilated
Security is surrendered to the Trustee or Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
Bucyrus shall issue and the Trustee shall authenticate a replacement Security
and the Guarantors shall execute a Guarantee thereon if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee and Bucyrus. Such Holder
shall furnish an indemnity bond sufficient in the judgment of Bucyrus, the
Guarantors and the Trustee to protect Bucyrus, the Guarantors, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of
them may suffer if a Security is replaced. Bucyrus and the Trustee may charge
the Holder for their expenses in replacing a Security.
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Every replacement Security issued pursuant to the terms of
this Section shall constitute an additional obligation of Bucyrus and the
Guarantors under this Indenture.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.8. Outstanding Securities. Securities
outstanding at any time are all Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those
described in this Section as not outstanding. Subject to the provisions of
Section 11.6, a Security does not cease to be outstanding because Bucyrus or an
Affiliate of Bucyrus holds the security.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Trustee and Bucyrus receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date or,
pursuant to Section 8.1(a), within 91 days prior thereto, money sufficient to
pay all principal and interest payable on that redemption or maturity date with
respect to the Securities (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after such date such Securities (or portions
thereof) cease to be outstanding and on and after such redemption or maturity
date interest on them ceases to accrue.
SECTION 2.9. Temporary Securities. Until definitive
Securities are ready for delivery, Bucyrus may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that Bucyrus
considers appropriate for temporary Securities. Without unreasonable delay,
Bucyrus shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary securities.
SECTION 2.10. Cancellation. Bucyrus at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel all Securities surrendered for registration of transfer, exchange,
payment or cancellation and deliver such canceled Securities to Bucyrus. The
Trustee shall from time to time provide Bucyrus a list of all Securities that
have been canceled as requested by Bucyrus.
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Bucyrus may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If Bucyrus defaults in a
payment of interest on the Securities, Bucyrus shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner in accordance with Section 4.1. Bucyrus may pay the defaulted interest
to the persons who are Securityholders on a subsequent special record date.
Bucyrus shall fix or cause to be fixed any such special record date and payment
date to the reasonable satisfaction of the Trustee and shall promptly mail to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers. Bucyrus in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
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 Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Bucyrus will promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 2.13. Restrictive Legends. Each Global Security
and Physical Security that constitutes a Restricted Security or is sold in
compliance with Regulation S shall bear the following legend (the "Private
Placement Legend") on the face thereof until after the second anniversary of
the later of the Issue Date and the last date on which Bucyrus or any Affiliate
of Bucyrus was the owner of such Security (or any predecessor security) (or
such shorter period of time as permitted by Rule 144(k) under the Securities
Act or any successor provision thereunder), or such longer period of time as
may be required under the Securities Act or applicable state securities laws in
the opinion of counsel for Bucyrus, unless otherwise agreed by Bucyrus and the
Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF BUCYRUS
INTERNATIONAL, INC. AND ITS SUBSIDIARIES (THE "COMPANY") THAT THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR
TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR A PREDECESSOR
SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE
COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO
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THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY), AND, IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN
TRANSFERORS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN PRIOR TO THE
EXPIRATION OF THE "40 DAY RESTRICTED PERIOD" (WITHIN THE MEANING OF
RULE 903(C)(3) OF REGULATION S UNDER THE SECURITIES ACT), A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (4) TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE IN THE
FORM ATTACHED TO THIS SECURITY IS DELIVERED BY THE TRANSFEREE TO THE
COMPANY AND THE TRUSTEE (PROVIDED THAT CERTAIN HOLDERS SPECIFIED IN
THE INDENTURE MAY NOT TRANSFER THIS SECURITY PURSUANT TO THIS CLAUSE
(4) PRIOR TO THE EXPIRATION OF THE "40 DAY RESTRICTED PERIOD" (WITHIN
THE MEANING OF RULE 903(C)(3) OF REGULATION S UNDER THE SECURITIES
ACT), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN
INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT WILL
FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY
TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2)
AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION
OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
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(O)(2) OR RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
Each Global Security shall also bear the following legend on
the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
securities IN DEFINITIVE FORM, THIS security MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR
BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE
OF SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO AN ISSUER
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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.14 OF THE INDENTURE REFERRED TO
HEREIN.
SECTION 2.14. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited
Investors and Non-U.S. Persons. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to any Institutional Accredited Investor which is not a
QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Security constituting a Restricted Security whether or not such
Security bears the Private Placement Legend, if (x) the requested
transfer is after the second anniversary of the Issue Date ( provided,
however , that neither Bucyrus nor any Affiliate of Bucyrus has held
any beneficial interest in such Security, or portion thereof, at any
time on or prior to the second anniversary of the Issue Date) or (y)
(1) in the case of a transfer to an Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate
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substantially in the form of Exhibit C hereto and any legal opinions
and certifications required thereby or (2) in the case of a transfer to
a Non-U.S. Person, the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D hereto;
and
(ii) if the proposed transferor is a Participant holding a
beneficial interest in the Global Security, upon receipt by the
Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) written instructions given in accordance with the
Depository's and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical
Securities) a decrease in the principal amount of such Global Security in an
amount equal to the principal amount of the beneficial interest in the Global
Security to be transferred, and (b) Bucyrus shall execute, the Guarantors shall
execute the Guarantees on, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Security stating, or has otherwise
advised Bucyrus and the Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the form of Security
stating, or has otherwise advised Bucyrus and the Registrar in
writing, that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding Bucyrus as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is a Participant, and the
Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in a Global
Security, upon receipt by the Xxxxxxxxx
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of written instructions given in accordance with the Depository's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of such
Global Security in an amount equal to the principal amount of the
Physical Securities to be transferred, and the Trustee shall cancel
the Physical Securities so transferred.
(c) Private Placement Legend. Upon the transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the requested transfer is after the
second anniversary of the Issue Date (provided, however, that neither Bucyrus
nor any Affiliate of Bucyrus has held any beneficial interest in such Security,
or portion thereof, at any time prior to or on the second anniversary of the
Issue Date), or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to Bucyrus and the Trustee to the effect that neither
such legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Security bearing
the Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.6 or this Section
2.14. Bucyrus shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time during
the Registrar's normal business hours upon the giving of reasonable written
notice to the Registrar.
(e) Transfers of Securities Held by Affiliates. Any
certificate (i) evidencing a Security that has been transferred to an Affiliate
of Bucyrus within two years after the Issue Date, as evidenced by a notation on
the Assignment Form for such transfer or in the representation letter delivered
in respect thereof or (ii) evidencing a Security that has been acquired from an
Affiliate (other than by an Affiliate) in a transaction or a chain of
transactions not involving any public offering, shall, until two years after
the last date on which either Bucyrus or any Affiliate of Bucyrus was an owner
of such Security, in each case, bear a legend in substantially the form set
forth in Section 2.13
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hereof, unless otherwise agreed by Bucyrus (with written notice thereof to the
Trustee).
ARTICLE 3
REDEMPTION
SECTION 3.1. Notices to Trustee. If Bucyrus elects to
redeem Securities pursuant to paragraph 5 thereof, it shall notify the Trustee
in writing of the redemption date, the principal amount of Securities to be
redeemed and the paragraph of the Securities pursuant to which the redemption
will occur. Bucyrus shall give each notice to the Trustee provided for in this
Section at least 45 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from Bucyrus to the effect that such redemption will comply with
the provisions herein.
SECTION 3.2. Selection of Securities To Be Redeemed. If
fewer than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by such other method that
complies with applicable legal and securities exchange requirements, if any,
and that the Trustee in its sole discretion shall deem to be fair and
appropriate and in accordance with methods generally used at the time of
selection by fiduciaries in similar circumstances. The Trustee shall make the
selection from outstanding Securities not previously called for redemption.
Securities and portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption. The Trustee shall notify Bucyrus promptly of the Securities or
portions of Securities to be redeemed. If any Security is to be redeemed in
part only, the notice of redemption relating to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Security. In the
event Bucyrus is required to make an offer to purchase Securities pursuant to
Section 4.8 or 4.13 and the amount available for such offer is not evenly
divisible by $1,000, the Trustee shall promptly refund to Bucyrus any remaining
funds, which in no event will exceed $1,000.
SECTION 3.3. Notice Of Redemption. At least 30 days but
not more than 60 days before a date for redemption of Securities, Bucyrus shall
mail a notice of redemption by first-class mail to the registered address
appearing in the Security Register of each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
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(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to
be redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless Bucyrus defaults in making such
redemption payment, interest on Securities (or portion thereof) called for
redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed;
(8) the CUSIP number, if any, printed on the Securities
being redeemed; and
(9) 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 Securities.
At Bucyrus' request, the Trustee shall give the notice of
redemption in Bucyrus' name and at Bucyrus' sole expense. In such event,
Bucyrus shall provide the Trustee with the information required by this
Section.
SECTION 3.4. Effect of Notice of Redemption. Once notice
of redemption is mailed, Securities called for redemption become due and
payable on the redemption date and at the redemption price stated in the
notice. Upon surrender to the Paying Agent, such Securities shall be paid at
the redemption price stated in the notice, plus accrued interest to the
redemption date. Such notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. Prior to 11:00
a.m. (New York City time) on the redemption date, Bucyrus shall deposit with
the Trustee or Paying Agent (or, if Bucyrus or a Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest (if any) on all Securities or portions
thereof to be
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redeemed on that date other than Securities or portions of Securities called
for redemption which have been delivered by Bucyrus to the Trustee for
cancellation.
SECTION 3.6. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part (with, if Bucyrus or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to Bucyrus and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), Bucyrus shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered, except that if a Global Security is so surrendered, Bucyrus shall
execute, and the Trustee shall authenticate and deliver to the Depository for
such Global Security, without service charge, a new Global Security in
denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered.
ARTICLE 4
COVENANTS
SECTION 4.1. Payment of Securities. Bucyrus shall
promptly pay the principal of and interest on the Securities on the dates and
in the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee
or the Paying Agent holds in accordance with this Indenture money sufficient to
pay all principal and interest then due. Bucyrus shall pay interest on overdue
principal at 1% per annum in excess of the rate per annum set forth in the
Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful. Interest will be computed on a basis of a
360-day year of twelve 30-day months.
SECTION 4.2. Corporate Existence. Subject to Article 5
and Section 4.13, Bucyrus shall do or caused to be one, at its own cost and
expense, all things necessary to, and will cause each Restricted Subsidiary to,
preserve and keep in full force and effect the corporate or partnership
existence and rights (charter and statutory), licenses and/or franchises of
Bucyrus and each Restricted Subsidiary; provided, however, that neither Bucyrus
nor any Restricted Subsidiary shall be required to preserve any such rights,
licenses or franchises if the Board of Directors shall reasonably determine
that the preservation thereof is no longer desirable in the conduct of the
business of Bucyrus and its Subsidiaries, taken as a whole.
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SECTION 4.3. Maintenance of Office or Agency. Bucyrus
shall maintain in the Borough of Manhattan the City of New York, an office or
agency (which may be an office or agency of the Trustee, Registrar or
co-Registrar), where Securities may be surrendered for registration of transfer
or exchange or for presentation for payment and where notices and demands to or
upon Bucyrus in respect of the Securities and this Indenture may be served.
Bucyrus will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time Bucyrus shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee's office in New
York City as set forth in Section 11.2.
Bucyrus may also from time to time designate one or more other
offices or agencies where the Securities 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 Bucyrus of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes. Bucyrus will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
Bucyrus hereby initially designates the Trustee's office or
agency in New York City as set forth in Section 11.2 as an agency of Bucyrus in
accordance with Section 2.3.
SECTION 4.4. Payment of Taxes and Other Claims. Bucyrus
shall, and shall cause each of its Subsidiaries to, pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (a)all
taxes, assessments and governmental charges levied or imposed upon its or its
Subsidiaries' income, profits or propertyand (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon its
property; provided, however, that none of Bucyrus or its Subsidiaries shall be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate negotiations or proceedings and for
which disputed amounts adequate reserves have been made in accordance with
GAAP.
SECTION 4.5. Future Guarantors. Buyers shall cause each
Restricted Subsidiary other than any Foreign Subsidiary to execute and deliver
to the Trustee a supplemental indenture pursuant to which such Restricted
Subsidiary will unconditionally and irrevocably guarantee (the "Guarantees")
payment of the Securities on the same terms and conditions as those set forth
in this Indenture and the Securities.
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SECTION 4.6. SEC Reports. Whether or not Bucyrus is then
subject to Section 13(a) or 15(d) of the Exchange Act, Bucyrus shall file with
the Commission, so long as the Securities are outstanding, the annual reports,
quarterly reports and other periodic reports that Bucyrus would be required to
file with the Commission pursuant to Section 13(a) or 15(d) if Bucyrus were so
subject, and such documents shall be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which Bucyrus would be
required so to file such documents if Bucyrus were so subject, unless, in any
case, such filing is not then permitted by the Commission. Bucyrus will also
in any event (i) within 15 days of each Required Filing Date, (a) transmit by
mail to holders of Securities, as their names and addresses appear in the
Securities Register, without cost to such holders, and (b) file with the
Trustees copies of the annual reports, quarterly reports and other periodic
reports that Bucyrus would be required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act if Bucyrus were subject to such
Section 13(a) or 15(d), and (ii) if such filing with Commission is not then
permitted by the Commission promptly upon written request, supply copies of
such documents to any prospective holder at Bucyrus' cost.
SECTION 4.7. Compliance Certificate. Bucyrus shall
deliver to the Trustee within 120 days after the end of each fiscal year of
Bucyrus an Officers' Certificate, signers of which shall be the principal
executive, financial or accounting officer of Bucyrus, stating that in the
course of the performance by the signers of their duties as Officers of Bucyrus
they would normally have knowledge of any Default and whether or not the
signers know of any Default that occurred during such period. If they do, the
certificate shall describe the Default, its status and what action Bucyrus is
taking or proposes to take with respect thereto. Bucyrus also shall comply
with TIA Section 314(a)(4).
SECTION 4.8. Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder shall have the right to require Bucyrus to purchase all or a portion of
such Holder's Securities at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of Holders of record on the relevant record
date to receive interest due on an interest payment date that is on or prior to
the date fixed for redemption), in accordance with the terms contemplated in
Section 4.8(b).
(b) Within 30 days following any Change of Control,
Bucyrus shall mail a notice to each Holder with a copy to the Trustee stating:
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(1) that a Change of Control has occurred and that such
Holder has the right to require Bucyrus to purchase such Holder's
Securities at the purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to
the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on an interest payment date
that is on or prior to the date fixed for purchase);
(2) the circumstances and relevant facts and relevant
financial information regarding such Change of Control;
(3) the purchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions as determined by Bucyrus, consistent
with this Section 4.8, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, together with all necessary endorsements
and other appropriate materials duly completed, to Bucyrus at the address
specified in the notice at least three Business Days prior to the purchase
date. Holders will be entitled to withdraw their election if the Trustee or
Bucyrus receives not later than one Business Day prior to the purchase date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase by the Holder
as to which such notice of withdrawal is being submitted and a statement that
such Holder is withdrawing its election to have such Security purchased.
(d) On the purchase date, all Securities purchased by
Bucyrus under this Section 4.8 shall be delivered to the Trustee for
cancellation, and Bucyrus shall pay the purchase price plus accrued and unpaid
interest, if any, to the Holders entitled thereto.
(e) Bucyrus shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.8. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of the covenant described hereunder,
Bucyrus shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the covenant
described hereunder by virtue thereof.
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(f) Notwithstanding the occurrence of a Change of
Control, Bucyrus shall not be obligated to purchase the Securities or otherwise
comply with this Section 4.8 if Bucyrus has irrevocably elected to redeem all
the Securities in accordance with paragraph 5 thereof; provided that Bucyrus
does not default in its redemption obligations pursuant to such election.
SECTION 4.9. Limitation on Incurrence of Indebtedness.
(a) Bucyrus shall not, and shall not permit any
Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness
except that Bucyrus or any Guarantor may Incur Indebtedness if, immediately
after giving effect to such Incurrence, the Consolidated Coverage Ratio exceeds
2.0 to 1.0.
(b) The foregoing Section 4.9(a) will not prohibit
Incurrence of the following Indebtedness (collectively, "Permitted
Indebtedness"):
(1) Indebtedness of Bucyrus or any Restricted Subsidiary
Incurred pursuant to the Bank Credit Facility; provided, however,
that, after giving effect to any such Incurrence, the aggregate
principal amount of such Indebtedness then outstanding does not exceed
the greater of (i) $75.0 million or (ii) the sum of (x) 60% of the net
book value of the inventory of Bucyrus and the Restricted Subsidiaries
and (y) 85% of the net book value of the accounts receivable of
Bucyrus and the Restricted Subsidiaries, in each case determined on a
consolidated basis in accordance with GAAP;
(2) Indebtedness represented by the Securities (and the
Guarantees thereof) and the Exchange Securities (and the Guarantees
thereof), and Refinancing Indebtedness thereof;
(3) Indebtedness to the extent outstanding on the Issue
Date (other than Indebtedness described in clause (1) above or the AIP
Bridge Loan), and Refinancing Indebtedness thereof;
(4) Indebtedness of Bucyrus owed to and held by any
Wholly Owned Subsidiary or Indebtedness of a Wholly Owned Subsidiary
owed to and held by Bucyrus or another Wholly Owned Subsidiary;
provided, however, that an Incurrence of Indebtedness that is not
permitted by this clause (4) shall be deemed to have occurred upon (a)
the transfer or other disposition of any such Indebtedness to a Person
other than Bucyrus or a Wholly Owned Subsidiary, (b) the sale, lease,
transfer or other disposition of shares of Capital Stock (including by
consolidation or merger) of any Wholly Owned
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Subsidiary that holds Indebtedness of Bucyrus or any other Wholly
Owned Subsidiary to a Person other than Bucyrus or another Wholly
Owned Subsidiary, or (c) the designation of a Wholly Owned Subsidiary
that holds Indebtedness of Bucyrus or any other Wholly Owned
Subsidiary as an Unrestricted Subsidiary;
(5) Indebtedness of Bucyrus owed to and held by any
Guarantor or Indebtedness of a Guarantor owed to and held by Bucyrus
or another Guarantor; provided, however, that an Incurrence of
Indebtedness that is not permitted by this clause (5) shall be deemed
to have occurred upon (a) the transfer or other disposition of any
Indebtedness to a Person other than Bucyrus or a Guarantor or (b) such
Guarantor's ceasing to be a Guarantor;
(6) Hedging Obligations consisting of Interest Rate
Agreements and Currency Agreements entered into in the ordinary course
of business and not for the purpose of speculation; provided, however,
that, in the case of Currency Agreements and Interest Rate Agreements,
such Currency Agreements and Interest Rate Agreements do not increase
the Indebtedness of Bucyrus outstanding at any time other than as a
result of fluctuations in foreign currency exchange rates or interest
rates or by reason of fees, indemnities and compensation payable
thereunder;
(7) Purchase Money Indebtedness and Capital Lease
Obligations Incurred to finance the acquisition or improvement by
Bucyrus or a Restricted Subsidiary of any assets (including capital
expenditures), and Refinancing Indebtedness thereof, in an aggregate
principal amount not to exceed $10.0 million at any time outstanding;
(8) Indebtedness of any Foreign Subsidiary Incurred for
the working capital purposes of such Foreign Subsidiary, and
Refinancing Indebtedness thereof, in an aggregate principal amount not
to exceed $15.0 million at any time outstanding;
(9) Indebtedness of Bucyrus or any Restricted Subsidiary
constituting lease payments or guarantees of lease payments or similar
obligations of a customer of Bucyrus or a Restricted Subsidiary in
connection with a Leasing Program, and Refinancing Indebtedness
thereof, in an aggregate principal amount not to exceed $10.0 million
at any time outstanding; and
(10) Indebtedness of Bucyrus or any Restricted Subsidiary
in addition to that described in clauses (1) through (9) above, so
long as the aggregate principal amount
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of all such Indebtedness incurred pursuant to this clause (10) does
not exceed $10.0 million at any time outstanding.
(c) Notwithstanding the foregoing, Bucyrus shall not, and
shall not permit any Guarantor to, Incur any Indebtedness that purports to be
by its terms (or by the terms of any agreement or instrument governing such
Indebtedness) subordinated to any other Indebtedness of Bucyrus or of such
Guarantor, as the case may be, unless such Indebtedness is also by its terms
(or by the terms of the agreement or instrument governing such Indebtedness)
made expressly subordinated to the Securities or the Guarantee of such
Guarantor, as applicable, to at least the same extent as such Indebtedness is
subordinated to such other Indebtedness of Bucyrus or such Guarantor, as
applicable.
SECTION 4.10. Limitation on Restricted Payments.
(a) Bucyrus shall not, and shall not permit any
Restricted Subsidiary, directly or indirectly, to declare or make a Restricted
Payment if:
(1) a Default shall have occurred and be continuing (or
would result therefrom);
(2) immediately after giving effect to the proposed
Restricted Payment, Bucyrus is not able to Incur an additional $1.00
of Indebtedness pursuant to Section 4.9(a); or
(3) the aggregate amount of such Restricted Payment
together with all other Restricted Payments (the amount of any
payments made in property other than cash to be valued at the fair
market value of such property, as determined in good faith by the
Board of Directors) declared or made since the Issue Date (other than
any Restricted Payment described in clause (ii), (iii) or (iv) of
Section 4.10(b)) would exceed the sum (the "Basket") of:
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the
fiscal quarter during which the Securities are originally
issued to the end of the most recent fiscal quarter prior to
the date of such Restricted Payment for which financial
statements are available (or, in case such Consolidated Net
Income accrued during such period (treated as one accounting
period) shall be a deficit, minus 100% of such deficit);
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(B) the aggregate Net Cash Proceeds received by
Bucyrus from the issuance or sale (other than to a Subsidiary
of Bucyrus) of Qualified Stock subsequent to the Issue Date;
(C) the principal amount (or accreted value, if
less) by which Indebtedness of Bucyrus or any Restricted
Subsidiary is reduced on Bucyrus' balance sheet upon the
conversion or exchange (other than by a Subsidiary of Bucyrus)
subsequent to the Issue Date into Qualified Stock (less the
amount of any cash, or the fair value of any other property,
distributed by Bucyrus or any Restricted Subsidiary upon such
conversion or exchange); and
(D) to the extent not included in the calculation
of the Consolidated Net Income referred to in (A), an amount
equal to the sum of (i) the net reduction in Investments in
Unrestricted Subsidiaries resulting from dividends, repayments
of loans or advances or other transfers of assets subsequent
to the Issue Date, in each case to Bucyrus or any Restricted
Subsidiary from Unrestricted Subsidiaries, and (ii) the
portion (proportionate to Bucyrus' equity interest in such
Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is redesignated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case
of any Unrestricted Subsidiary, the amount of Investments
previously made (and treated as a Restricted Payment) by
Bucyrus or any Restricted Subsidiary in such Unrestricted
Subsidiary;
provided, however, that the AIP Equity Contribution shall not increase the
Basket.
(b) The provisions of Section 4.10(a) shall not prohibit
the following actions: (i) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would have
been permitted under this Indenture; (ii) any repurchase, redemption,
retirement or other acquisition of Capital Stock or Subordinated Obligations of
Bucyrus made in exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Subsidiary of Bucyrus) of, Qualified Stock or,
with respect to any such Subordinated Obligations, in exchange for or out of
the proceeds of the substantially concurrent sale (other than to a Subsidiary
of Bucyrus) of other Subordinated Obligations of Bucyrus; provided, however,
that such exchange or sale shall not increase the Basket; (iii) any repurchase,
redemption, retirement or other acquisition of Capital Stock of Bucyrus held by
officers,
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directors and employees of Bucyrus or any Restricted Subsidiary upon such
persons' death, retirement or other termination of employment or directorship,
as the case may be; provided, however, that the aggregate amount of Restricted
Payments pursuant to this clause (iii) shall not exceed $5.0 million; and (iv)
Restricted Payments not to exceed $5.0 million in the aggregate since the Issue
Date; provided, however, that in the case of clauses (ii), (iii) and (iv), no
Default shall have occurred and be continuing or would arise therefrom.
SECTION 4.11. Limitation on Liens. Bucyrus shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or
permit to exist any Lien (other than Permitted Liens) of any nature whatsoever
on any property of Bucyrus or any Restricted Subsidiary (including Capital
Stock of a Restricted Subsidiary), whether owned at the Issue Date or
thereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, unless the Securities and the Guarantees 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 (and if the
obligations so secured are subordinated to the Securities and the Guarantees,
the Lien securing such obligations are also so subordinated at least to the
same extent).
SECTION 4.12. Limitation on Transactions with Affiliates.
(a) Bucyrus shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, enter into or permit to exist
any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property, employee
compensation arrangements or the rendering of any service) with any Affiliate
of Bucyrus (an "Affiliate Transaction") unless the terms thereof (1) are no
less favorable to Bucyrus or such Restricted Subsidiary than those that could
be obtained at the time of such transaction in arm's-length dealings with a
Person who is not such an Affiliate, (2) if such Affiliate Transaction involves
aggregate value in excess of $1.0 million in any one year, (i) are set forth in
writing, (ii) comply with clause (1), and (iii) have been approved by a
majority of the Independent Directors, and (3) if such Affiliate Transaction
involves aggregate value in excess of $5.0 million in any one year, (i) comply
with clause (2), and (ii) have been determined by a nationally recognized
investment banking, appraisal, valuation or accounting firm to be fair, from a
financial standpoint, to Bucyrus and the Restricted Subsidiaries.
(b) Section 4.12(a) shall not prohibit (i) any Restricted
Payment permitted to be made pursuant to Section 4.10, (ii) any issuance of
securities, or other payments, awards or
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grants in cash, securities or otherwise, pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans in the
ordinary course of business (as determined in good faith by the Board of
Directors) and approved by the Board of Directors, (iii) the grant of stock
options or similar rights to employees and directors of Bucyrus in the ordinary
course of business (as determined in good faith by the Board of Directors) and
pursuant to plans approved by the Board of Directors, (iv) loans or advances to
employees in the ordinary course of business of Bucyrus and the Restricted
Subsidiaries, (v) fees, compensation or employee benefit arrangements paid to
and indemnity provided for the benefit of directors, officers or employees of
Bucyrus or any Subsidiary in the ordinary course of business, (vi) any
transaction solely between or among Bucyrus and/or one or more Guarantors
and/or Wholly Owned Subsidiaries, (vii) performance or discharge by Bucyrus of
its obligations under agreements as in effect on the Issue Date, (viii)
repayment of the AIP Bridge Loan upon consummation of the AIP Merger or (ix)
payment of $4.0 million to AIP in connection with the AIP Merger or payment of
fees to AIP pursuant to the Management Agreement in an amount not to exceed
$1.5 million per year.
SECTION 4.13. Limitation on Sales of Assets and Subsidiary
Stock.
(a) Bucyrus shall not, and shall not permit any
Restricted Subsidiary to, consummate any Asset Disposition unless (i) Bucyrus
or such Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Disposition at least equal to the fair market value
(including as to the value of all non-cash consideration), as determined in
good faith by the Board of Directors, of the assets or other property subject
to such Asset Disposition, and (ii) at least 75% of the consideration therefor
received by Bucyrus or such Restricted Subsidiary is in the form of cash or
Temporary Cash Investments. For the purposes of this Section 4.13, the
following are deemed to be cash: (x) amount of any liabilities (other than
liabilities that are subordinated to any other Indebtedness of Bucyrus or such
Restricted Subsidiary, as the case may be) of Bucyrus or such Restricted
Subsidiary (as shown on Bucyrus' or such Restricted Subsidiary's most recent
balance sheet or in the notes thereto) that are assumed by the transferee of
any such assets or other property in such Asset Disposition, but only to the
extent that such assumption is effected on a basis under which there is no
further recourse to Bucyrus or any Restricted Subsidiary with respect to such
liabilities and (y) securities received by Bucyrus or any Restricted Subsidiary
from the transferee that are immediately converted by Bucyrus or such
Restricted Subsidiary into cash.
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With respect to any Asset Disposition occurring on or after
the Issue Date from which Bucyrus or any Restricted Subsidiary receives Net
Available Cash, Bucyrus or such Restricted Subsidiary may within 270 days after
the date such Net Available Cash is received: (i) apply an amount equal to
such Net Available Cash to permanently prepay, repay or purchase Indebtedness
under the Bank Credit Facility; or (ii) invest an equal amount, or the amount
not so applied pursuant to clause (i), in Additional Assets (including by means
of an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by Bucyrus or another Restricted Subsidiary). The
amount of Net Available Cash not applied pursuant to clause (ii) above shall
constitute "Excess Proceeds." Pending application of Net Available Cash
pursuant to this provision, such Net Available Cash shall be invested in
Temporary Cash Investments.
If at any time the aggregate amount of Excess Proceeds not
theretofore subject to an Excess Proceeds Offer (as defined below) totals at
least $5.0 million, Bucyrus shall, not later than 10 business days after the
end of the period during which Bucyrus is required to apply such Excess
Proceeds pursuant to clause (i) of the immediately preceding paragraph (or, if
Bucyrus so elects, at any time within such period), make an offer (an "Excess
Proceeds Offer") to purchase from the holders of Securities and Other Qualified
Securities (determined on a pro rata basis according to the accreted value or
principal amount, as the case may be, of the Securities and the Other Qualified
Securities) that may be purchased out of the Excess Proceeds (rounded down to
the nearest multiple of $1,000) on such date, at a purchase price (x) in the
case of the Securities, equal to 100% of the principal amount of such
Securities, plus accrued and unpaid interest, if any, to the date of purchase
and (y) in the case of each issue of Other Qualified Securities, based on the
terms set forth in the indenture related to such issue. Upon completion of an
Excess Proceeds Offer the amount of Excess Proceeds remaining after application
pursuant to such Excess Proceeds Offer (including payment of the purchase price
for Securities and Other Qualified Securities duly tendered) may be used by
Bucyrus for any corporate purpose (to the extent not otherwise prohibited by
this Indenture).
(b) Promptly, and in any event within 30 days after
Bucyrus becomes obligated to make an Excess Proceeds Offer, Bucyrus shall be
obligated to deliver to the Trustee and send, by first-class mail to each
Holder, at the address appearing in the Securities Register, a written notice
stating that the Holder may elect to have his Securities purchased by Bucyrus
either in whole or in part (subject to prorationing as hereinafter described in
the event the Excess Proceeds Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice,
which shall govern the terms of the
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Excess Proceeds Offer, shall include such disclosures as are required by law
and shall specify (i) that the Excess Proceeds Offer is being made pursuant to
this Section 4.13; (ii) the purchase price (including the amount of accrued
interest, if any) for each Security and the purchase date not less than 30 days
nor more than 60 days after the date of such notice (the "Purchase Date");
(iii) that any Security not tendered or accepted for payment will continue to
accrue interest in accordance with the terms thereof; (iv) that, unless Bucyrus
defaults on making the payment, any Security accepted for payment pursuant to
the Excess Proceeds Offer shall cease to accrue interest on and after the
Purchase Date; (v) that Holders electing to have Securities purchased pursuant
to an Excess Proceeds Offer will be required to surrender their Securities to
the Paying Agent at the address specified in the notice at least three Business
Days prior to 5:00 p.m., New York City time, on the Purchase Date and must
complete any form letter of transmittal proposed by Bucyrus and acceptable to
the Trustee and the Paying Agent; (vi) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than one
Business Day prior to the Purchase Date, a telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of Securities
the Holder delivered for purchase, the Security certificate number (if any) and
a statement that such Holder is withdrawing its election to have such
Securities purchased; (vii) that if Securities in a principal amount in excess
of the aggregate principal amount which Bucyrus has offered to purchase are
tendered pursuant to the Excess Proceeds Offer, Bucyrus shall purchase
Securities on a pro rata basis among the Securities tendered (with such
adjustments as may be deemed appropriate by Bucyrus so that only Securities in
denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(viii) that Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered; and (ix) the instructions that Holders must follow in
order to tender their Securities.
(c) Not later than the date upon which written notice of
an Excess Proceeds Offer is delivered to the Trustee as provided below, Bucyrus
shall deliver to the Trustee an Officers' Certificate as to (i) the amount of
the Excess Proceeds Offer (the "Excess Proceeds Offer Amount"), (ii) the
allocation of the Net Available Cash from the Asset Dispositions pursuant to
which such Excess Proceeds Offer is being made, and (iii) the compliance of
such allocation with the provisions of Section 4.13(a). Upon the expiration of
the period for which the Excess Proceeds Offer remains open (the "Excess
Proceeds Offer Period"), Bucyrus shall deliver to the Trustee for cancellation
the Securities or portions thereof which have been properly tendered to and are
to be accepted by Bucyrus. Not later than 11:00 a.m. (New York City time) on
the Purchase Date, Bucyrus shall irrevocably deposit with
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the Trustee or with a paying agent (or, if Bucyrus is acting as Paying Agent,
segregate and hold in trust) an amount in cash sufficient to pay the Excess
Proceeds Offer Amount for all Securities properly tendered to and accepted by
Bucyrus. The Trustee shall, on the Purchase Date, mail or deliver payment to
each tendering Holder in the amount of the purchase price.
(d) Holders electing to have a Security purchased will be
required to surrender the Security, together with all necessary endorsements
and other appropriate materials duly completed, to Bucyrus at the address
specified in the notice at least three Business Days prior to the Purchase
Date. Holders will be entitled to withdraw their election in whole or in part
if the Trustee or Bucyrus receives not later than one Business Day prior to the
Purchase Date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security (which shall be $1,000 or an
integral multiple thereof) which was delivered for purchase by the Holder, the
aggregate principal amount of such Security (if any) that remains subject to
the original notice of the Excess Proceeds Offer and that has been or will be
delivered for purchase by Bucyrus and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Excess Proceeds Offer Period the aggregate principal amount of
Securities surrendered by Holders exceeds the Excess Proceeds Offer Amount,
Bucyrus shall select the Securities to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by Bucyrus so that only
securities in denominations of $1,000, or integral multiples thereof, shall be
purchased). Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(e) A Security shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an agent, mails or
delivers payment therefor to the surrendering Holder.
(f) Bucyrus shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations thereunder in the event that such Excess Proceeds are
received by Bucyrus under the covenant described hereunder and Bucyrus is
required to repurchase Securities described above. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of the covenants described hereunder, Bucyrus shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the covenant described hereunder by virtue thereof.
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SECTION 4.14. Limitation on Dividend and Other Restrictions
Affecting Restricted Subsidiaries. Bucyrus shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any Restricted Subsidiary
(i) to pay dividends or make any other distributions on
its Capital Stock to Bucyrus or any other Restricted Subsidiary or pay
any Indebtedness owed to Bucyrus or any other Restricted Subsidiary,
(ii) to make any loans or advances to, or guarantee any
Indebtedness of, Bucyrus or any other Restricted Subsidiary, or
(iii) transfer any of its property or assets to Bucyrus or
any other Restricted Subsidiary, except:
(A) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Issue Date
(including, without limitation, the Bank Credit Facility), as
such encumbrance or restriction is in effect on the Issue
Date;
(B) any encumbrance or restriction with respect
to a Restricted Subsidiary pursuant to an agreement relating
to any Indebtedness Incurred by such Restricted Subsidiary
which was entered into on or prior to the date on which such
Restricted Subsidiary was acquired by Bucyrus (other than as
consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by Bucyrus) and outstanding on such
date;
(C) any encumbrance or restriction pursuant to an
agreement effecting a Refinancing of Indebtedness Incurred
pursuant to an agreement referred to in clause (A) or (B) of
this Section 4.14 (or effecting a Refinancing of such
Refinancing Indebtedness pursuant to this clause (C)) or
contained in any amendment to an agreement referred to in
clause (A) or (B) of this Section 4.14 or this clause (C);
provided, however, that the encumbrances and restrictions with
respect to such Restricted Subsidiary contained in any such
refinancing agreement or amendment are no more restrictive in
any material respect than the
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encumbrances and restrictions with respect to such Restricted
Subsidiary contained in such agreements;
(D) any such encumbrance or restriction
consisting of customary non-assignment provisions in leases
governing leasehold interests to the extent such provisions
restrict the transfer of the lease or the property leased
thereunder;
(E) restrictions contained in security agreements
or mortgages on property acquired in the ordinary course of
business to the extent such restrictions restrict the transfer
of the property subject to such security agreements or
mortgages;
(F) any restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of the Capital Stock or assets of such
Restricted Subsidiary; provided, however, that such
restriction is applicable only to such Capital Stock or
assets, as applicable, and such sale or disposition otherwise
is permitted under Section 4.13; and
(G) any restriction imposed by applicable law.
SECTION 4.15. Limitation on Issuance or Sale of Capital
Stock of Wholly Owned Subsidiaries. Bucyrus (i) will not, and will not permit
any Wholly Owned Subsidiary (other than any Guarantor) to, transfer, convey,
sell, lease or otherwise dispose of any Capital Stock of any Wholly Owned
Subsidiary (other than any Guarantor) to any Person (other than Bucyrus or
another Wholly Owned Subsidiary), unless (a) such transfer, conveyance, sale,
lease or other disposition consists of all of the Capital Stock of such Wholly
Owned Subsidiary and (b) the net cash proceeds from such transfer, conveyance,
sale, lease or other disposition are applied in accordance with Section 4.13
and (ii) will not permit any Wholly Owned Subsidiary to issue any Capital Stock
(other than, if necessary, shares constituting directors' qualifying shares) to
any Person other than to Bucyrus or another Wholly Owned Subsidiary.
SECTION 4.16. Limitation on Sale and Leaseback
Transactions. Bucyrus will not, and will not permit any Restricted Subsidiary
to, enter into any Sale and Leaseback Transaction; provided, however, that
Bucyrus may enter into a Sale and Leaseback Transaction if (i) Bucyrus could
have (a) Incurred Indebtedness in an amount equal to the Attributable Debt
relating to such Sale and Leaseback Transaction pursuant to Section 4.9, and
(b) Incurred a Lien to secure such Indebtedness pursuant to Section 4.11, (ii)
the gross cash proceeds of such Sale and
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Leaseback Transaction are at least equal to the fair market value (as
determined in good faith by the Board of Directors and set forth in an
Officers' Certificate delivered to the Trustee) of the property that is the
subject of such Sale and Leaseback Transaction, and (iii) the transfer of
assets in such Sale and Leaseback Transaction is permitted by, and Bucyrus
applies the proceeds of such transaction in compliance with, Section 4.13.
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.1. Merger, Consolidation and Sale of Assets.
Bucyrus shall not consolidate with or merge with or into, or convey, transfer
or lease, in one transaction or a series of transactions, all or substantially
all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company"), whether or not Bucyrus, shall be a Person
organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and the Successor
Company (if not Bucyrus) shall expressly assume, by an indenture
supplemental thereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of Bucyrus under the
Securities, this Indenture and the Registration Agreement;
(ii) immediately after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary as a result of such transaction as
having been Incurred by such Successor Company or such Subsidiary at
the time of such transaction), no Default shall have occurred and be
continuing;
(iii) except in the case of a merger the sole purpose of
which is to change Bucyrus' jurisdiction of incorporation, immediately
after giving effect to such transaction, the Successor Company would
be able to Incur an additional $1.00 of Indebtedness pursuant to
Section 4.9(a) (treating the Successor Company as Bucyrus);
(iv) immediately after giving effect to such transaction,
the Successor Company shall have Consolidated Net Worth in an amount
that is not less than the Consolidated Net Worth of Bucyrus
immediately prior to such transaction; and
(v) Bucyrus shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
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that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture.
Notwithstanding the foregoing clauses (ii), (iii) and (iv) of
this Section 5.1, any Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to Bucyrus.
Opinions of Counsel required to be delivered under this
Section or elsewhere in this Indenture may have qualifications customary for
opinions of the type required, and counsel delivering such Opinions of Counsel
may rely on certificates of Bucyrus or government or other officials customary
for opinions of the type required, including certificates certifying as to
matters of fact.
The Successor Company shall be the successor to Bucyrus and
shall succeed to, and be substituted for, and may exercise every right and
power of, Bucyrus under this Indenture, but the predecessor Company in the case
of a conveyance, transfer or lease shall not be released from the obligation to
pay the principal of and interest on the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. Any of the following
shall constitute an Event of Default:
(i) default for 30 days in the payment when due of
interest on any Security;
(ii) default in the payment when due of principal on any
Security, whether upon maturity, acceleration, optional redemption,
required repurchase or otherwise;
(iii) failure to perform or comply with any covenant,
agreement, warranty or obligation in this Indenture or the Securities
(other than any specified in clause (i) or (ii) above) which failure
continues for 30 days after written notice thereof has been given to
Bucyrus by the Trustee or to Bucyrus and the Trustee by the Holders of
at least 25% in aggregate principal amount of the then outstanding
Securities;
(iv) default 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 Bucyrus or any
Restricted Subsidiary whether such Indebtedness now exists, or is
created after the Issue Date,
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which default (x)(a) is caused by a failure to pay such Indebtedness
at Stated Maturity (giving effect to any grace period related thereto)
(a " Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its stated maturity and (y) in each case, the
principal amount of any such Indebtedness as to which a Payment
Default or acceleration shall have occurred, together with the
principal amount of any other such Indebtedness under which there has
been a Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more;
(v) one or more judgments, orders or decrees for the
payment of money of $10.0 million or more, individually or in the
aggregate, shall be entered against Bucyrus or any Restricted
Subsidiary or any of their respective properties and which judgments,
orders or decrees are not paid, discharged, bonded or stayed within 60
days after their entry;
(vi) Bucyrus or any Significant Restricted Subsidiary:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case in which it is the debtor;
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating
to insolvency;
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against Bucyrus or any
Significant Restricted Subsidiary in an involuntary case;
(B) appoints a Custodian of Bucyrus or any
Significant Restricted Subsidiary or for any substantial part
of the property of Bucyrus or Significant Restricted
Subsidiary; or
(C) orders the winding up or liquidation of
Bucyrus or any Significant Restricted Subsidiary of Bucyrus;
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(or any similar relief is granted under any foreign laws) and the
order or decree remains unstayed and in effect for 60 days; or
(viii) any Guarantee ceases to be in full force and effect
(other than in accordance with its terms or this Indenture) or any
Guarantor denies or disaffirms its obligations under its Guarantee.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
as amended, or any similar federal or state law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
Bucyrus shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (iv) of this Section 6.1 and any event which
with the giving of notice or the lapse of time would become an Event of Default
under clause (iii) or (v) of this Section 6.1, its status and what action
Bucyrus is taking or proposes to take with respect thereto.
SECTION 6.2. Acceleration. If an Event of Default occurs
and is continuing (other than an Event of Default described in clause (vi) or
(vii) of Section 6.1 with respect to Bucyrus), the Trustee or the Holders of at
least 25% in principal amount of the outstanding Securities may declare the
principal of and accrued but unpaid interest on all the Securities to be due
and payable. Upon such a declaration, such principal and interest shall be due
and payable immediately. If an Event of Default described in clause (vi) or
(vii) of Section 6.1 occurs with respect to Bucyrus, the principal of and
interest on all the Securities will ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holders of the Securities. The Holders of a majority in aggregate
principal amount of the outstanding Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal of or interest on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder 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. No remedy is
exclusive of any other remedy. All available remedies are, to the extent
permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Securities then outstanding by
notice to the Trustee may waive any past or existing Default and its
consequences except (i) a Default in the payment of the principal of or
interest on a Security or (ii) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of each Holder affected.
When a Default is waived, it is deemed cured, and any Event of Default arising
therefrom shall be deemed to have been cured, but no such waiver shall extend
to any subsequent or other Default or impair any consequent right.
SECTION 6.5. Control by Majority. The Holders of a
majority in principal amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.1, that the Trustee determines is unduly
prejudicial to the rights of any other Holder (it being understood that the
Trustee shall have no duty to make such determination) or that would involve
the Trustee in personal liability; provided, however, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with
such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification from the Holders satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
SECTION 6.6. Limitation on Suits. A Holder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) such Holder has previously given the Trustee notice
stating that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the
outstanding Securities have requested the Trustee to pursue the
remedy;
(3) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense;
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(4) the Trustee has not complied with such request within
60 days after the receipt thereof and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
outstanding Securities have not given the Trustee a direction
inconsistent with such request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal, premium (if any) or interest on the Securities
held by such Holder, on or after the respective due dates therefor, 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 6.8. Collection Suit by Trustee. If an Event of
Default specified in Section 6.1(i) or (ii) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against Bucyrus for the whole amount then due and owing (together with interest
on any unpaid interest to the extent lawful) and the amounts provided for in
Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and the
Holders allowed in any judicial proceedings relative to Bucyrus, its creditors
or its property and, unless prohibited by law or applicable regulations, may
vote on behalf of the Holders in any election of a trustee in bankruptcy or
other Person performing similar functions, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article 6, it shall pay out the money or
property in the following order, subject to applicable law:
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FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to Bucyrus.
The Trustee may, upon prior written notice to Bucyrus, fix a
record date and payment date for any payment to Holders pursuant to this
Section. At least 15 days before such record date, Bucyrus shall mail to each
Holder and the Trustee a notice that states the record date, the payment date
and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as 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 and expenses,
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 Trustee, a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in aggregate principal amount of the
outstanding Securities.
ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
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Indenture and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the 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 Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the 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 Sections 6.2 and 6.5 hereof.
(d) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1,
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
(b) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein
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specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate.
(c) Before the Trustee acts or refrains from acting, the
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 in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity reasonable
to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(e) Prior to the occurrence of an Event of Default
hereunder and after the cure or waiver of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, Officers' Certificate, or other request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document unless requested in writing to do so by the Holders of not less than a
majority in aggregate principal amount of the Securities then outstanding;
provided that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigations, in the opinion of the Trustee, is not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every such
examination shall be paid by Bucyrus or, if advanced by the Trustee, shall be
repaid by Bucyrus on demand.
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(g) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, or where information is
required or necessary to be furnished by Bucyrus in order for the Trustee to
act, the Trustee (unless otherwise evidence by herein specifically prescribed),
shall not be liable for any action it takes or omits to take in good faith in
reliance upon an Officers' Certificate, or for any
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action taken or omitted to be taken by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Indenture.
(h) The Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants, conditions or
agreements on the part of Bucyrus, except as otherwise specifically set forth
in this Indenture, but the Trustee may require of Bucyrus full information and
advice as to the performance of the covenants, conditions and agreements
contained herein.
(i) Except for (i) a default under Section 6.1(i),
6.1(ii) or 4.1, (ii) the failure of Bucyrus to file any financial statements,
documents or certificates specifically required to be filed with the Trustee
pursuant to the provisions of this Indenture or (iii) any other event of which
the Trustee has "actual knowledge" and which event constitutes a Default under
this Indenture, the Trustee shall not be deemed to have notice of any default
or event unless specifically notified in writing by Bucyrus or the holders of
not less than 25% in aggregate principal amount of the Securities then
outstanding; as used herein, the term "actual knowledge" means the actual fact
of knowing, without a duty to make any investigation with regard thereto.
(j) The Trustee shall not be required to give any note,
bond or surety in respect of the execution of the trusts and powers under this
Indenture.
(k) The permissive rights of the Trustee to perform acts
enumerated in this Indenture shall not be construed as a duty.
(l) The Trustee shall not be liable for any interest on
any money received by it except as the Trustee may agree in writing with the
Company.
(m) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
SECTION 7.3. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with Bucyrus or its respective Affiliates
with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall
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not be accountable for Bucyrus' use of the proceeds from the Securities, and it
shall not be responsible for any statement of Bucyrus in this Indenture or in
any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default occurs and
is continuing and if it is known to a Responsible Officer of the Trustee, the
Trustee shall mail to each Holder notice of the Default within 30 days after it
is known by a Trust Officer or written notice is received by the Trustee.
Except in the case of a Default in payment of principal of or interest on any
Security (including payments pursuant to the mandatory redemption provisions of
such Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Holders.
SECTION 7.6. Reports by Trustee to Holders. As promptly
as practicable after each January 1 beginning with the January 1 following the
date of this Indenture, and in any event prior to March 31 in each year, the
Trustee shall mail to each Holder a brief report dated as of January 1 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b). Prior to delivery to the Holders, The Trustee shallpromptly
deliver to Bucyrus a copy of any report it delivers to Holders pursuant to this
Section 7.6.
SECTION 7.7. Compensation and Indemnity. Bucyrus shall
pay to the Trustee from time to time such reasonable compensation for its
services as Bucyrus and the Trustee shall from time to time agree in writing.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. Bucyrus shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to such compensation for its services, except
any such expense, disbursement or advance as may arise from its negligence,
willful misconduct or bad faith. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Trustee shall provide Bucyrus reasonable
notice of any expenditure not in the ordinary course of business. Bucyrus
shall indemnify each of the Trustee and any predecessor Trustees against any
and all loss, damage, claim, liability or expense (including attorneys' fees
and expenses) (other than taxes applicable to the Trustee's compensation
hereunder) incurred by it in connection with the acceptance or administration
of this trust and the performance of its duties hereunder. The Trustee shall
notify Bucyrus promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify Bucyrus shall not relieve Bucyrus of its
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obligations hereunder. Bucyrus shall defend the claim and the Trustee shall
cooperate in the defense of such claim. The Trustee may have separate counsel
at its own expense. If, however, representation in any defense by Bucyrus and
its counsel would in the opinion of counsel to the Trustee create a conflict of
interest, Bucyrus shall pay the expense of separate counsel to the Trustee.
Bucyrus need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee's own willful
misconduct, negligence or bad faith. Bucyrus need not pay for any settlement
made without its written consent.
To secure Bucyrus' payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
Bucyrus' payment obligations pursuant to this Section shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of an Event of
Default specified in Section 6.1(vi) or (vii) with respect to Bucyrus, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may
resign at any time upon 30 days notice to Bucyrusby so notifying the Company.
The Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee. Bucyrus shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by Bucyrus or by the
Holders of a majority in principal amount of the outstanding Securities and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), Bucyrus shall promptly
appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to Bucyrus.
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Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the outstanding Securities may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, Bucyrus' obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee, so long as such corporation is
eligible under this Article 7 and TIA Section 310(a).
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under
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which other securities or certificates of interest or participation in other
securities of Bucyrus are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Bucyrus. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities;
Defeasance.
(a) When (i) Bucyrus delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to Section 2.7)
for cancellation or (ii) all outstanding Securities have become due and
payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article 3 hereofor the Securities will become due and
payable at their Maturity within 91 days, or the securities are to be called
for redemption within 91 days under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and Bucyrus irrevocably deposits with the Trustee
funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon, and if in either case Bucyrus pays all
other sums payable hereunder by Bucyrus, then the Indenture shall, subject to
Section 8.1(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of Bucyrus accompanied
by an Officers' Certificate and an Opinion of Counsel that all conditions
precedent provided for herein relating to satisfaction and discharge of this
Indenture have been complied with and at the cost and expense of Bucyrus.
(b) Subject to Sections 8.1(c) and 8.2, Bucyrus at any
time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.4 through 4.16, inclusive and the operation of Sections 6.1(iii), 6.1(iv),
6.1(v), 6.1(vi) (but only with respect to Significant Restricted Subsidiaries)
and 6.1(vii) (but only with respect to Significant Restricted Subsidiaries),
6.1(viii) and 5.1(iii) and 5.1(iv) ("covenant defeasance option"). Bucyrus may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
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If Bucyrus exercises its legal defeasance option, payment of
the Securities may not be accelerated because of an Event of Default. If
Bucyrus exercises its covenant defeasance option, payment of the Securities may
not be accelerated due to a failure to comply with any of Sections 4.4 through
4.16, inclusive, or the operation of Sections 6.1(iii), 6.1(iv), 6.1(v),
6.1(vi) (but only with respect to Significant Restricted Subsidiaries),
6.1(vii) (but only with respect to a Significant Subsidiaries), or 6.1(viii).
If Bucyrus exercises its legal defeasance option or its covenant defeasance
option, each Guarantor will be released from all of its obligations under
Article 11.
Upon satisfaction of the conditions set forth herein and upon
request of Bucyrus, the Trustee shall acknowledge in writing the discharge of
those obligations that Bucyrus terminates.
(c) Notwithstanding clauses (a) and (b) above, Bucyrus'
obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 7.7, 7.8, 8.3, 8.4, 8.5 and
8.6 shall survive until the Securities have been paid in full. Thereafter,
Bucyrus' obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. Bucyrus may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) Bucyrus irrevocably deposits in trust (the
"defeasance trust") with the Trustee money or U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide cash (without reinvestment) at such times and in such amounts
as will be sufficient to pay principal and interest on the Securities
(except Securities replaced pursuant to Section 2.7) to redemption or
maturity, as the case may be;
(2) Bucyrus delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and
interest when due on all outstanding Securities (except Securities
replaced pursuant to Section 2.7) to maturity or redemption, as the
case may be;
(3) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.1(vi) or
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(vii) with respect to Bucyrus occurs which is continuing at the end of
the period;
(4) no default exists under any Indebtedness of Bucyrus
or any Restricted Subsidiary;
(5) Bucyrus delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(6) Bucyrus shall have delivered to the Trustee an
Opinion of Counsel stating that the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit and defeasance and will be subject to Federal income tax on
the same amounts and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred
(and, in the case of legal defeasance only, such Opinion of Counsel
must be based on a ruling of the Internal Revenue Service or change in
applicable Federal income tax law);
(7) Bucyrus delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
as contemplated by this Article 8 have been complied with; and
(8) Bucyrus shall have paid or duly provided for payment
under terms mutually satisfactory to Bucyrus and the Trustee all
amounts then due to the Trustee pursuant to Section 7.7 hereof.
Opinions of Counsel required to be delivered under this
Section may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of Counsel may rely on certificates of Bucyrus
or government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact.
Before or after a deposit, Bucyrus may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article 3.
SECTION 8.3. Application of Trust Money. The Trustee
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to this Article Eight. It shall apply the deposited money and the
money from U.S. Government Obligations either directly or through the Paying
Agent (including Bucyrus acting as its own Paying Agent as the Trustee may
determine) and
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in accordance with this Indenture to the payment of principal of and interest
on the Securities.
SECTION 8.4. Repayment to Bucyrus. The Trustee and the
Paying Agent shall notify Bucyrus of any excess money or Securities held by
them at any time and shall promptly turn over to Bucyrus upon request any
excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to Bucyrus upon written request any money held
by them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to the money must look to Bucyrus for
payment as general creditors.
SECTION 8.5. Indemnity for Government Obligations.
Bucyrus shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations other
than any such tax, fee or other charge which by law is for the account of the
Holders of the defeased Securities; provided that the Trustee shall be entitled
to charge any such tax, fee or other charge to such Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in accordance
with this Article Eight by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, Bucyrus' obligations under this
Indenture and the Securities and the Guarantors' obligations under this
Indenture and the Guarantees shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Eight until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article Eight; provided, however, that, (a)
if Bucyrus has made any payment of interest on or principal of any Securities
following the reinstatement of their obligations, Bucyrus shall be subrogated
to the rights of the Holders of such Securities to receive such payment from
the money or U.S. Government Obligations held by the Trustee or Paying Agent
and (b) unless otherwise required by any legal proceeding or any order or
judgment of any court or governmental authority, the Trustee or Paying Agent
shall return all such money and U.S. Government Obligations to Bucyrus
promptly after receiving a written request therefor at any time, if such
reinstatement of Bucyrus' obligations has occurred and continues to be in
effect.
ARTICLE 9
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AMENDMENTS AND WAIVERS
SECTION 9.1. Without Consent of Holders. Bucyrus and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for the assumption by a successor
corporation of the obligations of Bucyrus under this Indenture in the
event of any transaction in compliance with Article 5 in which Bucyrus
is not the Surviving Person;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes
of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are as described in Section 163(f)(2)(B) of
the Code;
(4) to add Guarantees with respect to the Securities;
(5) to release Guarantors when permitted by this
Indenture;
(6) to secure the Securities;
(7) to add to the covenants of Bucyrus for the benefit of
the Holders or to surrender any right or power herein conferred upon
Bucyrus;
(8) to make any change that does not adversely affect the
rights of any Holder; or
(9) to comply with any requirements of the SEC in
connection with the qualification of this Indenture under the TIA.
After an amendment under this Section becomes effective,
Bucyrus shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this section.
SECTION 9.2. With Consent of Holders. Bucyrus and the
Trustee may amend this Indenture or the Securities with the consent of the
Holders of a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange for
the Securities) and any past default or compliance with any provisions may also
be waived with the consent of the Holders of a majority in principal
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amount of the Securities then outstanding. However, without the consent of
each Holder of outstanding Security affected thereby, no amendment may:
(1) reduce the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity
of any Security, or alter the provisions with respect to the
redemption or repurchase provisions of any Security or this Indenture
in a manner adverse to the holders of the Securities (other than the
provisions of this Indenture relating to any offer to purchase
required under Section 4.8 or 4.13);
(3) reduce the rate of or change the time for payment of
interest on any Security;
(4) waive a Default in the payment of principal or
interest on, the Securities (except that holders of at least a
majority in aggregate principal amount of the then outstanding
Securities may (x) rescind an acceleration of the Securities that
resulted from a non-payment default and (y) waive the payment default
that resulted from such acceleration);
(5) make any Security payable in money other than that
stated in the Securities;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of holders of
Securities to receive payments of principal of or interest on, the
Securities;
(7) waive a redemption payment with respect to any
Security;
(8) release any Guarantor from its Guarantee except in
compliance with this Indenture; or
(9) make any change in the foregoing amendment and waiver
provisions;
provided, further, however, that no such modification or amendment may, without
the consent of the holders of two-thirds of the aggregate principal amount of
Securities affected thereby, modify any of the provisions (including the
definitions thereto) under Section 4.8 in a manner materially adverse to the
Holders.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any
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proposed amendment. It is sufficient if such consent approves the substance of
the proposed amendment.
After an amendment under this Section becomes effective,
Bucyrus shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.4. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. An amendment
or waiver becomes effective once the requisite number of consents are received
by Bucyrus or the Trustee. After an amendment or waiver becomes effective, it
shall bind every Holder.
Bucyrus may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to give their consent or take any other
action described above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 120 days after
such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder
of the Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return it
to the Holder.
Alternatively, if Bucyrus or the Trustee so determines,
Bucyrus in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee
shall sign any amendment authorized pursuant to this Article 9 (other than
Section 9.1(4)) if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the
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Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment complies with the provisions of Article 9 of this
Indenture.
ARTICLE 10
GUARANTEES
SECTION 10.1. Guarantees. Each Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns as primary obligor and
not merely as a surety, on an unsecured senior basis the performance and
punctual payment when due, whether at Stated Maturity, by acceleration or
otherwise, of all obligations of Bucyrus under this Indenture and the
Securities whether for payment of principal of or interest on the Securities,
expenses, indemnification or otherwise (all such obligations guaranteed by the
Guarantors being herein called the "Guaranteed Obligations"). The Guarantors
will agree to pay, in addition to the amount stated above, any and all expenses
(including reasonable counsel fees and expenses) incurred by the Trustee or the
Holders in enforcing any rights under the Guarantees. Each Guarantor further
agrees that the Guaranteed Obligations may be extended or renewed, in whole or
in part, without notice or further assent from such Guarantor and that such
Guarantor will remain bound under this Article 10 notwithstanding any extension
or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of, payment from
and protest to Bucyrus of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Securities or the Guaranteed Obligations. The obligations of each
Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against Bucyrus or any other Person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Guaranteed
Obligations; or (f) any change in the ownership of such Guarantor.
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Each Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Guaranteed Obligations.
Except as expressly set forth in Sections 8.2, 10.2 and 10.6,
the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of
the Guaranteed Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor herein shall not be discharged
or impaired or otherwise affected by the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any remedy under this Indenture,
the Securities or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Guaranteed Obligations, or by any other act or thing or
omission or delay to do any other act or thing which may or might in any manner
or to any extent vary the risk of such Guarantor or would otherwise operate as
a discharge of such Guarantor as a matter of law or equity.
Each Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Guaranteed Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of Bucyrus or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of Bucyrus to pay any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any
Guaranteed Obligation, each Guarantor hereby promises to and will, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum of (i) the unpaid
amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such
Guaranteed Obligations (but only to the extent not prohibited by law) and (iii)
all other monetary Guaranteed Obligations of Bucyrus to the Holders and the
Trustee.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any Guaranteed Obligations
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guaranteed hereby until payment in full of all Guaranteed Obligations. Each
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Guaranteed
Obligations hereby may be accelerated as provided in Article 6 for the purposes
of such Guarantor's Guarantee herein, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Guaranteed
Obligations, and (y) in the event of any declaration of acceleration of
Guaranteed Obligations as provided in Article 6, the Obligations (whether or
not due and payable) shall forthwith become due and payable by such Guarantor
for the purposes of this Section.
Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section.
SECTION 10.2. Limitation on Liability. Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the obligations guaranteed hereunder by any Guarantor shall
not exceed the maximum amount that can be hereby guaranteed without rendering
this Indenture, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally. To effectuate the foregoing
intention, the obligations of each Guarantor shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations hereunder, result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal, state or foreign law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in an amount based on the consolidated net worth of
each Guarantor.
SECTION 10.3. Successors and Assigns. This Article Ten
shall be binding upon each Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.4. No Waiver. Neither a failure nor a delay on
the part of either the Trustee or the Holders in
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exercising any right, power or privilege under this Article 11 shall operate as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights,
remedies and benefits of the Trustee and the Holders herein expressly specified
are cumulative and not exclusive of any other rights, remedies or benefits
which either may have under this Article Ten at law, in equity, by statute or
otherwise.
SECTION 10.5. Modification. No modification, amendment or
waiver of any provision of this Article Ten, nor the consent to any departure
by any Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice or demand in the same, similar or
other circumstances.
SECTION 10.6. Release of Guarantor. A Guarantor may, by
execution and delivery to the Trustee of a supplemental indenture satisfactory
to the Trustee, be released from its Guarantee upon the sale of all of its
Capital Stock, or all or substantially all of the assets of the applicable
Guarantor, to any Person that is not a Subsidiary of Bucyrus, if such sale is
made in compliance with this Indenture.
SECTION 10.7. Execution of Supplemental Indenture for
Future Guarantors. Each Subsidiary which is required to become a Guarantor
pursuant to Section 4.5 shall, and Bucyrus shall cause each such Subsidiary to,
promptly execute and deliver to the Trustee a supplemental indenture in the
form of Exhibit F hereto pursuant to which such Subsidiary shall become a
Guarantor under this Article Ten and shall guarantee the Guaranteed
Obligations. Concurrently with the execution and delivery of such supplemental
indenture, Bucyrus shall deliver to the Trustee an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and that, subject to the application of
bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other
similar laws relating to creditors' rights generally and to the principles of
equity, whether considered in a proceeding at law or in equity, the Guarantee
of such Guarantor is a valid and legally binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms.
ARTICLE 11
MISCELLANEOUS
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SECTION 11.1. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control. If this Indenture excludes any provision of
the TIA that is required to be included, such provision shall be deemed
included herein.
SECTION 11.2. Notices. Any notice or communication shall
be in writing and delivered in person, by overnight courier or facsimile (if to
Bucyrus, with receipt confirmed by an Officer) or mailed by first-class mail
addressed as follows:
If to Bucyrus or any Guarantor:
Bucyrus International, Inc.
0000 Xxxxxxxxx Xxxxxx
P.O. Box 500
South Milwaukee, Wisconsin 53172
Attention: Chief Financial Officer
If to the Trustee:
c/x Xxxxxx Trust and Savings Bank
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bucyrus or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed or sent by overnight
courier or facsimile to a Holder shall be sent to the Holder at the Holder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so sent within the time prescribed.
Failure to send 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 sent in the manner provided above, it is duly
given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice.
SECTION 11.3. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or
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the Securities. Bucyrus, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by Bucyrus to the Trustee to take
or refrain from taking any action under this Indenture, Bucyrus shall furnish
to the Trustee to the extent required by the TIA or this Indenture:
(1) an Officers' Certificate (which in connection with the
original issuance of the Securities need only be executed by one
Officer for Bucyrus) in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 11.5. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such individual,
he 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 complied with; and
(4) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with;
provided, that an Opinion of Counsel can rely as to matters of fact on
an Officers' Certificate or a certificate of a public official.
SECTION 11.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by Bucyrus or
by any Person directly or indirectly controlling or controlled by or under
direct or
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indirect common control with Bucyrus shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee actually knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at
the time shall be considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders.
The Trustee shall provide Bucyrus reasonable notice of such rules; provided
that neither prior notice to the Company of such rules nor prior approval by
the Company of such rules shall be a requirement for their effectiveness. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.8. Legal Holidays. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.9. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York without giving effect to applicable principles of
conflict of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 11.10. No Recourse Against Others. No recourse for
the payment of the principal of or interest on any of the Securities or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of Bucyrus or any Guarantor in this
Indenture, or in any of the Securities or the Guarantees or because of the
creation of any Indebtedness represented hereby and thereby, shall be had
against any incorporator, stockholder, officer, director, employee or
controlling person of Bucyrus or any of its Subsidiaries. Each Holder, by
accepting a Security, waives and releases all such liability. The waiver and
release shall be part of the consideration for the issuance of the Securities.
SECTION 11.11. Successors. All agreements of Bucyrus in
this Indenture and the Securities shall bind Bucyrus' successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any number of copies
of this Indenture. Each signed copy
86
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shall be an original, but all of them together represent the same agreement.
One signed copy is enough to prove this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION 11.14. Severability Clause. In case any provision
in this Indenture or in the Securities 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.
87
S-1
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
BUCYRUS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Smoke
----------------------------
Name: Xxxxxx X. Smoke
Title: Vice President and
Chief Financial Officer
GUARANTORS:
BOONVILLE MINING SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President -
Treasurer and Assistant
Secretary
MINSERCO, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President -
Treasurer and Assistant
Secretary
VON'S WELDING, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President -
Treasurer and Assistant
Secretary
88
S-2
XXXXXX TRUST AND SAVINGS BANK, as
Trustee
By: /s/ X. X. Xxxxxxx
-------------------------------
Name: X. X. Xxxxxxx
Title: Assistant Vice President
89
EXHIBIT A
FACE OF SECURITY
No.
CUSIP No.
BUCYRUS INTERNATIONAL, INC.
9-3/4% Senior Notes Due 2007
BUCYRUS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), promises to pay to Cede & Co., or registered assigns, the principal
sum of [ ] Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1.
Additional provisions of this Security are set forth on the
reverse side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by a duly authorized officer.
BUCYRUS INTERNATIONAL, INC.
By: _____________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Xxxxxx Trust and Savings Bank, as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.
By: XXXXXX TRUST AND SAVINGS BANK,
as Trustee
________________________________
Authorized Signatory
Date of Authentication:
A-1
90
REVERSE OF SECURITY
9-3/4% SENIOR NOTES DUE 2007
1. Interest
BUCYRUS INTERNATIONAL, INC., a Delaware corporation (such
entity, and its successors and assigns under the Indenture, the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semiannually on March 15
and September 15 of each year, commencing March 15, 1998. Interest on the
Securities will accrue from the most recent date on which interest has been
paid or, if no interest has been paid, from September 24, 1997. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. The
Company shall pay interest on overdue principal at 1% per annum in excess of
the rate borne by the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the record date immediately preceding the interest
payment date even if Securities are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined
in the Registration Agreement)) after the record date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal and interest by its check
payable in such U.S. Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder's registered address.
3. Paying Agent and Registrar
Initially, Xxxxxx Trust and Savings Bank, a national banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Company may act as Paying Agent, Registrar, co-Registrar
or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of September 24, 1997 (the "Indenture"), among the Company, the Guarantors
party thereto and the Trustee. This Security is one of a duly authorized issue
of Initial Securities of the Company designated as its 9-3/4% Senior Notes Due
2007 (the
A-2
91
"Initial Securities"). The Securities include the Initial Securities and the
Exchange Securities (as defined in the Indenture) issued in exchange for the
Initial Securities pursuant to the Registration Agreement. The Initial
Securities and the Exchange Securities are treated as a single class of
securities under the Indenture. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect
on the date of the Indenture (the "TIA"). Terms defined in the Indenture and
not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms. Any conflict between
this Security and the Indenture will be governed by the Indenture.
The Securities are unsecured senior obligations of the Company
limited to $150,000,000 aggregate principal amount (subject to Section 2.7 of
the Indenture). The Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the existence of
liens, the payment of dividends on, and redemption of, the Capital Stock of the
Company and its Restricted Subsidiaries, the sale or transfer of assets and
Subsidiary stock, the issuance or sale of Capital Stock of Restricted
Subsidiaries, the investments of the Company and its Restricted Subsidiaries,
consolidations, mergers and transfers of all or substantially all the assets of
the Company, and transactions with Affiliates. In addition, the Indenture
limits the ability of the Company and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
To guarantee the due and punctual payment of the principal,
premium and interest, if any, on the Securities and all other amounts payable
by the Company under the Indenture and the Securities when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Securities and the Indenture, the Guarantors have
unconditionally guaranteed the obligations of the Company under the Indenture
and the Securities on an unsecured senior basis pursuant to the terms of the
Indenture.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may
not be redeemed at the option of the Company prior to, September 15, 2002.
Thereafter, the Securities will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time, at the following redemption
prices (expressed in percentages of principal amount), plus accrued and unpaid
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an interest
payment date that is on or prior to
A-3
92
the date fixed for redemption) if redeemed during the 12-month period
commencing on September 15 of the years set forth below:
Period Percentage
------ ----------
2002 104.875%
2003 103.250%
2004 101.625%
2005 and thereafter 100.000%
In addition, at any time and from time to time on or prior to
September 15, 2000, the Company may redeem Securities with the net cash
proceeds of one or more Public Equity Offerings following which there is a
Public Market, at a redemption price equal to 109.75% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on an interest payment date that is on or prior to the
dated fixed for redemption); provided, however, that at least 66___% of the
original aggregate principal amount of the Securities must remain outstanding
after each such redemption (other that any Securities owned by the Company or
any of its Subsidiaries) and such redemption shall be effected within 60 days
of the consummation of the latest Public Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date
interest ceases to accrue on such Securities (or such portions thereof) called
for redemption. If a notice or communication is sent in the manner provided in
the Indenture, it is duly given, whether or not the addressee receives it.
Failure to send a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
7. Change of Control
Upon a Change of Control, each Holder of Securities will have
the right to require the Company to purchase all or any part of the Securities
of such Holder at a purchase price in cash equal to 101% of the principal
amount of the Securities to be purchased plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on an interest payment date that
is on or prior to the date fixed for redemption) as provided in, and subject to
the terms of, the Indenture.
8. Registration Agreement
A-4
93
The holder of this Security is entitled to the benefits of a
Registration Agreement, dated as of September 24, 1997, among the Company, the
Guarantors and the Initial Purchasers named therein (as such may be amended
from time to time, the "Registration Agreement"). Capitalized terms used in
this subsection but not defined herein have the meanings assigned to them in
the Registration Agreement.
If (i) within 60 days after the Issue Date, neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement has
been filed with the Commission; (ii) within 150 days after the Issue Date, the
Exchange Offer Registration Statement has not been declared effective; (iii)
within 180 days after the Issue Date, neither the Exchange Offer has been
consummated nor the Shelf Registration Statement has been declared effective;
or (iv) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable (subject, in the case of the Shelf
Registration Statement, to the exceptions set forth in Section 3(b)(i) or (ii)
of the Registration Agreement) in connection with resales of Initial Securities
or Exchange Securities in accordance with and during the periods specified in
Sections 2(e) and 3(b) of the Registration Agreement (each such event referred
to in clauses (i) through (iv), a "Registration Default"), liquidated damages
("Liquidated Damages") will accrue on the Initial Securities and the Exchange
Securities from and including the date on which any such Registration Default
shall occur to but excluding the date on which all Registration Defaults have
been cured. Liquidated Damages will accrue at a rate of $0.05 per week per
$1,000 principal amount of the Securities during the 90-day period immediately
following the occurrence of any Registration Default and shall increase $0.05
per week per $1,000 principal amount of the Securities at the end of each
subsequent 90-day period, but in no event shall such Liquidated Damages exceed
$0.25 per week per $1,000 principal amount of Securities.
9. Denominations; Transfer; Exchange
The Securities are in registered form, without coupons, and in
denominations of $1,000 and integral multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture, including any transfer tax or other similar
governmental charge payable in connection therewith. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or 15 days before an
interest payment date.
X-0
00
00. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back
to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the consent of the Holders
of at least a majority in principal amount outstanding of the Securities and
(ii) any past default or noncompliance with any provision may be waived with
the consent of the Holders of a majority in principal amount outstanding of the
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Company, the Guarantors and the Trustee may
amend the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, to comply with Article 5 of the Indenture, to provide for
uncertificated Securities in addition to or in place of certificated
Securities, to add Guarantees with respect to the Securities, to release
Guarantors when permitted by the Indenture, to secure the Securities, to add
additional covenants or surrender rights and powers conferred on the Company,
to make any change that does not adversely affect the rights of any Holder or
to comply with any request of the SEC in connection with qualifying the
Indenture under the TIA.
14. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities then
outstanding may declare all the Securities to be due and payable. Certain
events of bankruptcy or insolvency are Events of Default which will result in
the Securities being due
A-6
95
and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it is offered reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of
the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default (except
a Default in payment of principal or interest) if and so long as a committee of
its trust officers determines that withholding notice is in the interest of the
Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may
otherwise deal with the Company or any of its Affiliates with the same rights
it would have if it were not Trustee.
16. No Recourse Against Others
No recourse for the payment of the principal of, premium, if
any, or interest on any of the Securities or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company or any Guarantor in the Indenture, or in
any of the Securities or Guarantees or because of the creation of any
Indebtedness represented hereby and thereby, shall be had against any
incorporator, stockholder, officer, director, employee, agent or controlling
person of the Company or any of its Subsidiaries. Each Holder, by accepting a
Security, waives and releases all such liability.
17. Guarantees
This Security will be entitled to the benefits of certain
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and
the Holders.
18. Governing Law
The Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflict of laws to the extent that the
application of the laws of another jurisdiction would be required thereby.
X-0
00
00. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
20. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gift to Minors Act).
21. 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 Securities and has directed the Trustee to 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 Securities 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 to the Holder a copy of the Indenture. Requests may be made
as follows:
Bucyrus International, Inc.
0000 Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
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97
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_________________________________________________________________
(Print or type assignee's name, address and zip code)
_________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________ agent to transfer this Security 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 other side of this Security.
Signature Guarantee: _______________
(Signature must be guaranteed)
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.
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by
the Commission of the effectiveness of a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") covering resales of
this Security (which effectiveness shall not have been suspended or terminated
at the date of the transfer) and (ii) two years from the Issue Date, the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer:
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the
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98
Trustee a signed letter containing certain representations and
agreements (the form of which letter can be obtained from the
Trustee); or
(4) __ outside the United states to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933, as amended;
or
(5) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act of 1933, as amended; or
(6) __ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if
item (3), (4), (5) or (7) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Securities, in their sole
discretion, such written legal opinions, certifications (including an
investment letter in the case of box (3) or (4)) and other information as the
Trustee or the Company has reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or
Registrar shall not be obligated to register this Security in the name of any
person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.14 of the Indenture
shall have been satisfied.
Dated: ____________________ Signed:_________________________
(Sign exactly as name
appears on the otherside
of this Security)
Signature Guarantee: ___________________________________________
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99
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.
A-11
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated: ______________ _______________________________________
NOTICE: To be executed by an executive
officer
A-12
101
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.8 or 4.13 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.8 or 4.13 of the Indenture,
state the amount: $
Date: ______________ Your Signature: _________________
(Sign exactly as your name appears on
the other side of the Security)
Signature Guarantee: ________________________________________
(Signature must be guaranteed)
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.
X-00
000
XXXXXXX X
FACE OF SECURITY
No.
CUSIP No.
BUCYRUS INTERNATIONAL, INC.
9-3/4% Senior Notes Due 2007, SERIES B
BUCYRUS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), promises to pay to Cede & Co., or registered assigns, the principal
sum of [ ] Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1.
Additional provisions of this Security are set forth on the
reverse side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by a duly authorized officer.
BUCYRUS INTERNATIONAL, INC.
By: ______________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Xxxxxx Trust and Savings Bank, as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.
By: XXXXXX TRUST AND SAVINGS BANK,
as Trustee
______________________________
Authorized Signatory
Date of Authentication:
B-1
103
REVERSE OF SECURITY
9-3/4% SENIOR NOTES DUE 2007, SERIES B
1. Interest
BUCYRUS INTERNATIONAL, INC., a Delaware corporation (such
entity, and its successors and assigns under the Indenture, the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semiannually on March 15
and September 15 of each year, commencing March 15, 1998. Interest on the
Securities will accrue from the most recent date on which interest has been
paid or, if no interest has been paid, from September 24, 1997. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. The
Company shall pay interest on overdue principal at 1% per annum in excess of
the rate borne by the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the record date immediately preceding the interest
payment date even if Securities are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined
in the Registration Agreement)) after the record date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal and interest by its check
payable in such U.S. Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder's registered address.
3. Paying Agent and Registrar
Initially, Xxxxxx Trust and Savings Bank, a national banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Company may act as Paying Agent, Registrar, co-Registrar
or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of September 24, 1997 (the "Indenture"), among the Company, the Guarantors
party thereto and the Trustee. This Security is one of a duly authorized issue
of Exchange Securities of the Company designated as its 9-3/4% Senior Notes Due
2007 (the
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104
"Exchange Securities"). The Securities include the Initial Securities (as
defined in the Indenture) and the Exchange Securities issued in exchange for
the Initial Securities pursuant to the Registration Agreement. The Initial
Securities and the Exchange Securities are treated as a single class of
securities under the Indenture. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect
on the date of the Indenture (the "TIA"). Terms defined in the Indenture and
not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms. Any conflict between
this Security and the Indenture will be governed by the Indenture.
The Securities are unsecured senior obligations of the Company
limited to $150,000,000 aggregate principal amount (subject to Section 2.7 of
the Indenture). The Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the existence of
liens, the payment of dividends on, and redemption of, the Capital Stock of the
Company and its Restricted Subsidiaries, the sale or transfer of assets and
Subsidiary stock, the issuance or sale of Capital Stock of Restricted
Subsidiaries, the investments of the Company and its Restricted Subsidiaries,
consolidations, mergers and transfers of all or substantially all the assets of
the Company, and transactions with Affiliates. In addition, the Indenture
limits the ability of the Company and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
To guarantee the due and punctual payment of the principal,
premium and interest, if any, on the Securities and all other amounts payable
by the Company under the Indenture and the Securities when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Securities and the Indenture, the Guarantors have
unconditionally guaranteed the obligations of the Company under the Indenture
and the Securities on an unsecured senior basis pursuant to the terms of the
Indenture.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may
not be redeemed at the option of the Company prior to, September 15, 2002.
Thereafter, the Securities will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time, at the following redemption
prices (expressed in percentages of principal amount), plus accrued and unpaid
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an interest
payment date that is on or prior to
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the date fixed for redemption) if redeemed during the 12-month period
commencing on September 15 of the years set forth below:
Period Percentage
------ ----------
2002 104.875%
2003 103.250%
2004 101.625%
2005 and thereafter 100.000%
In addition, at any time and from time to time on or prior to
September 15, 2000, the Company may redeem Securities with the net cash
proceeds of one or more Public Equity Offerings following which there is a
Public Market, at a redemption price equal to 109.75% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on an interest payment date that is on or prior to the
dated fixed for redemption); provided, however, that at least 6___% of the
original aggregate principal amount of the Securities must remain outstanding
after each such redemption (other that any Securities owned by the Company or
any of its Subsidiaries) and such redemption shall be effected within 60 days
of the consummation of the latest Public Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date
interest ceases to accrue on such Securities (or such portions thereof) called
for redemption. If a notice or communication is sent in the manner provided in
the Indenture, it is duly given, whether or not the addressee receives it.
Failure to send a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
7. Change of Control
Upon a Change of Control, each Holder of Securities will have
the right to require the Company to purchase all or any part of the Securities
of such Holder at a purchase price in cash equal to 101% of the principal
amount of the Securities to be purchased plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on an interest payment date that
is on or prior to the date fixed for redemption) as provided in, and subject to
the terms of, the Indenture.
8. Denominations; Transfer; Exchange
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The Securities are in registered form, without coupons, and in
denominations of $1,000 and integral multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture, including any transfer tax or other similar
governmental charge payable in connection therewith. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or 15 days before an interest payment
date.
9. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back
to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the consent of the Holders
of at least a majority in principal amount outstanding of the Securities and
(ii) any past default or noncompliance with any provision may be waived with
the consent of the Holders of a majority in principal amount outstanding of the
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Company, the Guarantors and the Trustee may
amend the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, to comply with Article 5 of the Indenture, to provide for
uncertificated Securities in addition to or in place of certificated
Securities, to add Guarantees with respect to the
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Securities, to release Guarantors when permitted by the Indenture, to secure
the Securities, to add additional covenants or surrender rights and powers
conferred on the Company, to make any change that does not adversely affect the
rights of any Holder or to comply with any request of the SEC in connection
with qualifying the Indenture under the TIA.
13. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities then
outstanding may declare all the Securities to be due and payable. Certain
events of bankruptcy or insolvency are Events of Default which will result in
the Securities being due and payable immediately upon the occurrence of such
Events of Default.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it is offered reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of
the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default (except
a Default in payment of principal or interest) if and so long as a committee of
its trust officers determines that withholding notice is in the interest of the
Holders.
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may
otherwise deal with the Company or any of its Affiliates with the same rights
it would have if it were not Trustee.
15. No Recourse Against Others
No recourse for the payment of the principal of, premium, if
any, or interest on any of the Securities or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company or any Guarantor in the Indenture, or in
any of the Securities or Guarantees or because of the creation of any
Indebtedness represented hereby and thereby, shall be had against any
incorporator, stockholder, officer, director, employee, agent or controlling
person of the Company or any of its Subsidiaries. Each Holder, by accepting a
Security, waives and releases all such liability.
16. Guarantees
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This Security will be entitled to the benefits of certain
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and
the Holders.
17. Governing Law
The Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflict of laws to the extent that the
application of the laws of another jurisdiction would be required thereby.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gift to Minors Act).
20. 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 Securities and has directed the Trustee to 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 Securities 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 to the Holder a copy of the Indenture. Requests may be made
as follows:
Bucyrus International, Inc.
0000 Xxxxxxxxx Xxxxxx
P.O. Box 500
South Milwaukee, Wisconsin 53172
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
___________________________________________________________________
(Print or type assignee's name, address and zip code)
___________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________ agent to transfer this Security 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 other side of this Security.
Signature Guarantee: _______________
(Signature must be guaranteed)
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.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.8 or 4.13 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.8 or 4.13 of the Indenture,
state the amount: $
Date: ______________ Your Signature: ____________________
(Sign exactly as your name appears on
the other side of the Security)
Signature Guarantee: ________________________________________
(Signature must be guaranteed)
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.
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EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[ ], [ ]
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of 9-3/4% Senior
Notes Due 2007 (the "Securities") of Bucyrus International, Inc., a Delaware
corporation (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum
(the "Offering Memorandum"), dated September 17, 1997, relating to the
Securities and such other information as we deem necessary in order to
make our investment decision. We acknowledge that we have read and
agreed to the matters stated in the section entitled "Notice to
Investors" of such Offering Memorandum.
2. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth
in the Indenture relating to the Securities (the "Indenture") as
described in the Offering Memorandum and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the
Securities except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act"), and
all applicable State securities laws.
3. We understand that the offer and sale of the
Securities have not been registered under the Securities Act, and that
the Securities may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons 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 any Securities, we will do so only (i) to the Company
or any subsidiary thereof, (ii) inside the United States in accordance
with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined in Rule 144A promulgated under the Securities Act),
(iii) inside the United States 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 the
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112
Trustee (as defined in the Indenture) a signed letter containing
certain representations and agreements relating to the restrictions on
transfer of the Securities (the form of which letter can be obtained
from the Trustee), (iv) outside the United States in accordance with
Rule 904 of Regulation S promulgated under the Securities Act to
non-U.S. persons, (v) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (vi)
pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing any of
the Securities from us a notice advising such purchaser that resales
of the Securities are restricted as stated herein.
4. We understand that, on any proposed resale of any
Securities, we will be required to furnish to the Trustee and the
Company such certification, legal opinions and other information as
the Trustee and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further
understand that the Securities purchased by us will bear a legend to
the foregoing effect.
5. 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 Securities, and we and any accounts for
which we are acting are each able to bear the economic risk of our or
their investment, as the case may be.
6. We are acquiring the Securities purchased by us for
our 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.
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You, the Company, the Trustee and others 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 proceeding
or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ____________________________
Name:
Title:
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EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ], [ ]
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx 00xx
Xxxxx Xxxxxxx, Xxxxxxxx 00000
Re: Bucyrus International, Inc. (the "Company")
9-3/4% Senior Notes Due 2007(the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $[ ]
aggregate principal amount of the Securities, we confirm that such sale has
been effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Securities was not made to a person
in the United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
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You, the Company and counsel for 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.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: _________________________
Authorized Signature
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EXHIBIT E
GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of
this Security the cash payments in United States dollars of principal of and
interest on this Security in the amounts and at the times when due and interest
on the overdue principal of and interest on this Security, if lawful, and the
payment or performance of all other obligations of the Company under the
Indenture (as defined below) or the Securities, to the Holder of this Security
and the Trustee, all in accordance with and subject to the terms and
limitations of this Security, Article 10 of the Indenture and this Guarantee.
This Guarantee will become effective in accordance with Article 10 of the
Indenture and its terms shall be evidenced therein. The validity and
enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Security. Terms used but not defined herein
shall have the meanings ascribed to them in the Indenture dated as of September
24, 1997, among Bucyrus International, Inc., a Delaware corporation, as issuer
(the "Company"), the Guarantors party thereto and Xxxxxx Trust and Savings
Bank, as trustee (the "Trustee"), as amended or supplemented from time to time
(the "Indenture").
The obligations of the undersigned to the Holders of
Securities and to the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article 10 of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Guarantee and all of the other
provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW. Each Guarantor hereby agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the Indenture.
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117
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to be duly
executed.
BOONVILLE MINING SERVICES, INC.
By: _____________________________
Name:
Title:
MINSERCO, INC.
By: _____________________________
Name:
Title:
VON'S WELDING, INC.
By: _____________________________
Name:
Title:
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