1
Exhibit 4.1
PENN HOLDINGS, INC.
THE GUARANTORS named herein
and
THE BANK OF NEW YORK, as Trustee
INDENTURE
Dated as of June 8, 1998
$100,000,000
9-7/8% Senior Notes due 2008
2
CROSS-REFERENCE TABLE
1 TIA Indenture
2 Section Section
3 ------- -------
4 310 (a)(1)............................................................... 7.10
5 (a)(2)............................................................... 7.10
6 (a)(3)............................................................... N.A.
7 (a)(4)............................................................... N.A.
8 (b).................................................................. 7.08; 7.10; 11.02
9 (b)(1)............................................................... 7.10
10 (b)(9)............................................................... 7.10
11 (c).................................................................. N.A.
12 311 (a).................................................................. 7.11
13 (b).................................................................. 7.11
14 (c).................................................................. N.A.
15 312 (a).................................................................. 2.05
16 (b).................................................................. 11.03
17 (c).................................................................. 11.03
18 313 (a).................................................................. 7.06
19 (b)(1)............................................................... 7.06
20 (b)(2)............................................................... 7.06
21 (c).................................................................. 11.02
22 (d).................................................................. 7.06
23 314 (a).................................................................. 4.02; 4.04; 11.02
24 (b).................................................................. N.A.
25 (c)(1)............................................................... 11.04; 11.05
26 (c)(2)............................................................... 11.04; 11.05
27 (c)(3)............................................................... N.A.
28 (d).................................................................. N.A.
29 (e).................................................................. 11.05
30 (f).................................................................. N.A.
31 315 (a).................................................................. 7.01; 7.02
32 (b).................................................................. 7.05; 11.02
33 (c).................................................................. 7.01
34 (d).................................................................. 6.05; 7.01; 7.02
35 (e).................................................................. 6.11
36 316 (a) (last sentence).................................................. 11.06
37 (a)(1)(A)............................................................ 7.01; 7.02; 8.02
38 (a)(1)(B)............................................................ 6.04
39 (a)(2)............................................................... 8.02
40 (b).................................................................. 6.08
41 (c).................................................................. 8.04
42 317 (a)(1)............................................................... 6.08
43 (a)(2)............................................................... 6.09
44 (b).................................................................. 7.12
45 318 (a).................................................................. 11.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...............................................................1
SECTION 1.02. Other Definitions........................................................23
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................24
SECTION 1.04. Rules of Construction....................................................24
ARTICLE TWO
THE NOTES
SECTION 2.01. Amount of Notes..........................................................25
SECTION 2.02. Form and Dating..........................................................25
SECTION 2.03. Execution and Authentication.............................................26
SECTION 2.04. Registrar and Paying Agent...............................................27
SECTION 2.05. Paying Agent To Hold Money in Trust......................................27
SECTION 2.06. Noteholder Lists.........................................................28
SECTION 2.07. Transfer and Exchange....................................................28
SECTION 2.08. Replacement Notes........................................................29
SECTION 2.09. Outstanding Notes........................................................29
SECTION 2.10. Treasury Notes...........................................................30
SECTION 2.11. Temporary Notes..........................................................30
SECTION 2.12. Cancellation.............................................................30
SECTION 2.13. Defaulted Interest.......................................................30
SECTION 2.14. CUSIP Number.............................................................31
SECTION 2.15. Deposit of Moneys........................................................31
SECTION 2.16. Book-Entry Provisions for Global Notes...................................31
SECTION 2.17. Special Transfer Provisions..............................................33
SECTION 2.18. Computation of Interest..................................................35
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee...................................36
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.............................36
SECTION 3.03. Notice of Redemption.....................................................36
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SECTION 3.04. Effect of Notice of Redemption...........................................37
SECTION 3.05. Deposit of Redemption Price..............................................37
SECTION 3.06. Notes Redeemed in Part...................................................38
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.........................................................38
SECTION 4.02. Reports to Holders.......................................................39
SECTION 4.03. Waiver of Stay, Extension or Usury Laws..................................39
SECTION 4.04. Compliance Certificate...................................................40
SECTION 4.05. Taxes....................................................................40
SECTION 4.06. Limitation on Additional Indebtedness....................................40
SECTION 4.07. Limitation on Restricted Payments........................................41
SECTION 4.08. Limitations on Liens.....................................................43
SECTION 4.09. Limitation on Transactions with Affiliates...............................44
SECTION 4.10. Limitation on Creation of Subsidiaries...................................45
SECTION 4.11. Limitation on Certain Asset Sales........................................45
SECTION 4.12. Limitation on Capital Stock of Restricted Subsidiaries...................46
SECTION 4.13. Limitation on Sale and Lease-Back Transactions...........................47
SECTION 4.14. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries..........................................................47
SECTION 4.15. Payments for Consent.....................................................48
SECTION 4.16. Legal Existence..........................................................48
SECTION 4.17. Change of Control Offer..................................................48
SECTION 4.18. [Intentionally Omitted]..................................................50
SECTION 4.19. Maintenance of Properties; Insurance; Books and Records; Compliance
with Law..............................................................50
SECTION 4.20. Further Assurance to the Trustee.........................................51
SECTION 4.21. Limitation on Conduct of Business........................................51
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Consolidation, Amalgamation, Merger and Sale of Assets....52
SECTION 5.02. Successor Person Substituted.............................................53
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ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default........................................................53
SECTION 6.02. Acceleration.............................................................56
SECTION 6.03. Other Remedies...........................................................57
SECTION 6.04. Waiver of Past Defaults and Events of Default............................57
SECTION 6.05. Control by Majority......................................................58
SECTION 6.06. Limitation on Suits......................................................58
SECTION 6.07. No Personal Liability of Directors, Officers, Employees and
Stockholders..........................................................58
SECTION 6.08. Rights of Holders To Receive Payment.....................................59
SECTION 6.09. Collection Suit by Trustee...............................................59
SECTION 6.10. Trustee May File Proofs of Claim.........................................59
SECTION 6.11. Priorities...............................................................60
SECTION 6.12. Undertaking for Costs....................................................60
SECTION 6.13. Restoration of Rights and Remedies.......................................60
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee........................................................61
SECTION 7.02. Rights of Trustee........................................................62
SECTION 7.03. Individual Rights of Trustee.............................................63
SECTION 7.04. Trustee's Disclaimer.....................................................63
SECTION 7.05. Notice of Defaults.......................................................63
SECTION 7.06. Reports by Trustee to Holders............................................63
SECTION 7.07. Compensation and Indemnity...............................................64
SECTION 7.08. Replacement of Trustee...................................................65
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc..........................66
SECTION 7.10. Eligibility; Disqualification............................................66
SECTION 7.11. Preferential Collection of Claims Against Issuer.........................66
SECTION 7.12. Paying Agents............................................................66
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders...............................................67
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SECTION 8.02. With Consent of Holders..................................................68
SECTION 8.03. Compliance with Trust Indenture Act......................................69
SECTION 8.04. Revocation and Effect of Consents........................................69
SECTION 8.05. Notation on or Exchange of Notes.........................................70
SECTION 8.06. Trustee To Sign Amendments, etc..........................................70
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture...................................................71
SECTION 9.02. Legal Defeasance.........................................................71
SECTION 9.03. Covenant Defeasance......................................................72
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance..........................72
SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in Trust;
Other Miscellaneous Provisions........................................74
SECTION 9.06. Reinstatement............................................................75
SECTION 9.07. Moneys Held by Paying Agent..............................................75
SECTION 9.08. Moneys Held by Trustee...................................................75
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee................................................................76
SECTION 10.02. Execution and Delivery of Guarantee......................................78
SECTION 10.03. Limitation of Guarantee..................................................78
SECTION 10.04. Additional Guarantors....................................................79
SECTION 10.05. Release of Guarantor.....................................................79
SECTION 10.06. Waiver of Subrogation....................................................80
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.............................................80
SECTION 11.02. Notices..................................................................80
SECTION 11.03. Communications by Holders with Other Holders.............................82
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.......................82
SECTION 11.05. Statements Required in Certificate and Opinion...........................82
SECTION 11.06. Rules by Trustee and Agents..............................................83
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SECTION 11.07. Business Days; Legal Holidays............................................83
SECTION 11.08. Governing Law............................................................83
SECTION 11.09. Submission to Jurisdiction; Waiver of Immunities.........................83
SECTION 11.10. No Adverse Interpretation of Other Agreements............................84
SECTION 11.11. No Recourse Against Others...............................................84
SECTION 11.12. Successors...............................................................84
SECTION 11.13. Multiple Counterparts....................................................84
SECTION 11.14. Table of Contents, Headings, etc.........................................85
SECTION 11.15. Separability.............................................................85
EXHIBITS
Exhibit A. Form of Note............................................................A-1
Exhibit B. Form of Legend for Rule 144A............................................B-1
Exhibit C. Form of Legend and Assignment Language for Regulation S Note............C-1
Exhibit D. Form of Legend for Global Note..........................................D-1
Exhibit E. Form of Certificate to Be Delivered in Connection with Transfers to
Non-QIB Accredited Investors.........................................E-1
Exhibit F. Form of Certificate to Be Delivered in Connection with Transfers
Pursuant to Regulation S.............................................F-1
Exhibit G. Form of Guarantee.......................................................G-1
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8
INDENTURE, dated as of June 8, 1998, among PEN HOLDINGS, INC.
a corporation incorporated under the laws of Tennessee, as issuer (the
"Issuer"), the Guarantors (as hereinafter defined) and THE BANK OF NEW YORK, a
New York 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 the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary) existing at the time such Person becomes
a Restricted Subsidiary or is merged into or consolidated with the Issuer or a
Restricted Subsidiary or which is assumed in connection with the acquisition of
assets from such Person and, in each case, not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary or such merger, consolidation or acquisition.
"Additional Interest" means additional interest on the Notes
which the Issuer and the Guarantors, jointly and severally, agree to pay to the
Holders pursuant to Section 4 of the Registration Rights Agreement.
"Affiliate" means, with respect to any specific Person, any
other Person (including, without limitation, such Person's issue, siblings and
spouse) that directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person;
provided that for purposes of this Indenture, the term "Affiliate" shall not
include CIBC Xxxxxxxxxxx Corp. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that, for
purposes of the covenant described under Section 4.09 herein, beneficial
ownership of at least 10% of the voting securities of a Person, either directly
or indirectly, shall be deemed to be control.
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"Agent" means any Registrar, Paying Agent, or agent for
service or notices and demands.
"Asset Acquisition" means (a) an Investment by the Issuer or
any Restricted Subsidiary of the Issuer in any other Person pursuant to which
such Person becomes a Restricted Subsidiary of the Issuer, or shall be merged
with or into the Issuer or any Restricted Subsidiary of the Issuer or (b) the
acquisition by the Issuer or any Restricted Subsidiary of the Issuer of the
assets of any Person (other than a Restricted Subsidiary of the Issuer) which
constitute all or substantially all of the assets of such Person or comprise any
division or line of business of such Person or any other properties or assets of
such Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, assignment, transfer, lease or other disposition (including any Sale
and Lease-Back Transaction), other than to the Issuer or any of its Wholly-Owned
Subsidiaries, in any single transaction or series of related transactions of (a)
any Capital Stock of any Restricted Subsidiary of the Issuer or (b) any other
property or assets of the Issuer or of any Restricted Subsidiary thereof outside
of the ordinary course of business; provided that Asset Sales shall not include
(i) a transaction or series of related transactions for which the Issuer or its
Restricted Subsidiaries receive aggregate consideration of less than $1.0
million (provided that the Issuer or such Restricted Subsidiary received
consideration equal to the Fair Market Value of any such property or assets so
sold, conveyed, assigned, transferred, leased or otherwise disposed of), (ii)
the sale, lease, conveyance, disposition or other transfer of all or
substantially all of the assets of the Issuer as permitted under Section 5.01,
(iii) sales of property or equipment that has become worn out, obsolete or
damaged or otherwise unsuitable for use or no longer useful or productive in
connection with the business of the Issuer or any Restricted Subsidiary, as the
case may be, (iv) the sale of inventory in the ordinary course of business, (v)
any transaction consummated in compliance with Section 4.07 hereof, (vi) the
sale of the Issuer's Big Xxxxx River Terminal located in Kentucky, and (vii) the
sale of the stock, partnership interests or assets of Pen Cotton Company of
South Carolina, Pen Cotton Company, Pen Cotton Company of Alabama, Inc., Pen
Hardwood Company (including its 78% partnership interest in Camden Hardwood
Company), and Marine Terminals Incorporated (including its one-third partnership
interest in International Marine Terminals).
"Asset Sale Proceeds" means, with respect to any Asset Sale,
cash or Cash Equivalents received by the Issuer or any Restricted Subsidiary of
the Issuer from such Asset Sale, after (a) provision for all income or other
taxes resulting from such Asset Sale, (b) payment of all brokerage commissions
and other fees and expenses, including, without limitation, legal, accounting
and appraisal fees, related to such Asset Sale, (c) provision for minority
interest holders in any Restricted Subsidiary of the Issuer as a result of such
Asset Sale, (d) repayment of Indebtedness that is required to be repaid in
connection with such Asset
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Sale and (e) deduction of appropriate amounts to be provided by the Issuer or a
Restricted Subsidiary of the Issuer as a reserve, in accordance with GAAP,
against any liabilities associated with the assets sold or disposed of in such
Asset Sale and retained by the Issuer or a Restricted Subsidiary after such
Asset Sale, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with the assets sold or disposed of
in such Asset Sale.
"Attributable Indebtedness" in respect of a Sale and
Lease-Back Transaction means, as at the time of determination the present value
(discounted according to GAAP at the cost of indebtedness implied in the Sale
and Lease-Back Transaction) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"Available Asset Sale Proceeds" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not
been applied or that have not been deemed to have been applied in accordance
with clause (iii), and which have not yet been the basis for an Excess Proceeds
Offer in accordance with clause (iii)(c), in each case, of the first paragraph
of Section 4.11.
"Bank Warrants" means the warrants to initially purchase an
aggregate of three hundred twenty-six thousand, seven hundred seventy-two shares
of the common stock of the Issuer issued to the lenders in connection with the
establishment of the Issuer's Existing Credit Facility.
"Board of Directors" with respect to any Person means, (i) at
any time such Person is a limited liability Issuer, the board of directors of
its managing member or, if such managing member is a limited liability Issuer,
the board of directors of such managing member's managing member, and (ii)
otherwise the board of directors of such Person or any committee authorized to
act therefor.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Issuer or a Guarantor, as appropriate, and to be in full force
and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated and
whether or not voting) of corporate stock, partnership interests or any other
participation, right or other interest in the nature of an equity interest in
such Person including, without limitation, Common Stock and Preferred Stock of
such Person, or any option, warrant or other security convertible into any of
the foregoing.
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"Capitalized Lease Obligations" means with respect to any
Person, Indebtedness represented by obligations under a lease that is required
to be capitalized for financial reporting purposes in accordance with GAAP, and
the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state, as the case may be, or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Corporation ("S&P") or
Xxxxx'x Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no
more than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any bank organized under
the laws of the United States of America or any state, as the case may be,
thereof or the District of Columbia or any U.S. branch of a foreign bank having
at the date of acquisition thereof combined capital and surplus of not less than
$250,000,000; (v) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause (iv) above;
and (vi) investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v) above.
A "Change of Control" of the Issuer will be deemed to have
occurred at such time as (i) any Person (including a Person's Affiliates), other
than a Permitted Holder, becomes the beneficial owner (as defined under Rule
13d-3 or any successor rule or regulation promulgated under the Exchange Act) of
50% or more of the total voting power of the Issuer or otherwise becomes able to
exercise the right to give directions with respect to the operating and
financial policies of the Issuer or (ii) there shall be consummated any
consolidation or merger of the Issuer in which the Issuer is not the continuing
or surviving corporation or pursuant to which the Common Stock of the Issuer
would be converted into cash, securities or other property, other than a merger
or consolidation of the Issuer in which the holders of the Common Stock of the
Issuer outstanding immediately prior to the consolidation or merger hold,
directly or indirectly, at least a majority of the Common Stock of the surviving
corporation immediately after such consolidation or merger.
"Commission" means the Securities and Exchange Commission.
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"Xxxxxx Xxxxx" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of EBITDA of such Person for the four most recent
consecutive fiscal quarters for which financial statements are available (the
"Four Quarter Period") ending on or prior to the date of determination to
Consolidated Fixed Charges of such Person for the Four Quarter Period. In
addition to and without limitation of the foregoing, for purposes of this
definition, "EBITDA" and "Consolidated Fixed Charges" shall be calculated after
giving effect on a pro forma basis to (i) the incurrence of any Indebtedness of
such Person or any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such calculation, (ii), any
incurrence of other Indebtedness (and the application of the proceeds thereof),
in each case set forth in clauses (i) and (ii), occurring on or after the first
day of the Four Quarter Period and on or prior to the date of determination, as
if such incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period and
(iii) any Asset Sales or Asset Acquisitions (including the increase or decrease,
as the case may be, in the EBITDA directly attributable to such Asset Sale or
Asset Acquisition, as the case may be) occurring on or after the first day of
the Four Quarter Period and on or prior to the date of determination, as if such
Asset Sale or Asset Acquisition (including the incurrence, assumption or
liability for any such Acquired Indebtedness) occurred on the first day of the
Four Quarter Period.
"Consolidated Fixed Charges" means, with respect to any
Person, for any period, the sum, without duplication, of (i) Consolidated
Interest Expense, plus (ii) the product of (x) the amount of all dividend
payments (to any Person other than the Issuer or a Restricted Subsidiary) on any
series of Disqualified Capital Stock of such Person (other than dividends paid
in Capital Stock (other than Disqualified Capital Stock)) paid, accrued or
scheduled to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current effective consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, without duplication, (i) the aggregate amount of
interest charges, whether expensed or capitalized, incurred or accrued by such
Person and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP for such period (including non-cash interest payments),
plus (ii) to the extent not included in clause (i) above, an amount equal to the
sum of: (A) imputed interest included in Capitalized Lease Obligations, (B) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, (C) the net costs associated with
Interest Rate Agreements and other hedging
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obligations, (D) amortization of deferred financing costs and expenses, (E) the
interest portion of any deferred payment obligations, (F) amortization of
discount or premium on Indebtedness, if any, (G) all capitalized interest and
all accrued interest, (H) all non-cash interest expense and (I) all interest
incurred or paid under any guarantee of Indebtedness (including a guarantee of
principal, interest or any combination thereof) of any Person minus to the
extent included in clauses (i) or (ii) above, fees and expenses (cash or
non-cash) incurred in connection with the Offering, the termination of the
Existing Credit Facility, including the redemption of the Bank Warrants, and the
establishment of the New Credit Facility). For purposes of calculating
Consolidated Interest Expense on a pro forma basis, the interest on Indebtedness
bearing a floating rate of interest shall be the interest rate in effect at the
time of determination, taking into account on a pro forma basis any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term at the date of determination of at least 12 months.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that (a) the Net Income of any Person, other than
a Restricted Subsidiary of the referent Person, shall be excluded, except to the
extent of the amount of cash dividends or distributions actually received by the
referent Person, (b) the Net Income of any Restricted Subsidiary of the Person
in question that is subject to any restriction or limitation on the payment of
dividends or the making of other distributions (other than pursuant to the Notes
or this Indenture or the New Credit Facility) shall be excluded to the extent of
such restriction or limitation, (c)(i) the Net Income of any Person acquired in
a pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded and (ii) any net gain (but not loss) resulting
from an Asset Sale by the Person in question or any of its Restricted
Subsidiaries other than in the ordinary course of business shall be excluded,
(d) extraordinary gains and losses and any foreign exchange gains and losses
shall be excluded, (e) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued) shall be
excluded, (f) the cumulative effect of a change in accounting principles after
the Issue Date shall be excluded, (g) any restoration to income or any
contingency reserve of an extraordinary, non-recurring or unusual nature shall
be excluded, except to the extent that provision for such reserve was made out
of Consolidated Net Income accrued at any time subsequent to the Issue Date and
(h) in the case of a successor to the referent Person by consolidation or merger
or as a transferee of the referent Person's assets, any earnings of the
successor corporation prior to such consolidation, merger or transfer of assets
shall be excluded.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person and its Restricted Subsidiaries determined
on a consolidated basis in
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accordance with GAAP, less (to the extent included) amounts attributable to
Disqualified Capital Stock of such Person.
"Convertible Preferred Stock" means the convertible preferred
stock of the issuer with a face value of $13,650,000, convertible to common
stock of the Issuer at the holder's option between January 2001 and January
2002. If not earlier converted to common stock of the Issuer, the Convertible
Preferred Stock will be mandatorily redeemable in 2006, along with accrued
dividends thereon, such amounts to be paid in 40 quarterly payments over ten
years at a rate of 2.25% above the rate payable on five-year U.S. Treasury
obligations.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, attention:
Corporate Trust Administration.
"Credit Facilities" means the Credit Agreement dated as of
June 8, 1998, among the Issuer, the guarantors named therein, the lenders party
thereto in their capacities as lenders thereunder and Mellon Bank, N.A. and
Canadian Imperial Bank of Commerce, as co-agents, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (provided that such increase in borrowings is
permitted by Section 4.06 hereof) or adding Subsidiaries of the Issuer as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Issuer or any Restricted Subsidiary of the Issuer against
fluctuations in currency values.
"Default" means any event that is, or with the passing of time
or giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Issuer or another Person
designated as Depository by the Issuer, which Person must be a clearing agency
registered under the Exchange Act.
"Designation" shall have the meaning set forth in the
definition of "Restricted Payment."
15
-8-
"Designation Amount" shall have the meaning set forth in the
definition of "Restricted Payment."
"Disqualified Capital Stock" means any Capital Stock of a
Person or a Restricted Subsidiary thereof which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable at
the option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof (except, in each case, in
accordance with a change of control provision, which provision has substantially
the same effect as the provisions of this Indenture described under Section 4.17
hereof), in whole or in part, or is exchangeable into Indebtedness on or prior
to the final maturity date of the Notes.
"EBITDA" means, with respect to any Person and its Restricted
Subsidiaries, for any period, an amount equal to (a) the sum of (i) Consolidated
Net Income for such period, plus (ii) the provision for taxes for such period
based on income or profits to the extent such income or profits were included in
computing Consolidated Net Income and any provision for taxes utilized in
computing net loss under clause (i) hereof, plus (iii) Consolidated Interest
Expense for such period, plus (iv) depreciation and depletion for such period on
a consolidated basis, plus (v) amortization of intangibles for such period on a
consolidated basis, plus (vi) any other non-cash items reducing Consolidated Net
Income for such period, plus (vii) charges resulting from fees and expenses
(cash or non-cash) incurred in connection with the Offering of the Notes, the
termination of the Existing Credit Facility, including the redemption of the
Bank Warrants, and the establishment of the New Credit Facility, and charges
resulting from prepayment penalties incurred in connection with the early
retirement of Indebtedness out of the net proceeds from the Offering of the
Notes minus (b) all non-cash items increasing Consolidated Net Income for such
period, minus (c) to the extend not included above, interest income accruing on
restricted cash and Cash Equivalents that the Issuer has deposited in escrow to
fund guarantees of indebtedness of International Marine Terminals, minus (d) all
cash payments during such period relating to non-cash charges that were added
back in determining EBITDA in any prior period, all for such Person and its
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" has the meaning provided in the Registration
Rights Agreement or, with respect to Notes issued under this Indenture
subsequent to the Issue Date pursuant to Section 2.01, a registration rights
agreement substantially identical to the Registration Rights Agreement.
"Existing Credit Facility" means the Issuer's senior secured
credit facility pursuant to the Credit Agreement, dated as of August 16, 1994,
by and among the Issuer, Pen
16
-9-
Coal Corporation, River Marine Terminals, Inc., The Elk Horn Coal Corporation,
and Mellon Bank, N.A., as agent and a lender, and the lenders named therein, as
amended.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value shall be determined by the Board of Directors of
the Issuer acting reasonably and in good faith and, in the case of determination
involving assets or property in excess of $500,000 shall be evidenced by a
resolution of the Board of Directors of the Issuer delivered to the Trustee.
"Foreign Credit Facility" means a working capital facility
available to a Foreign Restricted Subsidiary; provided that the Indebtedness
incurred under such facility is denominated and payable in U.S. or Canadian
dollars or the local currencies of the jurisdictions of the operations of the
Foreign Restricted Subsidiary incurring such Indebtedness.
"Foreign Restricted Subsidiary" means a Restricted Subsidiary
whose jurisdiction of incorporation or formation is other than the United
States, any state thereof or the District of Columbia or Canada or any province
or territory thereof.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States on the Issue Date.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the obligations of the
Issuer with respect to the Notes by each Guarantor pursuant to the terms of
Article 10 hereof, substantially in the form set forth in Exhibit G.
"Guarantors" means (i) each Subsidiary of the Issuer existing
on the Issue Date with assets or shareholders' equity in excess of $25,000 on
the Issue Date and (ii) each other Restricted Subsidiary of the Issuer formed,
created or acquired after the Issue Date.
"Holder", "holder" or "Noteholder" means the Person in whose
name a Note is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurable," and "incurring" shall
have meanings correlative to the foregoing); provided that a change in GAAP that
results in
17
-10-
an obligation of such Person that existed prior to such time becoming
Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding, without limitation, any balances that
constitute accounts payable or trade payables, and other accrued liabilities
arising in the ordinary course of business) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included (i) any Capitalized Lease Obligations of such Person (but
excluding any obligations under operating leases), (ii) obligations of others
secured by a lien to which any property or assets owned or held by such Person
are subject, whether or not the obligation or obligations secured thereby shall
have been assumed, provided that, for the purposes of determining the amount of
Indebtedness described in this clause, if recourse with respect to such
Indebtedness is limited to such asset, the amount of such Indebtedness shall be
limited to the Fair Market Value for such asset, (iii) guarantees of items of
other Persons which would be included within this definition for such other
Persons (whether or not such items would appear upon the balance sheet of the
guarantor), provided that guarantees of indebtedness of International Marine
Terminals shall be included only to the extent that such guarantees exceed the
amount of restricted cash and Cash Equivalents that the Issuer has deposited in
escrow to fund such guarantees, (iv) all obligations for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (v) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price (for the purposes hereof "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were
repurchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture), (vi) obligations of any such Person under any
Currency Agreement or any Interest Rate Agreement applicable to any of the
foregoing (if and to the extent such Currency Agreement or Interest Rate
Agreement obligations would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP) and (vii) Attributable Indebtedness.
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,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation; provided that (i)
the amount outstanding at any time of any Indebtedness issued with original
issue discount is the accreted value of such Indebtedness at such time as
determined in conformity with GAAP and (ii) Indebtedness shall not
18
-11-
include any liability for federal, state, local or other taxes. Notwithstanding
any other provision of the foregoing definition, any trade payable arising from
the purchase of goods or materials or for services obtained in the ordinary
course of business shall not be deemed to be "Indebtedness" of the Issuer or any
of its Restricted Subsidiaries for purposes of this definition. Furthermore,
guarantees of (or obligations with respect to letters of credit supporting)
Indebtedness otherwise included in the determination of such amount shall not
also be included.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Independent Financial Advisor" means an investment banking
firm of national reputation in the United States (i) which does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Issuer or any of its Affiliates; provided,
that notwithstanding the foregoing, CIBC Xxxxxxxxxxx Corp. shall be deemed to be
an Independent Financial Advisor and (ii) which, in the judgment of the Board of
Directors of the Issuer, is otherwise independent and qualified to perform the
task for which it is to be engaged.
"Initial Purchaser" means CIBC Xxxxxxxxxxx Corp.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501 (a)(1), (2), (3)
or (7) promulgated under the Securities Act.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement or other similar agreement designed to protect the party
indicated therein against fluctuations in interest rates.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Investments" means, with respect to any Person, directly or
indirectly, any advance, account receivable (other than an account receivable
arising in the ordinary course of business of such Person), loan or capital
contribution to (by means of transfers of property to others, payments for
property or services for the account or use of others or otherwise), the
purchase of any Capital Stock, bonds, notes, debentures, partnership or joint
venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the stock or other evidence of
beneficial ownership of, any Person or the making of any investment in any
Person. Investments shall exclude (i) extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices of such Person and
(ii) the repurchase of securities of any Person by such Person. For the purposes
of the "Limitation on Restricted Payments" covenant, the amount of any
Investment shall be the original cost of such
19
-12-
Investment plus the cost of all additional Investments by the Issuer or any of
its Restricted Subsidiaries, without any adjustments for increases or decreases
in value, or write-ups, write-downs or write-offs with respect to such
Investment, reduced by the payment of dividends or distributions in connection
with such Investment or any other amounts received in respect of such
Investment; provided that no such payment of dividends or distributions or
receipt of any such other amounts shall reduce the amount of any Investment if
such payment of dividends or distributions or receipt of any such amounts would
be included in Consolidated Net Income. In determining the amount of any
Investment involving the transfer of any property or assets other than cash,
such property shall be valued at its Fair Market Value at the time of such
transfer, as determined in good faith by the Board of Directors of the Person
making such transfer.
"Issue Date" means the date the Notes are first issued by the
Issuer and authenticated by the Trustee under this Indenture.
"Issuer" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor.
"Issuer Request" means any written request signed in the name
of the Issuer by the Chairman of the Board of Directors, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer or the
Treasurer of the Issuer and attested to by the Secretary or any Assistant
Secretary of the Issuer.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including without limitation, any Capitalized Lease Obligation, conditional
sales, or other title retention agreement having substantially the same economic
effect as any of the foregoing).
"Material Subsidiary" means, at any date of determination, (a)
any Restricted Subsidiary that, together with its Subsidiaries that constitute
Restricted Subsidiaries (i) for the most recent fiscal year of the Issuer
accounted for more than 5.0% of the consolidated revenues of the Issuer and the
Restricted Subsidiaries or (ii) as of the end of such fiscal year, owned more
than 5.0% of the consolidated assets of the Issuer and the Restricted
Subsidiaries, all as set forth on the consolidated financial statements of the
Issuer and the Restricted Subsidiaries for such year prepared in conformity with
GAAP, and (b) any Restricted Subsidiary which, when aggregated with all other
Restricted Subsidiaries that are not otherwise Material Restricted Subsidiaries
and as to which any event described in clause (g) of "Events of Default" above
has occurred, would constitute a Material Restricted Subsidiary under clause (a)
of this definition.
20
-13-
"Maturity Date" means June 15, 2008.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person, for any
period, the net income (loss) of such Person determined in accordance with GAAP.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the 9-7/8% Senior Notes due 2008 issued by the
Issuer, including, without limitation, the Private Exchange Notes, if any, and
the Exchange Notes, treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Offering" means the offering of the Notes as described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum dated June
3, 1998 pursuant to which the Notes issued on the Issue Date were offered.
"Officer", with respect to any Person (other than the
Trustee), means the Chairman of the Board of Directors, Chief Executive Officer,
the President, any Vice President and the Chief Financial Officer, the Treasurer
or the Secretary of such Person, or any other officer of such Person designated
by the Board of Directors of such Person and set forth in an Officers'
Certificate delivered to the Trustee.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel, which
counsel is reasonably acceptable to the Trustee, stating the matters required by
Section 11.05 and delivered to the Trustee.
"Outsourcing Transaction" means a Sale and Lease-Back
Transaction relating solely to properties purchased by the Issuer or any of its
Restricted Subsidiaries immediately prior to or substantially concurrent with
such Sale and Lease-Back Transaction; provided that the price at which such
properties are sold in such Sale and Lease-Back Transaction is at least equal to
the price at which the Issuer or any of its Restricted Subsidiaries purchased
such properties.
21
-14-
"Payment Default" means any default, whether or not any
requirement for the giving of notice, the lapse of time or both, or any other
condition to such default becoming an event of default has occurred, in the
payment of principal of (or premium, if any) or interest on or any other amount
payable in connection with Designated Senior Indebtedness.
"Permitted Holders" means Xxxxxxx X. Xxxxxxx or any Affiliate
of Xxxxxxx X. Xxxxxxx including any trust established and controlled by Xxxxxxx
X. Xxxxxxx for the principal benefit of himself or his family members.
"Permitted Indebtedness" means:
(i) Indebtedness, including letters of credit, arising under
or in connection with the Credit Facility in an aggregate principal
amount not to exceed $40.0 million outstanding at any time and less
any mandatory prepayments actually made thereunder (to the extent, in
the case of payments of revolving credit borrowings, that the
corresponding commitments have been permanently reduced) or scheduled
payments actually made thereunder;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness which is outstanding on the Issue Date;
(iv) Indebtedness of the Issuer owed to and held by any
Wholly-Owned Subsidiary which is unsecured and subordinated in right
of payment to the payment and performance of the Issuer's obligations
under this Indenture and the Notes and Indebtedness of any Subsidiary
owed to and held by the Issuer or another Wholly-Owned Subsidiary;
provided that (a) any sale or other disposition of any Indebtedness of
the Issuer or any Restricted Subsidiary referred to in this clause
(iv) to a Person (other than the Issuer or a Wholly-Owned Subsidiary),
(b) any sale or other disposition of Capital Stock of any Restricted
Subsidiary which holds Indebtedness of the Issuer or another
Restricted Subsidiary such that such Restricted Subsidiary ceases to
be a Subsidiary of the Issuer and (c) the Designation of a Restricted
Subsidiary that holds Indebtedness of the Issuer or any other
Restricted Subsidiary as an Unrestricted Subsidiary shall be deemed to
be an incurrence of Indebtedness not constituting Permitted
Indebtedness by the Issuer;
(v) Purchase Money Indebtedness and Capitalized Lease
Obligations incurred to acquire, lease, construct or improve property
used in the business or other Indebtedness secured by Liens on
Property constituting Rolling Stock which Purchase Money Indebtedness,
Capitalized Lease Obligations and other Indebtedness referenced above
do not in the aggregate exceed, at any one time outstanding, the sum
of
22
-15-
$10 million plus the amount of borrowings permitted under clause
(i) hereof minus the amount of outstanding borrowings under clause (i)
hereof;
(vi) Interest Rate Agreements relating to Indebtedness of the
Issuer (which Indebtedness (a) bears interest at fluctuating interest
rates and (b) is otherwise permitted to be incurred under Section 4.06
hereof; provided that (a) such Interest Rate Agreements have been
entered into for bona fide business purposes and not for speculation
and (b) the notional principal amount of such Interest Rate
Agreements, at the time of the incurrence thereof, does not exceed the
principal amount of the Indebtedness to which such Interest Rate
Agreements relate;
(vii) Indebtedness Under Currency Agreements; provided that in
the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the principal amount of
Indebtedness of the Issuer and its Restricted Subsidiaries outstanding
other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities or compensation payable
thereunder;
(viii) Refinancing Indebtedness;
(ix) Indebtedness resulting from the redemption of the
Convertible Preferred Stock and payment of accumulated dividends
thereon, in each case after January 1, 2006 and in accordance with the
Articles of Amendment to the Restated Charter of the Issuer in effect
on the Issue Date; provided, however, that Indebtedness incurred
pursuant to this clause (ix) that could not be incurred pursuant to
the "Limitation on Additional Indebtedness" covenant shall reduce the
aggregate sum of the amounts otherwise available under clauses (i) and
(v) hereof;
(x) Indebtedness incurred in respect of performance, surety,
and similar bonds and the completion guarantees provided by the Issuer
or any Restricted Subsidiary in the ordinary course of business;
(xi) Indebtedness represented by the guarantee by the Issuer
or any of the Guarantors of Indebtedness of the Company or a Guarantor
that was permitted to be incurred under this Indenture;
(xii) additional Indebtedness of the Issuer and its Restricted
Subsidiaries not to exceed $7.0 million at any one time outstanding.
23
-16-
"Permitted Investments" means Investments made on or
after the Issue Date consisting of
(i) Investments by the Issuer, or by a Restricted Subsidiary
thereof, in the Issuer or a Wholly-Owned Subsidiary;
(ii) Investments by the Issuer, or by a Restricted Subsidiary
thereof, in a Person, if as a result of such Investment (a) such
Person becomes a Restricted Subsidiary of the Issuer or (b) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Issuer or a Wholly-Owned Subsidiary thereof;
(iii) Investments in Cash Equivalents;
(iv) reasonable and customary loans and advances made to
employees in connection with their relocation not to exceed $1.0
million in the aggregate at any one time outstanding;
(v) an Investment that is made by the Issuer or a Restricted
Subsidiary thereof in the form of any Capital Stock, bonds, notes,
debentures or other securities that are issued by a third party to the
Issuer or such Restricted Subsidiary solely as partial consideration
for the consummation of an Asset Sale that is permitted under Section
4.11 hereof;
(vi) Investments paid for solely in Capital Stock (other than
Disqualified Capital Stock) of the Issuer;
(vii) Interest Rate Agreements and Currency Agreements entered
into in the ordinary course of the Issuer's or its Restricted
Subsidiaries' business;
(viii) Investments in International Marine Terminals (a) to
repay indebtedness to Mellon Bank, N.A. of approximately $7.7 million
due in 2000 and to repay approximately $13.3 million of bonds due 2006
issued by International Marine Terminals, provided, however, that such
Investments shall only be Permitted Investments to the extent they are
derived from Investments that the Issuer had deposited in escrow as of
the Issue Date to fund such obligations of International Marine
Terminals and (b) in accordance with the Issuer's partnership
obligations existing on the Issue Date with respect to International
Marine Terminals;
(ix) Investments in existence on the Issue Date; and
24
-17-
(x) other Investments that do not exceed $3.0 million in the
aggregate at any one time outstanding.
"Permitted Liens" means (i) Liens on Property or assets of, or
any Capital Stock of, any corporation existing at the time such assets are
acquired by the Issuer or any of its Subsidiaries, whether by merger,
amalgamation, consolidation, purchase of assets or otherwise; provided that such
Liens (x) are not created, incurred or assumed in connection with, or in
contemplation of, such assets being acquired by the Issuer or its Subsidiaries
and (y) that any such Lien does not extend to or cover any property, Capital
Stock or Indebtedness other than the property, assets, Capital Stock or
Indebtedness of such corporation or a Subsidiary of such corporation, (ii) Liens
securing Refinancing Indebtedness; provided that any such Lien does not extend
to or cover any Property, Capital Stock or Indebtedness other than the Property,
Capital Stock or Indebtedness securing the Indebtedness so refunded, refinanced
or extended, (iii) Liens in favor of the Issuer or any of its Restricted
Subsidiaries, (iv) Liens to secure Purchase Money Indebtedness that is otherwise
permitted under this Indenture; provided that (a) any such Lien is created
solely for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including sales and excise taxes,
installation and delivery charges and other direct costs of, and other direct
expenses paid or charged in connection with, such purchase or construction) of
such Property, (b) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of such costs, and (c) such Lien does not extend to or
cover any Property other than such item of Property and any improvements on such
item, (v) statutory liens or landlords', carriers', warehousemen's, unemployment
insurance, surety or appeal bonds, mechanics', suppliers', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business with
respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor, (vi)
Liens existing on the Issue Date, (vii) Liens securing only the Notes or the
Guarantees, (viii) easements, reservation of rights of way, restrictions
(including, but not limited to, zoning and building restrictions) and other
similar easements, licenses, restrictions on the use of properties, or minor
imperfections of title that in the aggregate are not material in amount and do
not in any case materially detract from the properties subject thereto or
interfere with the ordinary conduct of the business of the Issuer and its
Restricted Subsidiaries, (ix) Liens for taxes, assessments or governmental
charges that are being contested in good faith by appropriate proceedings;
provided that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor, (x) Liens securing
Capitalized Lease Obligations otherwise permitted under this Indenture; provided
that such Lien does not extend to any property other than that subject to the
underlying lease, (xi) Liens under the Credit Facilities and obligations under
Interest Rate Agreements, Currency Agreements and commodity agreements, securing
such Credit Facilities and obligations in an amount not to exceed $75 million in
the aggregate and permitted to be incurred under this Indenture, (xii) Liens
created or deposits made to secure the performance of tenders, bids,
25
-18-
leases, statutory obligations, government contracts, performance bonds and other
obligations of a like nature incurred in the ordinary course of business, (xiii)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods,
(xiv) Liens arising pursuant to Sale and Leaseback transactions entered into in
compliance with this Indenture, (xv) Liens incurred in the ordinary course of
business of the Issuer or any of its Subsidiaries with respect to $5 million at
any one time outstanding and that (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of property or materially impair the use
thereof in the operation of business by the Company or such Subsidiary and (xvi)
Liens on Property constituting Rolling Stock of any Person securing Indebtedness
otherwise permitted under this Indenture, provided that such Liens do not extend
to or cover any other Property and (xvii) any extension, renewal or replacement,
in whole or in part, of any Lien described in the foregoing clauses (i) through
(xvii); provided that any such extension, renewal or replacement shall be no
more restrictive in any material respect than the Lien so extended, renewed or
replaced and shall not extend to any other Property of the Issuer or its
Subsidiaries other than such item of Property originally covered by such Lien or
by improvement thereon or additions or accessions thereto.
"Person" means any individual, corporation, partnership,
limited liability Company, joint venture, association, joint-stock Company,
trust, unincorporated organization or government (including any agency or
political subdivision thereof).
"Physical Notes" means certificated Notes in registered form
in substantially the form set forth in Exhibit A.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Private Exchange" has the meaning set forth in the
Registration Rights Agreement or, with respect to Notes issued under this
Indenture subsequent to the Issue Date pursuant to Section 2.01, a registration
rights agreement substantially identical to the Registration Rights Agreement.
"Private Exchange Notes" has the meaning set forth in the
Registration Rights Agreement or, with respect to Notes issued under this
Indenture subsequent to the Issue Date pursuant to Section 2.01, a registration
rights agreement substantially identical to the Registration Rights Agreement.
26
-19-
"Private Placement Legend" means the legend initially set
forth on the Rule 144A Notes in the form set forth in Exhibit B.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Public Equity Offering" means a public offering by the Issuer
or any parent of shares of its Common Stock (however designated and whether
voting or non-voting) and any and all rights, warrants or options to acquire
such Common Stock.
"Purchase Agreement" means the Securities Purchase Agreement
dated June 3, 1998 by and among the Issuer, the Guarantors and the Initial
Purchaser.
"Purchase Money Indebtedness" means any Indebtedness incurred
by a Person to finance the cost (including the cost of construction,
installation or improvement) of an item of property used in the business, the
principal amount of which Indebtedness does not exceed the sum of (i) the lesser
of (A) the Fair Market Value of such property or (B) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to the terms of the
Notes.
"Refinancing Indebtedness" means Indebtedness that replaces,
refunds, renews, refinances or extends any Indebtedness of the Issuer or a
Restricted Subsidiary outstanding on the Issue Date or other Indebtedness
permitted to be incurred by the Issuer or its Restricted Subsidiaries pursuant
to the terms of this Indenture, but only to the extent that (i) the Refinancing
Indebtedness is subordinated to the Notes to at least the same extent as the
Indebtedness being replaced, refunded, renewed, refinanced or extended, if at
all, (ii) the Refinancing Indebtedness is scheduled to mature either (a) no
earlier than the Indebtedness being replaced, refunded, renewed, refinanced or
extended, or (b) after the maturity date of the Notes, (iii) the portion, if
any, of the Refinancing Indebtedness that is scheduled to mature on or prior to
the maturity date of the Notes has a weighted average life to maturity at the
time such Refinancing Indebtedness is incurred that is equal to or greater than
the weighted average life to maturity of the portion of the Indebtedness being
replaced, refunded, renewed, refinanced or extended that is scheduled to mature
on or prior to the maturity date of the Notes, (iv) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the sum of (a) the aggregate principal amount then outstanding under the
Indebtedness being replaced, refunded, renewed, refinanced or extended, (b) the
amount of accrued and unpaid interest, if any, and
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premiums owed, if any, not in excess of preexisting prepayment provisions on
such Indebtedness being replaced, refunded, renewed, refinanced or extended and
(c) the amount of customary fees, expenses and costs related to the incurrence
of such Refinancing Indebtedness, and (v) such Refinancing Indebtedness is
incurred by the same Person that initially incurred the Indebtedness being
replaced, refunded, renewed, refinanced or extended, except that the Issuer may
incur Refinancing Indebtedness to refund, refinance or extend Indebtedness of
any Wholly-Owned Subsidiary of the Issuer.
"Registration Rights Agreement" means the Registration Rights
Agreement dated June 8, 1998 among the Issuer, the Guarantors and the Initial
Purchasers, as amended from time to time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Related Business" means the business of the Issuer or any of
its Restricted Subsidiaries as conducted on the Issue Date or businesses similar
or ancillary thereto.
"Responsible Officer" when used with respect to the Trustee,
means an officer or assistant officer assigned to the corporate trust department
of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Note" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated under the Securities Act;
provided, that the Trustee shall be entitled to request and conclusively rely
upon an Opinion of Counsel with respect to whether any Note is a Restricted
Note.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Capital Stock of the Issuer or any Restricted Subsidiary of the Issuer or any
payment made to the direct or indirect holders (in their capacities as such) of
Capital Stock of the Issuer or any Restricted Subsidiary of the Issuer (other
than (x) dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
such Capital Stock (other than Disqualified Capital Stock), and (y) in the case
of Restricted Subsidiaries of the Issuer, dividends or distributions payable to
the Issuer or to a Wholly-Owned Subsidiary of the Issuer), (ii) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Issuer or any of its Restricted Subsidiaries (other than Capital Stock of a
Restricted Subsidiary owned by the Issuer or a Wholly-Owned Subsidiary of the
Issuer) or any options, warrants or other rights to purchase such Capital Stock)
or any options, warrants or other rights to purchase such Capital Stock, (iii)
the making of any principal payment on, or the purchase, defeasance, repurchase,
redemption or other acquisition or retirement for value,
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prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness which is subordinated in right of payment to the
Notes (other than Indebtedness of a Restricted Subsidiary held by the Issuer or
a Wholly-Owned Subsidiary), (iv) the making of any Investment or guarantee of
any Investment in any Person other than a Permitted Investment, (v) the
designation of any Subsidiary of the Issuer as an Unrestricted Subsidiary (a
"Designation"); provided that the Designation of a Subsidiary of the Issuer as
an Unrestricted Subsidiary shall be deemed to include the Designation of all of
the Subsidiaries of such Subsidiary and (vi) the forgiveness of any Indebtedness
of an Affiliate of the Issuer (other than a Wholly-Owned Subsidiary) owed to the
Issuer or a Restricted Subsidiary of the Issuer. In determining the amount of
any Restricted Payment made under clause (v) above, the amount of such
Restricted Payment (the "Designation Amount") shall be equal to the greater of
(i) the book value or (ii) the Fair Market Value of the Issuer's proportionate
interest in such Subsidiary on such date.
"Restricted Subsidiary" means a Subsidiary of the Issuer other
than an Unrestricted Subsidiary and includes all of the Subsidiaries of the
Issuer existing on the Issue Date. The Board of Directors of the Issuer may
designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after giving effect to such
action (and treating any Acquired Indebtedness as having been incurred at the
time of such action), (i) the Issuer could have incurred at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.06 of this Indenture and (ii) no Default or Event of Default shall have
occurred and be continuing.
"Rolling Stock" means mobile mining equipment.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Issuer or any Restricted Subsidiary
of the Issuer of any real or tangible personal property, which property has been
or is to be sold or transferred by the Issuer or such Restricted Subsidiary to
such Person in contemplation of such leasing.
"S&P" means Standard & Poor's Ratings Services and its
successors.
"Securities Act" means the Securities Act of 1933, as amended
and the rules and regulations of the Commission promulgated thereunder.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, limited liability company, association or other
business entity, whether now existing or hereafter organized or acquired, (i) in
the case of a corporation, of which more than 50% of
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the total voting power of the Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, officers or
trustees thereof is held by such first-named Person or any of its Subsidiaries;
or (ii) in the case of a partnership, joint venture, limited liability company,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Taxes" means any present or future tax, duty, levy, impost,
assessment or other government charge (including penalties, interest and any
other liabilities related thereto) imposed or levied by or on behalf of a Taxing
Authority.
"Taxing Authority" means any government or any political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
"Tax Settlement" means a settlement between the Issuer and
applicable Tax Authorities of disputed tax and penalty amounts for all periods
up to and including December 31, 1995.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 9.03 hereof).
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Issuer which is classified
after the Issue Date as an Unrestricted Subsidiary by a resolution adopted by
the Board of Directors of the Issuer; provided that a Subsidiary may be so
classified as an Unrestricted Subsidiary only if such classification is in
compliance with Section 4.07 hereof. The Trustee shall be given prompt notice by
the Issuer of each resolution adopted by the Board of Directors of the Issuer
under this provision, together with a copy of each such resolution adopted.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as
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custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or a specific payment of principal or interest on any such
U.S. Government Obligation held by such custodian for the account of the holder
of such depository receipt.
"Wholly-Owned Subsidiary" means any Restricted Subsidiary, all
of the outstanding voting securities (other than directors' qualifying shares or
similar requirements of law) of which are owned, directly or indirectly, by the
Issuer.
SECTION 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Term Defined in Section
"Affiliate Transaction".......................................... 4.09
"Agent Members".................................................. 2.16(a)
"Bankruptcy Law"................................................. 6.01
"Business Day"................................................... 11.07
"CEDEL".......................................................... 2.16(a)
"Change of Control Offer"........................................ 4.17
"Change of Control Purchase Price"............................... 4.17
"Change of Control Payment Date"................................. 4.17
"Covenant Defeasance"............................................ 9.03
"Custodian"...................................................... 6.01
"Euroclear"...................................................... 2.16(a)
"Events of Default".............................................. 6.01
"Excess Proceeds Offer".......................................... 4.11
"Excluded Holder"................................................ 4.18
"Fifth Anniversary".............................................. 4.11
"Global Notes"................................................... 2.16(a)
"Legal Defeasance"............................................... 9.02
"Legal Holiday".................................................. 11.07
"Offer Period"................................................... 4.11
"Other Notes".................................................... 2.02
"Paying Agent"................................................... 2.04
"Registrar"...................................................... 2.04
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"Regulation S Global Notes"...................................... 2.16(a)
"Regulation S Notes"............................................. 2.02
"Replacement Assets.............................................. 4.11
"Restricted Global Note"......................................... 2.16(a)
"Rule 144A Notes"................................................ 2.02
"25% Available Asset Sale Proceeds............................... 4.11
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Issuer, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by Commission
rule have the meanings therein assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the
plural include the singular;
(4) words used herein implying any gender shall apply to
both genders;
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(5) "herein" "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other Subsection;
(6) unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP as in effect from time to time,
applied on a basis consistent with the most recent audited consolidated
financial statements of the Issuer;
(7) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or with respect
to any Note, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent that, in such context, Additional Interest is,
was or would be payable in respect thereof.
ARTICLE TWO
THE NOTES
SECTION 2.01. Amount of Notes.
The Trustee shall authenticate Notes for original issue on the
Issue Date in the aggregate principal amount of $100,000,000 upon a written
order of the Issuer in the form of an Officers' Certificate of the Issuer. Such
written order shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated.
Upon receipt of a Issuer Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer specified
in the Registration Rights Agreement or, with respect to Notes issued under this
Indenture subsequent to the Issue Date, a registration rights agreement
substantially identical to the Registration Rights Agreement, is effective and
that the conditions precedent to a private exchange thereunder have been met,
the Trustee shall authenticate an additional series of Notes in an aggregate
principal amount not to exceed $100,000,000 for issuance in exchange for the
Notes tendered for exchange pursuant to such exchange offer registered under the
Securities Act or pursuant to a Private Exchange. Exchange Notes or Private
Exchange Notes may have such distinctive series designations and such changes in
the form thereof as are specified in the Issuer Request referred to in the
preceding sentence.
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SECTION 2.02. Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A, which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Issuer is subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("Rule 144A Notes") shall bear the legend and include the form of assignment set
forth in Exhibit B, Notes offered and sold in offshore transactions in reliance
on Regulation S ("Regulation S Notes") shall bear the legend and include the
form of assignment set forth in Exhibit C, and Notes offered and sold to
Institutional Accredited Investors in transactions exempt from registration
under the Securities Act not made in reliance on Rule 144A or Regulation S
("Other Notes") may be represented by a Restricted Global Note or, if such an
investor may not hold an interest in the Restricted Global Note, a Physical
Note, in each case, bearing the Private Placement Legend. Each Note shall be
dated the date of its authentication.
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the extent
applicable, the Issuer, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
agree to be bound thereby.
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar.
SECTION 2.03. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one
Officer (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for the Issuer by manual
or facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Issuer, and the Issuer shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been
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authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuer to authenticate the Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate the Notes 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 an Agent to deal with the Issuer and Affiliates of the Issuer.
Each Paying Agent is designated as an authenticating agent for purposes of this
Indenture.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. Registrar and Paying Agent.
The Issuer shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), and an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Issuer, if any, in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Issuer may have one or more additional Paying Agents. The term
"Paying Agent" includes any additional Paying Agent. Neither the Issuer nor any
Affiliate thereof may act as Paying Agent.
The Issuer shall enter into an appropriate agency agreement,
which shall incorporate the provisions of the TIA, with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuer shall notify the Trustee of the
name and address of any such Agent. If the Issuer fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Issuer initially appoints the Trustee as Registrar, Paying
Agent and Agent for service of notices and demands in connection with the Notes
and this Indenture.
SECTION 2.05. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Issuer or any other obligor on the Notes or the Guarantors),
and the Issuer and the Paying Agent shall notify the Trustee
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of any default by the Issuer (or any other obligor on the Notes) in making any
such payment. Money held in trust by the Paying Agent need not be segregated
except as required by law and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Issuer at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.01 (1) or (2), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION 2.06. Noteholder 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 the Noteholders. If the Trustee is not the Registrar, the Issuer
shall furnish to the Trustee 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 the Noteholders.
SECTION 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to
the Registrar with a request from the Holder of such Notes to register a
transfer or to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer as
requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Registrar, duly executed by
the Holder thereof or his attorneys duly authorized in writing. To permit
registrations of transfers and exchanges, the Issuer shall issue and execute and
the Trustee shall authenticate new Notes (and the Guarantors shall execute the
guarantee thereon) evidencing such transfer or exchange at the Registrar's
request. No service charge shall be made to the Noteholder for any registration
of transfer or exchange. The Issuer may require from the Noteholder payment of a
sum sufficient to cover any transfer taxes or other governmental charge that may
be imposed in relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.06, 4.11, 4.17 or 8.05 (in
which events the Issuer shall be responsible for the payment of such taxes). The
Registrar shall not be required to exchange or register a transfer of any Note
for a period of 15 days immediately preceding the mailing of notice of
redemption of Notes to be redeemed or of any Note selected, called or being
called for redemption except the unredeemed portion of any Note being redeemed
in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a
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book entry system maintained by the Holder of such Global Note (or its agent),
and that ownership of a beneficial interest in the Global Note shall be required
to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Issuer and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Issuer's compliance with or
have any responsibility with respect to the Issuer's compliance with any Federal
or state securities laws.
SECTION 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Note (and the Guarantors shall execute the guarantee
thereon) if the Holder of such Note furnishes to the Issuer and the Trustee
evidence reasonably acceptable to them of the ownership and the destruction,
loss or theft of such Note and if the requirements of Section 8-405 of the New
York Uniform Commercial Code as in effect on the date of this Indenture are met.
If required by the Trustee or the Issuer, an indemnity bond shall be posted,
sufficient in the judgment of both to protect the Issuer, the Guarantors, the
Trustee or any Paying Agent from any loss that any of them may suffer if such
Note is replaced. The Issuer may charge such Holder for the Issuer's reasonable
out-of-pocket expenses in replacing such Note and the Trustee may charge the
Issuer for the Trustee's expenses (including, without limitation, attorneys'
fees and disbursements) in replacing such Note. Every replacement Note shall
constitute a contractual obligation of the Issuer.
SECTION 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Issuer or one of its Affiliates holds the Note.
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If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Issuer.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money sufficient to pay all
accrued interest and principal with respect to the Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.10. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by the Issuer or any other Affiliate of
the Issuer shall be disregarded as though they were not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has received an Officers' Certificate stating that such Notes are
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee established to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not the Issuer, a Guarantor, any other obligor on the Notes or any of
their respective Affiliates.
SECTION 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery,
the Issuer may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Issuer considers appropriate for temporary Notes.
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.12. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the
record-retention requirements of the Exchange Act) return such cancelled Notes
to the
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Issuer. The Issuer may not reissue or resell, or issue new Notes to replace,
Notes that the Issuer has redeemed or paid, or that have been delivered to the
Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
If the Issuer defaults on a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the Persons who are Noteholders on a subsequent special record date, which
date shall be at least five Business Days prior to the payment date. The Issuer
shall fix such special record date and payment date in a manner satisfactory to
the Trustee. At least 10 days before such special record date, the Issuer shall
mail to each Noteholder a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on
defaulted interest, if any, to be paid. The Issuer may make payment of any
defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Notes may
be listed and, upon such notice as may be required by such exchange, if, after
written notice given by the Issuer to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by
the Trustee.
SECTION 2.14. CUSIP Number.
The Issuer in issuing the Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or exchange
as a convenience to Holders; provided, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Issuer shall promptly
notify the Trustee of any such CUSIP number used by the Issuer in connection
with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and Maturity Date, the Issuer shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or Maturity Date, as the case may be, in
a timely manner which permits the Trustee to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be. The principal
and interest on Global Notes shall be payable to the Depository or its nominee,
as the case may be, as the sole registered owner and the sole holder of the
Global Notes represented thereby. The principal and interest on Physical Notes
shall be payable, either in person or by mail, at the office of the Paying
Agent.
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SECTION 2.16. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes initially shall be represented by one or
more notes in registered, global form without interest coupons (collectively,
the "Rule 144A Global Notes"). Regulation S Notes initially shall be represented
by one or more notes in registered, global form without interest coupons
(collectively, the "Regulation S Global Note," and, together with the Rule 144A
Global Note and any other global notes representing Notes, the "Global Notes").
The Global Notes shall bear legends as set forth in Exhibit D. The Global Notes
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, in each case for credit to an account of an Agent Member
(or, in the case of the Regulation S Global Notes, of Euroclear System
("Euroclear") and Cedel Bank, S.A. ("CEDEL")), (ii) be delivered to the Trustee
as custodian for such Depository and (iii) bear legends as set forth in Exhibit
B with respect to Rule 144A Global Notes and Exhibit C with respect to
Regulation S Global Notes.
Members of, or direct or indirect participants in, the
Depository ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Notes, and the Depository may be
treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as
the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the
Trustee or any agent of the Issuer 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 Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of Global Notes shall be limited to transfer in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.17. In addition, a Global Note
shall be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Issuer that it is unwilling or unable to continue as depository for such Global
Note and the Issuer thereupon fails to appoint a successor depository or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Issuer, at its option, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Notes. In all cases, Physical
Notes delivered in exchange for any Global Note or beneficial interests therein
shall be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depository (in accordance with its customary
procedures).
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall
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(if one or more Physical Notes are to be issued) reflect on its books and
records the date and a decrease in the principal amount of the Global Note in an
amount equal to the principal amount of the beneficial interest in the Global
Note to be transferred, and the Issuer shall execute, and the Trustee shall upon
receipt of a written order from the Issuer authenticate and make available for
delivery, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Issuer
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b), (c) or
(d) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.17, bear the Private Placement Legend or, in the case of the
Regulation S Global Note, the legend set forth in Exhibit C, in each case,
unless the Issuer determines otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the
commencement of the offering of the Notes represented by the Regulation S Global
Note and the issue date of such Notes (such period through and including such
40th day, the "Restricted Period"), a beneficial interest in a Regulation S
Global Note may be transferred to a Person who takes delivery in the form of an
interest in the corresponding Rule 144A Global Note only upon receipt by the
Trustee of a written certification from the transferor to the effect that such
transfer is being made (i)(a) to a Person whom the transferor reasonably
believes is a Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A or (b) pursuant to another exemption from the
registration requirements under the Securities Act which is accompanied by an
opinion of counsel regarding the availability of such exemption and (ii) in
accordance with all applicable securities laws of any state of the United States
or any other jurisdiction.
(g) Beneficial interests in the Rule 144A Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred will be held immediately thereafter through Euroclear or
CEDEL.
(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global
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Note and, accordingly, shall thereafter be subject to all transfer restrictions
and other procedures applicable to beneficial interests in such other Global
Note for as long as it remains such an interest.
(i) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.17. 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 Note constituting a Restricted Note
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 Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is two years or
more after the Issue Date or such other date as such Note shall be
freely transferable under Rule 144 as certified in an Officer's
Certificate 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
substantially in the form of Exhibit E hereto or (2) in the case of a
transfer to a Non-U.S. Person (including a QIB), the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit F hereto; provided that in the case of any
transfer of a Note bearing the Private Placement Legend for a Note not
bearing the Private Placement Legend, the Registrar has received an
Officers' Certificate authorizing such transfer; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
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 Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Issuer shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
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(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed registration of transfer of a
Note constituting a Restricted Note 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 such Holder's Note stating, or has otherwise advised the Issuer
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 such Holder's Note stating, or has
otherwise advised the Issuer and the Registrar in writing, that it is
purchasing the Note 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 the Issuer 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 an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Global Note, upon receipt by
the Registrar of 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
the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) it has received the Officers'
Certificate required by paragraph (a)(i)(y) of this Section 2.17, (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Issuer 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 or (iii) such Note has been sold pursuant to an
effective registration statement under the Securities Act and the Registrar has
received an Officers' Certificate from the Issuer to such effect.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set
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forth in this Indenture and in the Private Placement Legend and agrees that it
will transfer such Note only as provided in this Indenture.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Issuer shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable notice to the Registrar.
SECTION 2.18. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to paragraph 6
of the Notes, at least 45 days prior to the Redemption Date (unless a shorter
notice shall be agreed to in writing by the Trustee) but not more than 60 days
before the Redemption Date, the Issuer shall notify the Trustee in writing of
the Redemption Date, the principal amount of Notes to be redeemed and the
redemption price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained in paragraph 6 of
the Notes. Notice given to the Trustee pursuant to this Section 3.01 may not be
revoked after the time that notice is given to Noteholders pursuant to Section
3.03.
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.
In the event that fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed, if the Notes are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Notes are not so listed, either on a pro rata basis or by
lot, or such other method as it shall deem fair and equitable; provided that if
a partial redemption is made with the proceeds of a Public Equity Offering,
selection of the Notes or portion thereof for redemption shall be made by the
Trustee on a pro rata basis to the extent practical, unless such a method is
prohibited. The Trustee shall promptly notify the Issuer of the Notes selected
for redemption and, in the case of any Notes selected for partial redemption,
the principal amount thereof to be redeemed. The Trustee may select for
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redemption portions of the principal of the Notes that have denominations larger
than $1,000. Notes and portions thereof the Trustee selects shall be redeemed in
amounts of $1,000 or whole multiples of $1,000. For all purposes of this
Indenture unless the context otherwise requires, provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Issuer shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.04 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and
accrued interest to be paid;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the Redemption
Date and upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that unless the Issuer defaults in making the
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date;
(7) the provision of paragraph 6 of the Notes, as the case
may be, pursuant to which the Notes called for redemption are being redeemed;
and
(8) the aggregate principal amount of Notes that are being
redeemed.
At the Issuer's written request made at least five Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Issuer's name and at the Issuer's sole expense.
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SECTION 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest accrued
to the Redemption Date. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date, provided that if the Redemption Date is after a regular
record date and on or prior to the Interest Payment Date, the accrued interest
shall be payable to the Holder of the redeemed Notes registered on the relevant
record date, and provided, further, that if a Redemption Date is a Legal
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Issuer shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of, including
premium, if any, and accrued interest on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date which
have been delivered by the Issuer to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of, including premium, if any, and accrued interest on
Notes called for redemption shall have been made available in accordance with
the preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive
payment of the redemption price of and, subject to the first proviso in Section
3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any
Note surrendered for redemption shall not be so paid, interest will be paid,
from the Redemption Date until such redemption payment is made, on the unpaid
principal of the Note and any interest not paid on such unpaid principal, in
each case, at the rate and in the manner provided in the Notes.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for the Holder thereof a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay the principal of and interest (including
all Additional Interest as provided in the Registration Rights Agreement or, in
the case of Notes issued subsequent to the Issue Date, a registration rights
agreement substantially identical to the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Issuer shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. Reports to Holders.
(a) Whether or not required by the rules and regulations of
the Commission, the Issuer shall furnish to the Trustee and the Holders of the
Notes all annual and quarterly financial information that would be required to
be contained in a filing with the Commission on Forms 10-K, 10-Q and 8-K, as
applicable, if the Issuer were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual financial information, a report
thereon by the Issuer's independent accountants; provided, that (x) such
quarterly financial information may be prepared in accordance with GAAP, (y)
such quarterly financial information shall be furnished within 60 days following
the end of each fiscal quarter of the Issuer and (z) such annual financial
information shall be furnished within 120 days following the end of the fiscal
year of the Issuer. In addition, whether or not required by the rules and
regulations of the Commission, the Issuer will file a copy of all such
information and reports with the Commission for public availability (unless the
Commission will not accept such a filing). In addition, the Issuer shall furnish
to the Holders of the Notes and to prospective investors, upon the requests of
such Holders, any information required to be delivered pursuant to Rule 144
under the Securities Act so long as the Notes are not freely transferable under
the Securities Act. The Issuer will also comply with the other provisions of TIA
Section 314(a).
(b) The Issuer shall, upon request, provide to any Holder of
Notes or any prospective transferee of any such Holder any information
concerning the Issuer (including financial statements) necessary in order to
permit such Holder to sell or transfer Notes in
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compliance with Rule 144A under the Securities Act; provided, that the Issuer
shall not be required to furnish such information in connection with any request
made on or after the date which is two years (or such other date as the Notes
shall be freely transferable pursuant to Rule 144) from the later of (i) the
date such Note (or any predecessor Note) was acquired from the Issuer or (ii)
the date such Note (or any predecessor Note) was last acquired from an
"affiliate" of the Issuer within the meaning of Rule 144 under the Securities
Act. The Issuer shall provide the Trustee a copy of any information provided to
holders under this Section 4.02.
SECTION 4.03. Waiver of Stay, Extension or Usury Laws.
The Issuer and the Guarantors covenant (to the extent that
they may lawfully do so) that they shall not at any time insist upon, or plead
(as a defense or otherwise) or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
which would prohibit or forgive the Issuer and the Guarantors from paying all or
any portion of the principal of, premium, if any, and/or interest on the Notes
as contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that they may lawfully do so) the Issuer and the Guarantors hereby
expressly waive all benefit or advantage of any such law, and covenant that they
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.04. Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 90 days
after the end of each fiscal year and within 45 days after the end of the first,
second and third quarters of each fiscal year, an Officers' Certificate stating
that a review of the activities of the Issuer and its Subsidiaries during such
fiscal year or fiscal quarter, as the case may be, has been made under the
supervision of the signing Officers with a view to determining whether the
Issuer and the Guarantors have kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Issuer
and the Guarantors have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and are not in default in the performance
or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action they are
taking or propose to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Issuer and the Guarantors is taking or propose to take with respect
thereto.
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(b) The Issuer and the Guarantors shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Issuer and the
Guarantors are taking or propose to take with respect thereto.
(c) The Issuer's fiscal year currently ends on December 31.
The Issuer will provide written notice to the Trustee of any change in its
fiscal year.
SECTION 4.05. Taxes.
The Issuer and the Guarantors shall, and shall cause each of
their Subsidiaries to, pay prior to delinquency all material taxes, assessments,
and governmental levies except as contested in good faith and by appropriate
proceedings.
SECTION 4.06. Limitation on Additional Indebtedness.
The Issuer will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, incur (as defined) any
Indebtedness (including, without limitation, any Acquired Indebtedness);
provided that if no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the incurrence of such
Indebtedness, the Issuer may incur Indebtedness (including any Acquired
Indebtedness) if the Issuer's Consolidated Fixed Charge Coverage Ratio is
greater than 2.0 to 1.
Notwithstanding the foregoing, the Issuer and its Restricted
Subsidiaries may incur Permitted Indebtedness.
For purposes of determining compliance with this covenant, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (i) through (xii)
of the definition of Permitted Indebtedness or is entitled to be incurred
pursuant to the first paragraph hereof, the Issuer may, in its sole discretion,
classify such item of Indebtedness in any manner that complies with this
covenant and such item of Indebtedness will be treated as having been incurred
pursuant to only one of such clauses or pursuant to the first paragraph hereof.
SECTION 4.07. Limitation on Restricted Payments.
The Issuer will not make, and will not cause or permit any of
its Restricted Subsidiaries to make, directly or indirectly, any Restricted
Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
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(b) immediately after giving pro forma effect to such
Restricted Payment, the Issuer could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the covenant set
forth under Section 4.06 hereof; and
(c) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments declared or
made after the Issue Date does not exceed the greater of (i) $5 million
or (ii) the sum (without duplication) of (A) 50% of the Issuer's
cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) earned (or accrued, as
the case may be) during the period beginning on the first day of the
Issuer's fiscal quarter commencing prior to the Issue Date and ending
on the last day of the fiscal quarter for which financial statements
are available immediately preceding the date of such proposed
Restricted Payment (treating such period as a single accounting
period); (B) 100% of the aggregate net cash proceeds received by the
Issuer from the issuance or sale after the Issue Date (other than to a
Subsidiary) of (1) Capital Stock (other than Disqualified Capital
Stock) of the Issuer or (2) any Indebtedness or other securities of the
Issuer that are convertible into or exercisable or exchangeable for
Capital Stock (other than Disqualified Capital Stock) of the Issuer,
which have been so converted, exercised or exchanged, as the case may
be; excluding, in the case of clause (c)(ii)(B), any net cash proceeds
from a Public Equity Offering to the extent used to redeem the Notes in
accordance with paragraph 6 of the Notes; (C) without duplication of
any amounts included in clause (A) above, so long as the Designation
thereof was treated as a Restricted Payment made after the Issue Date,
with respect to any Unrestricted Subsidiary that has been redesignated
as a Restricted Subsidiary after the Issue Date in accordance with the
definition of "Restricted Subsidiary," the Issuer's proportionate
interest in an amount equal to the Fair Market Value of the Issuer's
interest in such Subsidiary; provided that such amount shall not in any
case exceed the Designation Amount with respect to such Restricted
Subsidiary at the time of its Designation; and (D) in the case of the
disposition or repayment of any Investment constituting a Restricted
Payment made after the Issue Date, an amount equal to the lesser of the
return of capital with respect to such Investment and the initial
amount of such Investment which was treated as a Restricted Payment, in
either case, less the cost of the disposition of such Investment and
net of taxes. For purposes of determining the amount expended for
Restricted Payments under this clause (c), property other than cash
shall be valued at its Fair Market Value.
Provided no Default or Event of Default has occurred and is
continuing, the provisions of this covenant shall not prevent (i) the payment of
any dividend or distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture, (ii) the repurchase, redemption or other
acquisition or retirement of any shares of Capital Stock of the Issuer or
Indebtedness subordi-
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nated to the Notes by conversion into, or by or in exchange for, shares of
Capital Stock of the Issuer (other than Disqualified Capital Stock), or out of
the net cash proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Issuer) of other shares of Capital Stock of the Issuer (other
than Disqualified Capital Stock); provided that any such net cash proceeds are
excluded from clause(c)(ii)(B) of the immediately preceding paragraph for the
purposes of this calculation (and were not included therein at any time) and are
not used to redeem the Notes pursuant to paragraph 6 of the Notes, (iii) the
redemption, repayment or retirement of Indebtedness of the Issuer subordinated
to the Notes in exchange for, by conversion into, or out of the net cash
proceeds of, (x) a substantially concurrent sale or incurrence of Indebtedness
of the Issuer (other than any Indebtedness owed to a Subsidiary) that is
contractually subordinated in right of payment to the Notes to at least the same
extent as the Indebtedness being redeemed, repaid or retired or (y) a
substantially concurrent sale (other than to a Subsidiary of the Issuer) of
shares of Capital Stock of the Issuer; provided that any such net cash proceeds
and the fair value of any Capital Stock issued in exchange for such retired
Disqualified Capital Stock are excluded from clause (c)(ii)(B) of the
immediately preceding paragraph (and were not included therein at any time) and
are not used to redeem the Notes pursuant to paragraph 6 of the Notes, (iv) the
retirement of any shares of Disqualified Capital Stock of the Issuer by
conversion into, or by exchange for, shares of Capital Stock of the Issuer, or
out of the net cash proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Issuer) of other shares of Capital Stock of the Issuer;
provided that any such net cash proceeds and the Fair Market Value of any
Capital Stock issued in exchange for such retired Disqualified Capital Stock are
excluded from clause (c)(ii)(B) of the immediately preceding paragraph (and were
not included therein at any time) and are not used to redeem the Notes pursuant
to paragraph 6 of the Notes, (v) the purchase, redemption or other acquisition
for value of shares of Capital Stock of the Issuer (other than Disqualified
Capital Stock) or options on such shares held by officers or employees or former
officers or employees (or their estates or beneficiaries under their estates)
upon the death, disability, retirement or termination of employment of such
current or former officers or employees pursuant to the terms of an employee
benefit plan or any other agreement pursuant to which such shares of capital
stock or options were issued or pursuant to a severance, buy-sell or right of
first refusal agreement with such current or former officer or employee;
provided that the aggregate cash consideration paid, or distributions made,
pursuant to this clause (v) do not exceed $3.0 million, (vi) the making of
Investments in Unrestricted Subsidiaries, joint ventures and other entities in
an amount not to exceed $2.0 million in the aggregate at any one time
outstanding and (vii) the redemption of the Convertible Preferred Stock in
conjunction with any Tax Settlement or in conjunction with Indebtedness
permitted under this Indenture (provided however, that the Issuer shall not be
prevented from redeeming the Convertible Preferred Stock on or after January 3,
2006 by reason of any Default or Event of Default). In calculating the aggregate
amount of Restricted Payments made subsequent to the Issue Date for purposes of
clause (c) of the immediately preceding paragraph, amounts expended pursuant to
clauses (i), (vi) and (vii) shall be included in such calculation and (ii),
(iii), (iv) and (v) shall not be included in such calculation.
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Not later than the date of making any Restricted Payment, the
Issuer shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant described above were computed, which
calculations may be based upon the Issuer's latest available financial
statements, and that no Default or Event of Default has occurred and is
continuing and no Default or Event of Default will occur immediately after
giving effect to any such Restricted Payments.
SECTION 4.08. Limitations on Liens.
The Issuer will not, and will not cause or permit any of its
Restricted Subsidiaries to, create, incur or otherwise cause or suffer to exist
or become effective any Liens of any kind (other than Permitted Liens) upon any
property or asset of the Issuer or any of its Restricted Subsidiaries, unless
(i) if such Lien secures Indebtedness which is ranked pari passu with the Notes
or any Guarantee, then the Notes or such Guarantee, as the case may be, 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 or (ii) if such Lien
secures Indebtedness which is subordinated to the Notes or any Guarantee, then
the Notes or such Guarantee, as the case may be, are secured and the Lien
securing such other Indebtedness shall be subordinated to the Lien granted to
the holders of the Notes or such Guarantee, as the case may be, at least to the
same extent as such Indebtedness is subordinated to the Notes or such Guarantee,
as the case may be.
SECTION 4.09. Limitation on Transactions with Affiliates.
The Issuer will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (each an "Affiliate Transaction") or extend, renew,
waive or otherwise modify the terms of any Affiliate Transaction entered into
prior to the Issue Date unless (i) such Affiliate Transaction is between or
among the Issuer and its Wholly-Owned Subsidiaries; or (ii) the terms of such
Affiliate Transaction are fair to the Issuer or such Restricted Subsidiary, as
the case may be, and are at least as favorable as the terms which could be
obtained by the Issuer or such Restricted Subsidiary, as the case may be, in a
comparable transaction made on an arm's-length basis between unaffiliated
parties. In any Affiliate Transaction (or any series of related Affiliate
Transactions) involving an amount or having a Fair Market Value in excess of
$3.0 million which is not permitted under clause (i) of the immediately
preceding sentence, the Issuer must obtain a resolution of the Board of
Directors of the Issuer certifying in good faith that it has approved such
Affiliate Transaction and determined that such Affiliate Transaction complies
with clause (ii) of the immediately preceding sentence. In addition, in any
Affiliate Transaction (or any series of related Affiliate Transac-
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tions) involving an amount or having a Fair Market Value in excess of $10.0
million which is not permitted under clause (i) of the second preceding
sentence, the Issuer must obtain a written opinion from an Independent Financial
Advisor that such transaction or transactions are fair to the Issuer or such
Restricted Subsidiary, as the case may be, from a financial point of view;
provided that the provisions of this sentence shall not apply to the (i) sale of
inventory in the ordinary course of business or (ii) payments made to
International Marine Terminals, on an arm's-length basis in the ordinary course
of business, relating to the loading of coal onto ships or in accordance with
the Issuer's financial obligations, if any, pursuant to the Issuer's contractual
partnership obligations existing on the Issue Date with respect to International
Marine Terminals.
The foregoing provisions will not apply to (i) any Restricted
Payment made in compliance with Section 4.07 hereof, (ii) reasonable fees and
compensation paid to and indemnity provided on behalf of officers, directors or
employees of the Issuer or any Restricted Subsidiary of the Issuer as determined
in good faith by the Issuer's Board of Directors or senior management or (iii)
any written agreement in existence on the Issue Date which has been disclosed in
the Offering Memorandum in respect of the Notes and any such extension, renewal
or substitution that does not materially alter the financial and economic risks
and obligations of the Issuer thereto from those existing on the Issue Date.
SECTION 4.10. Limitation on Creation of Subsidiaries.
The Issuer will not create or acquire, nor permit any of its
Restricted subsidiaries to create or acquire, any Subsidiary other than (i) a
Restricted Subsidiary existing as of the date of this Indenture, (ii) a
Restricted Subsidiary conducting a business similar or reasonably related to the
coal mining and marketing businesses of the Issuer and its Subsidiaries on the
Issue Date, or (iii) an Unrestricted Subsidiary; provided, however, that each
Restricted Subsidiary acquired or created pursuant to clause (ii) shall at the
time it has either assets or shareholders' equity in excess of $25,000 have
evidenced its guarantee with such documentation, satisfactory in form and
substance to the Trustee relating thereto as the Trustee shall require,
including, without limitation a supplement or amendment to this Indenture and
opinions of counsel as to the enforceability of such guarantee, pursuant to
which such Restricted Subsidiary shall become a Guarantor.
SECTION 4.11. Limitation on Certain Asset Sales.
(a) The Issuer will not, and will not cause or permit any of
its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Issuer
or such applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such sale or other disposition at least equal to
the Fair Market Value of the assets sold or otherwise disposed of; (ii) not less
than 75% of the consideration received by the Issuer or such applicable
Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents, (provided, that the amount of
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any Indebtedness (other than subordinated Indebtedness) of the Issuer or any
Guarantor that is actually assumed by the transferee in such Asset Sale and from
which the Issuer and the Guarantors are fully and unconditionally released shall
be deemed to be cash for purposes of clause (i) above; and (iii) the Asset Sale
Proceeds received by the Issuer or such Restricted Subsidiary, as the case may
be, are applied (or, at the Issuer's election, are deemed to have been applied
to an event described under clauses (iii)(a) or (iii)(b) occurring within 45
days prior to the receipt of such Asset Sale Proceeds, provided, that the
Issuer's intent to apply Asset Sale Proceeds to such an event must have been
announced by letter to the Trustee prior to the occurrence of the event), at the
Issuer's option, (a) to prepay, repay or purchase indebtedness under the Credit
Facility or any other secured Indebtedness of the Issuer or such Restricted
Subsidiary; provided that any such repayment shall result in or the Issuer shall
effect a permanent reduction of the commitments thereunder in an amount equal to
the principal amount so repaid; or (b) to an Investment in properties and assets
that are used or useful in the business of the Issuer or its Restricted
Subsidiaries or in businesses similar to or ancillary to the business of the
Issuer or its Restricted Subsidiaries as conducted at the time of such Asset
Sale (and, pending such use, may be used to temporarily reduce indebtedness
under the Credit Facility or may invest such Asset Sale Proceeds in any manner
not prohibited by this Indenture); provided that, (c) if on the 360th day
following the receipt of the Asset Sale Proceeds, the Available Asset Sale
Proceeds exceed $5.0 million, the Issuer shall apply an amount equal to the
Available Asset Sale Proceeds to an offer to repurchase the Notes, at a purchase
price in cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, to the purchase date (an "Excess Proceeds Offer"). If
an Excess Proceeds Offer is not fully subscribed, the Issuer may retain and use
for general corporate purposes the portion (any such portion, a "Deficiency") of
the Available Asset Sale Proceeds not required to repurchase Notes. Upon
completion of any Excess Proceeds Offer, the amount of Available Asset Sale
Proceeds shall be reset to zero.
(b) If the Issuer is required to make an Excess Proceeds
Offer, the Issuer shall mail, within 30 days following the date specified in
clause (iii)(c) above, a notice to the holders stating among other things: (1)
that such holders have the right to require the Issuer to apply the Available
Asset Sale Proceeds to repurchase such Notes at a purchase price in cash equal
to 100% of the principal amount thereof plus accrued and unpaid interest, if
any, to the purchase date; (2) the purchase date, which shall be no earlier than
30 days and not later than 60 days from the date such notice is mailed; (3) the
instructions that each holder must follow in order to have such Notes purchased;
and (4) the calculations used in determining the amount of Available Asset Sale
Proceeds to be applied to the purchase of such Notes.
(c) In the event of the transfer of substantially all (but not
all) of the property and assets of the Issuer and its Restricted Subsidiaries as
an entirety to a Person (other than a Guarantor) in a transaction permitted
under Section 5.01 hereof, the successor Person shall be deemed to have sold the
properties and assets of the Issuer and its Restricted Subsidiaries not
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so transferred for purposes of this Section 4.11, and shall comply with the
provisions of this covenant with respect to such deemed sale as if it were an
Asset Sale.
The Issuer will comply with the requirements of Rule 14e-1
under the Exchange Act and other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Excess Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.11, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.11 by virtue thereof.
SECTION 4.12. Limitation on Capital Stock of Restricted Subsidiaries.
The Issuer will not (i) sell, pledge, hypothecate or otherwise
convey or dispose of any Capital Stock of a Restricted Subsidiary of the Issuer
(other than under the Credit Facilities) or (ii) permit any of its Restricted
Subsidiaries to issue any Capital Stock, other than to the Issuer or a
Restricted Subsidiary of the Issuer. The foregoing restrictions shall not apply
to an Asset Sale consisting of 100% of the Capital Stock of a Restricted
Subsidiary owned by the Issuer made in compliance with Section 4.11 hereof.
SECTION 4.13. Limitation on Sale and Lease-Back Transactions.
The Issuer will not, and will not cause or permit any of its
Restricted Subsidiaries to, enter into any Sale and Lease-Back Transaction
unless (i) the consideration received in such Sale and Lease-Back Transaction is
at least equal to the Fair Market Value of the property sold, as determined by a
board resolution of the Issuer, and (ii) immediately prior to and after giving
effect to the Attributable Indebtedness in respect of such Sale and Lease-Back
Transaction, the Issuer could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.06 hereof.
SECTION 4.14. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
The Issuer will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Issuer to (a)(i) pay dividends or
make any other distributions to the Issuer or any Restricted Subsidiary of the
Issuer (A) on its Capital Stock or (B) with respect to any other interest or
participation in, or measured by, its profits or (ii) repay any Indebtedness or
any other obligation owed to the Issuer or any Restricted Subsidiary of the
Issuer, (b) make loans or advances or capital contributions to the Issuer or any
of its Restricted Subsidiaries or (c) transfer any of its properties or assets
to the Issuer or any of its Restricted Subsidiaries, except for such
encum-
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brances or restrictions existing under or by reason of (i) encumbrances or
restrictions existing on the Issue Date to the extent and in the manner such
encumbrances and restrictions are in effect on the Issue Date, (ii) this
Indenture, the Notes and the Guarantees, (iii) applicable law, (iv) any
instrument governing Acquired Indebtedness as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred by such Person
in connection with, as a result of or in anticipation or contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person (including any Subsidiary of the Person), so
acquired, (v) customary non-assignment provisions in leases or other agreements
entered in the ordinary course of business and consistent with past practices,
(vi) encumbrances or restrictions under the Credit Facility or a Foreign Credit
Facility; provided that, in each case, all Indebtedness under such facilities
was incurred in compliance with this Indenture, (vii) Refinancing Indebtedness;
provided that such restrictions are no more restrictive than those contained in
the agreements governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded, (viii) customary restrictions in security
agreements or mortgages securing Indebtedness of the Issuer or a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the property
subject to such security agreements and mortgages or (ix) customary restrictions
with respect to a Restricted Subsidiary of the Issuer pursuant to an agreement
that has been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary.
SECTION 4.15. Payments for Consent.
The Issuer will not, and will not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid or agreed to be paid to all holders of the Notes which so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.16. Legal Existence.
Subject to Article 5 hereof, the Issuer shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its legal existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted Subsidiaries if the
Board of Directors of the Issuer shall determine that the preserva-
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tion thereof is no longer desirable in the conduct of the business of the Issuer
and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders.
SECTION 4.17. Change of Control Offer.
(a) Upon the occurrence of a Change of Control, the Issuer
shall be obligated to make an offer to purchase (the "Change of Control Offer")
all outstanding Notes at a purchase price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Change of Control Payment Date (as defined) in
accordance with the procedures set forth below.
(b) Within 30 days of the occurrence of a Change of Control,
the Issuer shall (i) cause a notice of the Change of Control Offer to be sent at
least once to the Dow Xxxxx News Service or similar business news service in the
United States and (ii) send by first-class mail, postage prepaid, to the Trustee
and to each Holder of the Notes, at the address appearing in the register
maintained by the Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.17 and that all Notes tendered will be accepted for
payment;
(2) the Change of Control Purchase Price and the purchase date
(which shall be a Business Day no earlier than 30 days nor later than
60 days from the date such notice is mailed (the "Change of Control
Payment Date"));
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Issuer defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(5) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day preceding the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their acceptance
if the Paying Agent receives, not later than the close of business on
the third Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Notes delivered for
purchase, and a statement that such Holder is withdrawing his election
to have such Notes purchased;
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(7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered; provided that each Note purchased and
each such new Note issued shall be in an original principal amount in
denominations of $1,000 and integral multiples thereof;
(8) any other procedures that a holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Issuer shall, to
the extent lawful, (i) accept for payment Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officers' Certificate stating the Notes or
portions thereof tendered to the Issuer. The Paying Agent shall promptly mail to
each holder of Notes so accepted payment in an amount equal to the purchase
price for such Notes, and the Issuer shall execute and issue, and the Trustee
shall promptly authenticate and mail to such Holder, a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered; provided
that each such new Note shall be issued in an original principal amount in
denominations of $1,000 and integral multiples thereof.
(c) (i) If the Issuer or any Restricted Subsidiary thereof has
issued any outstanding (A) indebtedness that is subordinated in right of payment
to the Notes or (B) Preferred Stock, and the Issuer or such Restricted
Subsidiary is required to make a Change of Control Offer or to make a
distribution with respect to such subordinated indebtedness or Preferred Stock
in the event of a change of control, the Issuer shall not consummate any such
offer or distribution with respect to such subordinated indebtedness or
Preferred Stock until such time as the Issuer shall have paid the Change of
Control Purchase Price in full to the holders of Notes that have accepted the
Issuer's Change of Control Offer and shall otherwise have consummated the Change
of Control Offer made to holders of the Notes and (ii) the Issuer will not issue
Indebtedness that is subordinated in right of payment to the Notes or Preferred
Stock with change of control provisions requiring the payment of such
Indebtedness or Preferred Stock prior to the payment of the Notes in the event
of a Change in Control under this Indenture.
The Issuer will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.17, the Issuer shall comply with the applicable securities
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laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.17 by virtue thereof.
SECTION 4.18. [Intentionally Omitted]
SECTION 4.19. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(a) The Issuer shall, and shall cause each of its Restricted
Subsidiaries to, at all times cause all properties used or useful in the conduct
of their business to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto.
(b) The Issuer shall maintain, and shall cause to be
maintained for each of its Restricted Subsidiaries, insurance covering such
risks as are usually and customarily insured against by corporations similarly
situated, in such amounts as shall be customary for corporations similarly
situated and with such deductibles and by such methods as shall be customary and
reasonably consistent with past practice.
(c) The Issuer shall, and shall cause each of its Subsidiaries
to, keep proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Issuer and each Subsidiary of the Issuer, in accordance with GAAP consistently
applied to the Issuer and its Subsidiaries taken as a whole.
(d) The Issuer shall, and shall cause each of its Subsidiaries
to, comply with all statutes, laws, ordinances or government rules and
regulations to which they are subject, non-compliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or financial condition of the Issuer and their Subsidiaries taken as a
whole.
SECTION 4.20. Further Assurance to the Trustee.
The Issuer shall, upon the reasonable request of the Trustee,
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions of
this Indenture.
SECTION 4.21. Limitation on Conduct of Business.
The Issuer and its Restricted Subsidiaries will not engage in
any businesses which are not the same as, similar or related to the businesses
in which the Issuer and its Restricted Subsidiaries are engaged in on the Issue
Date.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Consolidation, Amalgamation, Merger and Sale of
Assets.
(a) The Issuer will not consolidate with, amalgamate with,
merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of the assets of the Issuer (determined on a
consolidated basis for the Issuer and its Restricted Subsidiaries) as an
entirety or substantially as an entirety in one transaction or a series of
related transactions, to, any Person unless: (i) the Issuer, shall be the
continuing Person, or the Person (if other than the Issuer)) formed by such
consolidation or amalgamation or into which the Issuer, is merged or to which
the properties and assets of the Issuer, are sold, assigned, transferred,
leased, conveyed or otherwise disposed of shall be a corporation organized and
existing under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
of the obligations of the Issuer , under this Indenture, and the Notes, and the
obligations thereunder shall remain in full force and effect; (ii) immediately
before and immediately after giving effect to such transaction (including,
without limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection with
or in respect of the transaction), no Default or Event of Default shall have
occurred and be continuing; and (iii) immediately after giving effect to such
transaction on a pro forma basis the Issuer or such Person (A) shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Issuer immediately prior to such transaction and (B) could incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) under
Section 4.06 hereof; provided that a Person that is a Restricted Subsidiary may
consolidate with, amalgamate with, merge with, or sell, assign, transfer, lease,
convey to or otherwise dispose of all or substantially all of its assets to
Guarantor may merge into the Issuer or another Restricted Subsidiary without
complying with this clause (iii).
(b) In connection with any consolidation, merger or transfer
of assets contemplated by this provision, the Issuer shall deliver, or cause to
be delivered, to the Trustee, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an opinion of counsel, each stating
that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.01 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.
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For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Issuer, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the Issuer,
shall be deemed to be the transfer of all or substantially all of the properties
and assets of the Issuer.
Each Guarantor (other than any Guarantor whose Guarantee is to
be released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.11)
will not, and the Issuer will not cause or permit any Guarantor to, consolidate
with or merge with or into or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets to any Person (other than a
merger of the Issuer with any Guarantor or a merger of Guarantors or a sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of a Guarantor to the Issuer or to any other
Guarantor) unless: (i) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) or to which such sale, lease, conveyance
or other disposition shall have been made is a corporation organized and validly
existing under the laws of the United States or any state thereof or the
District of Columbia; (ii) such entity assumes by supplemental indenture all of
the obligations of such Guarantor under such Guarantee; and (iii) immediately
before and immediately after giving effect to such transaction, no default or
Event of Default shall have occurred or be continuing.
SECTION 5.02. Successor Person Substituted.
Upon any consolidation amalgamation or merger, or any transfer
of all or substantially all of the assets of the Issuer or any Restricted
Subsidiary in accordance with Section 5.01 above, the successor corporation
formed by such consolidation or amalgamation or into which the Issuer is merged
or to which such transfer is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer or such Restricted Subsidiary
under this Indenture with the same effect as if such successor corporation had
been named as the Issuer or such Restricted Subsidiary herein, and thereafter
the predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
The following events are "Events of Default":
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(1) default in the payment of any principal of, or premium, if
any, on the Notes when due (whether at maturity, upon redemption or
otherwise);
(2) default in the payment of any interest on any Note when due
and which default continues for 45 days or more;
(3) default by the Issuer or any Restricted Subsidiary in the
observance or performance of any other covenant in the Notes or this
Indenture for 30 days after written notice from the Trustee or the
holders of not less than 25% in aggregate principal amount of the Notes
then outstanding (except in the case of a default with respect to
Sections 4.17 or 5.01, which shall constitute an Event of Default with
such notice requirement but without such passage of time requirement);
(4) failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any indebtedness of the Issuer or any Restricted Subsidiary
of the Issuer, or the acceleration of the final stated maturity of such
indebtedness, if, in either case, the aggregate principal amount of
such indebtedness, together with the principal amount of any such
indebtedness in default or failure to pay principal at final maturity
or which has been accelerated, aggregates $5.0 million or more at any
time and such indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
final maturity or acceleration;
(5) any final judgment or judgments which can no longer be
appealed for the payment of money in excess of $5.0 million (net of
amounts covered by insurance) shall be rendered against the Issuer or
any Restricted Subsidiary thereof, and shall not be discharged for any
period of 60 consecutive days during which a stay of enforcement shall
not be in effect;
(6) the Issuer or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of
its creditors, or
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(E) generally is not paying its debts as they become
due;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against either of the Issuer or any
Restricted Subsidiary in an involuntary case,
(B) appoints a Custodian of either of the Issuer or
any Restricted Subsidiary or for all or substantially all of
the property of either of the Issuer or any Restricted
Subsidiary, or
(C) orders the liquidation of either of the Issuer or
any Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(8) any of the Guarantees of a Material Subsidiary ceases to be
in full force and effect or any of the Guarantees of a Material
Subsidiary is declared to be null and void and unenforceable or any of
the Guarantees of a Material Subsidiary is found to be invalid or any
of the Guarantors denies its liability under its Guarantee (other than
by reason of release of a Guarantor in accordance with Section 10.05
hereof).
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Subject to Sections 7.01 and 7.02, the Trustee shall not be
charged with knowledge of any Default, Event of Default, Change of Control or
Asset Sale or the requirement for payment of Additional Interest unless written
notice thereof shall have been given to a Responsible Officer at the Corporate
Trust Office of the Trustee by the Issuer or any other Person.
(9) any of the Guarantees of a Material Subsidiary are
determined in a judicial proceeding (i) to be not in full force and
effect, (ii) to be null and void and unenforceable, or (iii) to be
invalid; or any of the Guarantors denies its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance
with Section 10.05 hereof).
The Trustee may withhold notice to the holders of the Notes of
any default (except in payment of principal or premium, if any, or interest on
the Notes or a default in the
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observance or performance of Section 5.01) if the Trustee considers it to be in
the best interest of the holders of the Notes to do so.
If an Event of Default (other than an Event of Default
described in clauses (6) or (7) above) shall have occurred and be continuing,
then the Trustee or the holders of not less than 25% in aggregate principal
amount of the Notes then outstanding by written notice to the Issuer and the
Trustee may declare to be immediately due and payable the entire principal
amount of all the Notes then outstanding plus accrued interest to the date of
acceleration and the same shall become immediately due and payable; provided
that after such acceleration but before a judgment or decree based on
acceleration is obtained by the Trustee, the holders of a majority in aggregate
principal amount of outstanding Notes may, under certain circumstances, rescind
and annul such acceleration if (i) all Events of Default, other than nonpayment
of principal, premium, if any, or interest that has become due solely because of
the acceleration, have been cured or waived as provided in this Indenture, (ii)
to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid, (iii) if the Issuer has
paid the Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances and (iv) in the event of the cure or waiver
of an Event of Default of the type described in clauses (6) or (7) of the above
Events of Default, the Trustee shall have received an Officers' Certificate and
an opinion of counsel that such Event of Default has been cured or waived. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default of the type described in clauses
(6) or (7) of the above Events of Default shall occur, the principal, premium
and interest amount with respect to all of the Notes shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the holders of the Notes.
The holders of a majority in principal amount of the Notes
then outstanding shall have the right to waive any existing default or
compliance with any provision of this Indenture or the Notes and to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, subject to certain limitations provided for in this Indenture and
under the TIA.
No holder of any Note will have any right to institute any
proceeding with respect to this Indenture or for any remedy thereunder, unless
such holder shall have previously given to the Trustee written notice of a
continuing Event of Default and unless the holders of at least 25% in aggregate
principal amount of the outstanding Notes shall have made written request and
offered indemnity satisfactory to the Trustee to institute such proceeding as
Trustee, and unless the Trustee shall not have received from the holders of a
majority in aggregate principal amount of the outstanding Notes a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days. Notwithstanding the foregoing, such
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limitations do not apply to a suit instituted on such Note on or after the
respective due dates expressed in such Note.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Subject to Sections 7.01 and 7.02, the Trustee shall not be
charged with knowledge of any Default, Event of Default, Change of Control or
Asset Sale or the requirement for payment of Additional Interest unless written
notice thereof shall have been given to a Responsible Officer at the Corporate
Trust Office of the Trustee by the Issuer or any other Person.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default
described in Section 6.01(6) or (7)) shall have occurred and be continuing, then
the Trustee or the holders of not less than 25% in aggregate principal amount of
the Notes then outstanding by written notice to the Issuer and the Trustee may
declare to be immediately due and payable the entire principal amount of all the
Notes then outstanding plus accrued interest to the date of acceleration and the
same shall become immediately due and payable; provided that after such
acceleration but before a judgment or decree based on acceleration is obtained
by the Trustee, the holders of a majority in aggregate principal amount of
outstanding Notes may rescind and annul such acceleration if (i) all Events of
Default, other than non-payment of principal, premium, if any, or interest that
has become due solely because of the acceleration, have been cured or waived as
provided in this Indenture, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, (iii) if the Issuer has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances and (iv)
in the event of the cure or waiver of an Event of Default of the type described
in clauses (6) or (7) of the above Events of Default, the Trustee shall have
received an Officers' Certificate and an opinion of counsel that such Event of
Default has been cured or waived. No such rescission shall affect any subsequent
Default or impair any right consequent thereto. In case an Event of Default
resulting from certain events of bankruptcy, insolvency or reorganization shall
occur, the principal, premium and interest amount with respect to all of the
Notes shall be due and payable immediately without any declaration or other act
on the part of the Trustee or the holders of the Notes.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or
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premium, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture and may take any necessary action
requested of it as Trustee to settle, compromise, adjust or otherwise conclude
any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder 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 cumulative. Any costs
associated with actions taken by the Trustee under this Section 6.03 shall be
reimbursed to the Trustee by the Issuer.
SECTION 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.08 and 8.02 hereof, the Holders of
a majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes
then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another
Noteholder not taking part in such direction, and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or if
the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
Subject to Section 6.08 below, a Noteholder may not institute
any proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
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(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and if requested provide to
the Trustee indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer, and, if requested,
provision of, indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of
the Issuer or any Guarantor shall have any liability for any obligations of the
Issuer or the Guarantors under the Notes, the Guarantees or this Indenture or
for a claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes.
SECTION 6.08. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note (including Additional Interest) on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement
of any such payment on or after such respective dates, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.
SECTION 6.09. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Issuer or the Guarantors (or any other obligor on the Notes)
for the whole amount of unpaid principal and accrued interest remaining
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unpaid, together with interest on overdue principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate set forth in the Notes, and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.10. 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 (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof) and the Noteholders allowed
in any judicial proceedings relative to the Issuer or the Guarantors (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceedings.
SECTION 6.11. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest (including Additional
Interest, if any) as to each, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes; and
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THIRD: to the Issuer or, to the extent the Trustee collects
any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.11.
SECTION 6.12. 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, 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 6.12 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.08 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
SECTION 6.13. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuer, the Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible
Officer of the Trustee has occurred and is continuing, the Trustee shall
exercise such of 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 circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
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(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(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
but, 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 be under a duty to examine
the same to determine whether or not they conform on their
face to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(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 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(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 the
terms hereof.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its rights,
powers or duties if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (e) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it in its sole
discretion against any loss, liability, expense or fee.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer or any
Guarantor. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by the law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may conclusively rely on any document
reasonably believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 11.05 hereof. The
Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.
(3) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed by it with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers; provided that the Trustee's
conduct does not constitute gross negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the either of the Issuer or any
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. 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 Notes or
any Guarantee, it shall not be accountable for the Issuer's or any Guarantor's
use of the proceeds from the sale of Notes or any
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money paid to the Issuer or any Guaranty pursuant to the terms of this Indenture
and it shall not be responsible for any statement in the Notes, Guarantee or
this Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of, or premium, if any, or interest on any Note or a default in
the observance or performance of any of the obligations of the Issuer under
Article Five, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determine(s) that withholding the
notice is in the best interest of the Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after May 15
of any year, commencing May 15, 1999 the Trustee shall mail to each Noteholder a
brief report dated as of such May 15 that complies with TIA ss. 313(a). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c) and TIA Section
313(d).
Reports pursuant to this Section 7.06 shall be transmitted by
mail:
(1) to all Holders of Notes, as the names and addresses of
such Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose.
A copy of each report at the time of its mailing to
Noteholders shall be filed with the Commission and each stock exchange on which
the Notes are listed. The Issuer shall promptly notify the Trustee when the
Notes are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Issuer and the Guarantors shall pay to the Trustee and
Agents from time to time such compensation for its services hereunder as the
parties shall agree from time to time (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust). The Issuer and the Guarantors shall reimburse the Trustee and Agents
upon request for all reasonable disbursements, expenses and advances incurred
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or made by it in connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuer and the Guarantors shall indemnify each of the
Trustee and any predecessor Trustee for, and hold each of them harmless against,
any and all loss, damage, claim, liability or expense, including without
limitation taxes (other than taxes based on the income of the Trustee or such
Agent) and reasonable attorneys' fees and expenses incurred by each of them in
connection with the acceptance or performance of its duties under this Indenture
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder (including, without limitation, settlement costs).
The Trustee or Agent shall notify the Issuer and the Guarantors in writing
promptly of any claim asserted against the Trustee or Agent for which it may
seek indemnity. However, the failure by the Trustee or Agent to so notify the
Issuer and the Guarantors shall not relieve the Issuer and Guarantors of their
obligations hereunder except to the extent the Issuer and the Guarantors are
prejudiced thereby.
Notwithstanding the foregoing, the Issuer and the Guarantors
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Issuer and the Guarantors in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee except such money or property held in trust to
pay principal of and interest on particular Notes. The obligations of the Issuer
and the Guarantors under this Section 7.07 to compensate and indemnify the
Trustee, Agents and each predecessor Trustee and to pay or reimburse the
Trustee, Agents and each predecessor Trustee for expenses, disbursements and
advances shall be joint and several liabilities of the Issuer and each of the
Guarantors and shall survive the resignation or removal of the Trustee and the
satisfaction, discharge or other termination of this Indenture, including any
termination or rejection hereof under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 7.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Issuer and the
Guarantors in writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Issuer and the removed
Trustee in writing and may appoint a successor
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Trustee with the Issuer's written consent, which consent shall not be
unreasonably withheld. The Issuer may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an 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 or is removed or if a vacancy exists in
the office of Trustee for any reason, the Issuer shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuer or the Holders of a majority in principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, 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. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Issuer obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee; provided such entity shall be
otherwise qualified and eligible under this Article 7.
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SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $100,000,000 as set forth in the most recent applicable published
annual report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1).
SECTION 7.11. Preferential Collection of Claims Against Issuer.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA ss. 311 (b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
SECTION 7.12. Paying Agents.
The Issuer shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Issuer or by any obligor
on the Notes) in trust for the benefit of Holders of the Notes or the
Trustee;
(B) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
(C) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Issuer (or by any obligor on
the Notes) in the payment of any installment of the principal of,
premium, if any, or interest on, the Notes when the same shall be due
and payable.
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ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders.
The Issuer and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend, waive or supplement this
Indenture or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with any requirements of the Commission under
the TIA;
(4) to cure any ambiguity, defect or inconsistency;
(5) in reliance on an Opinion of Counsel, to make any other
change that does not adversely affect the rights of any Noteholders
hereunder;
(6) to add a Guarantor; or
(7) to provide for the issuance of the Exchange Notes or the
Private Exchange Notes in accordance with Section 2.01 in a manner that
does not adversely affect the rights of any Noteholder.
The Trustee is hereby authorized to join with the Issuer and
the Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
SECTION 8.02. With Consent of Holders.
The Issuer and the Guarantors (each when authorized by a Board
Resolution) may direct the Trustee to modify or supplement this Indenture or the
Notes with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Notes. The Holders of not less
than a majority in aggregate principal amount of the outstanding Notes may waive
compliance in a particular instance by the Issuer or Guarantors with any
provision of this Indenture or the Notes. Subject to Section 8.04, without the
consent of
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each Noteholder affected, however, an amendment, supplement or waiver, including
a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose holders must consent to an
amendment, supplement or waiver to this Indenture;
(2) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note or change the date on which any Notes may be
subject to redemption or repurchase or reduce the redemption or
repurchase price therefor;
(4) make any Note payable in money other than that stated in
the Note or change the place of payment from New York, New York;
(5) waive a default on the payment of the principal of,
interest on, or redemption payment with respect to any Note;
(6) make any change in provisions of this Indenture protecting
the right of each holder of Notes to receive payment of principal of
and interest on such Note on or after the due date thereof or to bring
suit to enforce such payment, or permitting holders of a majority in
principal amount of Notes to waive Defaults or Events of Default;
(7) amend, change or modify in any material respect the
obligation of the Issuer to make and consummate a Change of Control
Offer in the event of a Change of Control or make and consummate an
Asset Sale Offer with respect to any Asset Sale that has been
consummated or modify any of the provisions or definitions with respect
thereto;
(8) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Notes or any Guarantee
in a manner which adversely affects the holders of Notes; or
(9) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms
of this Indenture.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Issuer shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the written request of the Issuer, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the
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Trustee of evidence reasonably satisfactory to the Trustee of the consent of the
Noteholders as aforesaid and upon receipt by the Trustee of the documents
described in Section 8.06 hereof, the Trustee shall join with the Issuer and the
Guarantors in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, in which case the Trustee may, but shall not be obligated
to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
written notice of revocation before the date the amendment, supplement, waiver
or other action becomes effective.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (8) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
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SECTION 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee (in accordance with the specific written direction of the
Issuer) shall request the Holder of the Note (in accordance with the specific
written direction of the Issuer) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating, in addition to the matters required by Section 11.04, that such
amendment, supplement or waiver is authorized or permitted by this Indenture and
is a legal, valid and binding obligation of the Issuer and Guarantors,
enforceable against the Issuer and Guarantors in accordance with its terms
(subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture.
The Issuer and the Guarantors may terminate their obligations
under the Notes, the Guarantees and this Indenture, except the obligations
referred to in the last paragraph of this Section 9.01, if there shall have been
cancelled by the Trustee or delivered to the Trustee for cancellation all Notes
theretofore authenticated and delivered (other than any Notes that are asserted
to have been destroyed, lost or stolen and that shall have been replaced as
provided in Section 2.08 hereof) and the Issuer has paid all sums payable by
them hereunder or deposited all required sums with the Trustee.
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After such delivery, the Trustee upon Issuer Request shall
acknowledge in writing the discharge of the Issuer's and the Guarantors'
obligations under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer in Sections 7.07, 9.05 and 9.06 hereof
shall survive.
SECTION 9.02. Legal Defeasance.
The Issuer may at its option, by Resolution of the Board of
Directors of the Issuer, be discharged from its obligations with respect to the
Notes and the Guarantors discharged from their obligations under the Guarantees
on the date the conditions set forth in Section 9.04 below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Notes and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Issuer, shall, subject to
Section 9.06 hereof, execute instruments in form and substance reasonably
satisfactory to the Trustee and Issuer acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Notes to receive solely from
the trust funds described in Section 9.04 hereof and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (B) the Issuer's obligations
with respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.11, 4.16 and 4.19 hereof, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder (including claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9.
Subject to compliance with this Article 10, the Issuer may exercise its option
under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 below with respect to the Notes.
SECTION 9.03. Covenant Defeasance.
At the option of the Issuer, pursuant to a Resolution of the
Board of Directors of the Issuer, the Issuer and the Guarantors shall be
released from their respective obligations under Sections 4.02 (except for
obligations mandated by the TIA), 4.05 through 4.15, 4.17 and 4.20 through 4.21,
inclusive, and clause (a)(iii) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 9.04
hereof are satisfied (hereinafter, "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that the Issuer and the Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein to any such
specified Section or portion thereof or by reason of any reference in any such
specified
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Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
Section 9.02 or Section 9.03 hereof to the outstanding Notes:
(1) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 hereof who shall agree to comply with the
provisions of this Article 10 applicable to it) as funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Notes, (A) United States dollars and/or (B) non-callable U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the maturity date
of such principal, premium, if any, or interest, or on dates for
payment and redemption of such principal, premium, if any, and interest
selected in accordance with the terms of this Indenture and of the
Notes;
(2) no Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the incurrence
of Indebtedness all of a portion of the proceeds of which will be used
to defease the Notes pursuant to this Article 9 concurrently with such
incurrence), or shall have occurred and be continuing at any time
during the period ending on the 91st day after the date of such deposit
or, if longer, ending on the day following the expiration of the
longest preference period under any Bankruptcy Law applicable to the
Issuer in respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(3) such Legal Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest for purposes of the
TIA with respect to any securities of the Issuer;
(4) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any
other material agreement or
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instrument to which the Issuer or any of its Subsidiaries is a party or
by which the Issuer or any of its Subsidiaries is bound;
(5) the Issuer shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or
Covenant Defeasance, neither the trust nor the Trustee will be required
to register as an investment Issuer under the Investment Issuer Act of
1940, as amended;
(6) in the case of an election under Section 9.02 above, the
Issuer shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that
or (ii) there has been a change in any applicable Federal income tax
law with the effect that, and such opinion shall confirm that, the
Holders of the outstanding Notes or Persons in their positions will not
recognize income, gain or loss for United States Federal income tax
purposes solely as a result of such Legal Defeasance and will be
subject to United States Federal income tax on the same amounts, in the
same manner, including as a result of prepayment, and at the same times
as would have been the case if such deposit, Legal Defeasance and
discharge had not occurred;
(7) in the case of an election under Section 9.03 hereof, the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Notes will not recognize
income, gain or loss for United States Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to United States
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had
not occurred;
(8) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 10.02 above or the Covenant Defeasance under Section 10.03
hereof (as the case may be) have been complied with;
(9) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by
the Issuer with the intent of preferring the Holders of the Notes over
any other creditors of the Issuer or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Issuer or
others;
(10) the Issuer shall have delivered to the Trustee on Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
Bankruptcy Law; and
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(11) the Issuer shall have paid or duly provided for payment
under terms mutually satisfactory to the Issuer and the Trustee all
amounts then due to the Trustee pursuant to Section 7.07 hereof.
SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal,
premium, if any, and accrued interest, but such money need not be segregated
from other funds except to the extent required by law.
The Issuer and the Guarantors shall (on a joint and several
basis) pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.04 hereof or the principal, premium, if any, and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time upon a Issuer
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof
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, the Issuer's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided that if the Issuer
or the Guarantors have made any payment of principal of, premium, if any, or
accrued interest on any Notes because of the reinstatement of their obligations,
the Issuer or the Guarantors, as the case may be, shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
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SECTION 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon written demand of the Issuer, be paid to the Trustee, or
if sufficient moneys have been deposited pursuant to Section 9.04 hereof, to the
Issuer upon an Issuer Request (or, if such moneys had been deposited by the
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Issuer or the Guarantors in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note shall
have respectively become due and payable shall be repaid to the Issuer (or, if
appropriate, the Guarantors) upon a Issuer Request, or if such moneys are then
held by the Issuer or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Issuer and
the Guarantors for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
that the Trustee or any such Paying Agent, before being required to make any
such repayment, may, at the expense of the Issuer and the Guarantors, either
mail to each Noteholder affected, at the address shown in the register of the
Notes maintained by the Registrar pursuant to Section 2.03 hereof, or cause to
be published once a week for two successive weeks, in a newspaper published in
the English language, customarily published each Business Day and of general
circulation in the City of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed balance of
such moneys then remaining will be repaid to the Issuer. After payment to the
Issuer or the Guarantors or the release of any money held in trust by the Issuer
or any Guarantors, as the case may be, Noteholders entitled to the money must
look only to the Issuer and the Guarantors for payment as general creditors
unless applicable abandoned property law designates another Person.
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ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee.
Subject to the provisions of this Article 10 each Guarantor
hereby jointly and severally, fully and unconditionally guarantees, on a senior
unsecured basis, to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Issuer or
any other Guarantors to the Holders or the Trustee hereunder or thereunder,
that: (a) the principal of, interest and Additional Interest, if any, on the
Notes will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest or Additional Interest, if any, on the Notes
and all other obligations of the Issuer or the Guarantors to the Holders or the
Trustee hereunder or thereunder (including amounts due the Trustee under Section
7.7 hereof) and all other obligations of the Issuer Noteholders, the Trustee
hereunder or under the Notes (including fees, expenses or other) will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed, or failing performance of any other obligation
of the Issuer to the Holders, for whatever reason, each Guarantor will be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes or the Trustee to accelerate the obligations of the Guarantors
hereunder in the same manner and to the same extent as the obligations of the
Issuer.
Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Issuer, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each of the Guarantors hereby waives the benefit of
diligence, presentment, demand for payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest, notice and all demands whatsoever
and covenants that its Guarantee will not be discharged except by complete
performance of the obligations
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contained in the Notes, this Indenture and this Guarantee. This Guarantee is a
guarantee of payment and not of collection. If any Holder or the Trustee is
required by any court or otherwise to return to the Issuer or to any Guarantor,
or any custodian, trustee, liquidator or other similar official acting in
relation to the Issuer or such Guarantor, any amount paid by the Issuer or such
Guarantor to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between it, on the one hand, and the Holders
of Notes and the Trustee, on the other hand, (a) subject to this Article 10, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article 6 hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (b) in the event of any acceleration of such
obligations as provided in Article 6 hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantors for
the purpose of this Guarantee.
This Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuer
for liquidation or reorganization, should the Issuer become insolvent or make an
Assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employee or incorporator,
past, present or future, or any Guarantor, as such, shall have any personal
liability under this Guarantee by reason of his, her or its status as such
stockholder, officer, director, employee or incorporator.
The obligations of each Guarantor are 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 under this Indenture, result in the obligations of such
Guarantor under the Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the net assets of each
Guarantor, determined in accordance with GAAP.
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A Guarantor shall be released from all of its obligations
under its Guarantee if all of its assets or Capital Stock is sold, in each case
in a transaction in compliance with Section 4.11 above, or the Guarantor merges
with or into or consolidates with, or transfers all or substantially all of its
assets in compliance with Section 5.01 above, or the Guarantor is designated an
Unrestricted Subsidiary in compliance with the other terms of this Indenture,
and such Guarantor has delivered to the Trustee an Officers' Certificate and an
opinion of counsel, each stating that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 10.02. Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 10.01,
each Guarantor hereby agrees that a notation of such Guarantee, substantially in
the form included in Exhibit G hereto, shall be endorsed on each Note
authenticated and delivered by the Trustee and such Guarantee shall be executed
by either manual or facsimile signature of an Officer or an Officer of a general
partner, as the case may be, of each Guarantor. The validity and enforceability
of any Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an officer of a Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticate the Note on which such Guarantee is endorsed or at any time
thereafter, such Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 10.03. Limitation of Guarantee.
The obligations of each Guarantor are 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 under this Indenture, result in the obligations of such
Guarantor under the Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be
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entitled to a contribution from each other Guarantor in a pro rata amount based
on the net assets of each Guarantor, determined in accordance with GAAP.
SECTION 10.04. Additional Guarantors.
The Issuer covenants and agrees that it shall cause any Person
which becomes a Restricted Subsidiary (other than a Foreign Restricted
Subsidiary) to execute a supplemental indenture and any other documentation
requested by the Trustee satisfactory in form and substance to the Trustee
pursuant to which such Restricted Subsidiary shall guarantee the obligations of
the Issuer under the Notes and this Indenture in accordance with this Article 10
with the same effect and to the same extent as if such Person had been named
herein as a Guarantor.
SECTION 10.05. Release of Guarantor.
A Guarantor shall be released from all of its obligations
under its Guarantee if:
(i) the Guarantor has sold all of its assets or the Issuer and
its Restricted Subsidiaries have sold all of the Capital Stock of the
Guarantor owned by them, in each case in a transaction in compliance
with the terms of this Indenture (including Sections 4.11, 4.17 and
5.01); provided that the Asset Sale Proceeds of such sale are applied
in accordance with this Indenture;
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Issuer or
another Guarantor in a transaction in compliance with the terms of this
Indenture (including Section 5.01); or
(iii) the Guarantor is designated an Unrestricted Subsidiary in
compliance with the terms of this Indenture (including Section 4.07);
and in each such case, the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
The Trustee shall execute any documents reasonably requested
by the Issuer or a Guarantor in order to evidence the release of such Guarantor
from its obligations under its Guarantee endorsed on the Notes and under this
Article 10.
SECTION 10.06. Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Issuer that arise from
the existence, payment, performance
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or enforcement of such Guarantor's obligations under this Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Issuer, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Issuer, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or Note on account of such claim or other rights. If
any amount shall be paid to any Guarantor in violation of the preceding sentence
and the Notes shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders of the Notes, and shall forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 10.06 is knowingly made in contemplation of
such benefits.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. 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.
SECTION 11.02. Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
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If to the Issuer or any Guarantor:
PEN HOLDINGS, INC.
Center Court Building
0000 Xxxxxxxx Xxx
Post Office Box 2128
Brentwood, TN 37027
Attention: Chief Financial Officer
Fax Number: (000) 000-0000
with, in the case of any notice furnished pursuant to Article
6, a copy to:
XXXXXXXX XXXXXXXXX PROFESSIONAL CORPORATION
000 Xxxxx Xxxxxx
One Oxford Center
20th Floor
Pittsburgh, PA 15129
Attention: Xxxxxx Xxxxx, Esq.
Fax Number: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Trustee Administration
Fax Number: (000) 000-0000
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Issuer, the Guarantors or the Trustee by written notice to
the others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
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Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
SECTION 11.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Issuer, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any Guarantor
to the Trustee to take any action under this Indenture, the Issuer or such
Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 below) 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 (which shall include the statements
set forth in Section 11.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance by or
on behalf of the Issuer or any Guarantor with a condition or covenant provided
for in this Indenture shall include:
(1) a statement that the Person 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;
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(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it
or 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
Person, such covenant or condition has been complied with.
SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
meetings of Noteholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
SECTION 11.07. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a United States federally-recognized
holiday or a day on which banking institutions are not required to be open in
the State of New York. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.09. Submission to Jurisdiction; Waiver of Immunities.
By the execution and delivery of this Indenture, each of the
Issuer and each Guarantor acknowledges that it submits to the jurisdiction of
any Federal or State court in the State of New York, Borough of Manhattan.
To the extent that the Issuer or any Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, the Issuer and each Guarantor hereby irrevocably waives such
immunity in respect of its obligations under this Indenture and the Securities,
to the extent permitted by law.
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SECTION 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Issuer or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 11.11. No Recourse Against Others.
No recourse for the payment of the principal of or premium, if
any, or interest, including Additional Interest, on any of the Notes, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Issuer or any Guarantor in
this Indenture or in any supplemental indenture, or in any of the Notes, or
because of the creation of any Indebtedness represented thereby, shall be had
against any stockholder, officer, director or employee, as such, past, present
or future, of the Issuer or of any successor corporation or against the property
or assets of any such stockholder, officer, employee or director, either
directly or through the Issuer or any Guarantor, or any successor corporation
thereof, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the Notes are solely obligations of the
Issuer and the Guarantors, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, any stockholder, officer, employee or
director of the Issuer or any Guarantor, or any successor corporation thereof,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or the Notes or implied therefrom, and that any and all such personal liability
of, and any and all claims against every stockholder, officer, employee and
director, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Notes. It is understood that this limitation on recourse is made expressly for
the benefit of any such shareholder, employee, officer or director and may be
enforced by any of them.
SECTION 11.12. Successors.
All agreements of the Issuer and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
SECTION 11.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
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SECTION 11.14. Table of Contents, Headings, etc.
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 to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15. Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
PEN HOLDINGS, INC.
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE ELK HORN COAL CORPORATION
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
PEN COAL CORPORATION
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
MARINE TERMINALS INCORPORATED
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
RIVER MARINE TERMINALS, INC.
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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PEN HARDWOOD COMPANY
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
PEN COTTON COMPANY
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
PEN COTTON COMPANY
OF SOUTH CAROLINA
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ XXXXXX X. XXXXXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
