FIRST SUPPLEMENTAL INDENTURE
EXHIBIT
4.1
This
FIRST SUPPLEMENTAL INDENTURE, dated as of September 30, 2008 (this “Supplemental Indenture”), is
entered into by and among EVERGREEN ENERGY INC., a Delaware corporation (the
“Company”), each of the
Guarantors party hereto (the “Guarantors”), and U.S. BANK
NATIONAL ASSOCIATION, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
the Company, the Guarantors and the Trustee have heretofore executed and
delivered the Indenture, dated as of July 30, 2007 (the “Indenture”), pursuant to which
the Company issued an aggregate principal amount of $95,000,000 of 8.00%
Convertible Secured Notes due 2012 (the “Notes”).
WHEREAS,
Section 11.02 of the Indenture provides that the Company, the Guarantors and the
Trustee may, with the consent of the holders of at least a majority in aggregate
principal amount of the Notes then outstanding (the “Requisite Consents”), enter
into a supplemental indenture for the purpose of amending the Indenture (the
“Amendments”).
WHEREAS,
the Company and the Guarantors have been authorized by their respective Boards
of Directors and members to enter into this Supplemental Indenture.
NOW, THEREFORE, in consideration of the
promises, covenants and agreements contained herein, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and for the equal and proportionate benefit of the holders of the
Notes, the Company, the Guarantors and the Trustee hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section 1.01. Definitions. Unless
otherwise indicated, capitalized terms used herein and not defined shall have
the respective meanings given such terms in the Indenture.
ARTICLE
II
AMENDMENTS
TO INDENTURE
Section 2.01. Deleted
Definitions. All definitions in the Indenture that are used
exclusively in the sections and subsections deleted pursuant to this Article II
of this Supplemental Indenture are hereby deleted.
Section 2.02. Amendments to
Indenture.
(a) Section
4.02 of the Indenture shall be amended and restated, in its entirety, to read as
follows:
“Section
4.02. Conversion
upon Redemption Notice.
(a)
If the Company elects to redeem the Securities, in whole or in part, the Company
shall pay to any Holder that elects to convert its Securities (whether or not
such Securities are called for redemption) during the period from and including
the date the Company gives its Redemption Notice to and including the Business
Day immediately preceding the Redemption Date, in addition to the amount of
Common Stock and/or Cash specified pursuant to Section 4.14, the amount of any
accrued and unpaid interest on the Securities being converted, together with the
Coupon Make-Whole Payment for such Securities (such aggregate amount, the “Additional
Amount”).
(b)
The Company may elect to pay any Additional Amount in Cash or in shares of
Common Stock by notice given to Holders of Securities in the case of any
Additional Amounts payable in connection with a redemption of Securities, in the
Company’s Redemption Notice; provided that if the Company
does not make such election, the Company shall pay the Additional Amounts solely
in Cash.
(c)
If the Company elects to pay any Additional Amounts in shares of Common Stock,
the number of shares payable for each $1,000 principal amount of Securities
shall equal the Additional Amount per $1,000 principal amount of Securities
divided by 95% of the average of the Daily Volume-weighted Average Prices of the
Common Stock over the applicable measurement period, which shall be in the case
of any Additional Amounts payable in connection with a redemption of Securities,
the 10 Trading Days beginning on the 12th Scheduled Trading Day prior to the
Redemption Date.”
(b) Section
5.02(a) of the Indenture shall be amended and restated, in its entirety, to read
as follows:
“(a) The Company shall file with the
Trustee, within 15 calendar days after the Company files with the SEC, copies of
its annual report and the information, documents and other reports which the
Company files with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act; provided that any
such reports, information or documents filed with the SEC pursuant to its
Electronic Date Gathering, Analysis and Retrieval (or XXXXX) system shall be
deemed filed with the Trustee. The Company shall comply with the
provisions of TIA Section 314(a), whether or not the Company is required to
file reports with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. Notwithstanding anything to the contrary herein, the Trustee shall
have no duty to review such documents for purposes of determining compliance
with any provisions of this Indenture or any applicable law.”
(c) Sections
5.09, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, and 8.01(e) of the
Indenture shall be deleted and, in the case of each such section or subsection,
insert in lieu thereof the phrase “Intentionally Omitted”, and any and all
references thereto, any and all
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obligations
thereunder and any events of default related thereto are hereby deleted
throughout the Indenture, and such sections, subsections and references shall be
of no further force or effect.
(d) Section
6.01 of the Indenture shall be amended and restated, in its entirety, to read as
follows:
“Section 6.01. Collateral. Upon
execution of the Supplemental Indenture, the Securities shall become unsecured
Obligations of the Company and the Security Agreement shall be
terminated. In connection with the Supplemental Indenture, the Liens
granted pursuant to the Security Agreement shall be terminated and the Trustee
(acting as the Collateral Agent pursuant to the Security Agreement) shall take
the following actions: (a) return to the Company the Evergreen Operations, LLC
Unit Certificate number 1 relating to 100 Units issued to the Company, dated
July 30, 2007 (the “Pledged
Securities”); (b) return to the Company the Unit Power endorsed in blank
by the Company regarding the Pledged Securities; (c) transfer all funds in the
Cash Collateral Account (as defined in the Security Agreement) to any account
designated by the Company; (d) pursuant to that certain Securities Account
Control Agreement (the “Xxxxx
Fargo Control Agreement”), dated as of October 26, 2007, by and among the
Trustee, the Company and Xxxxx Fargo Brokerage Services, LLC (“Xxxxx Fargo”), send Xxxxx
Fargo written notice of the termination of the Security Agreement and to
terminate the Xxxxx Fargo Control Agreement; (e) pursuant to that certain
Securities Account Control Agreement (the “Credit Suisse Control
Agreement”), dated as of October 26, 2007, by and among Credit Suisse
Securities (USA) LLC (“Credit
Suisse”), Pershing LLC, the Company and the Trustee, send Credit Suisse a
notice of termination in substantially the form of Exhibit B to the Credit
Suisse Control Agreement; (f) pursuant to that certain Blocked Account Control
Agreement (“JPMorgan Control
Agreement”), dated as of October 26, 2007, by and among the Company, the
Trustee and JPMorgan Chase Bank, N.A. (“JPMorgan”), send JPMorgan
written notice to terminate the JPMorgan Control Agreement pursuant to Section 7
of the JPMorgan Control Agreement; and (g) pursuant to that certain Blocked
Account Control Agreement (“JPMorgan/Buckeye Control
Agreement”), dated as of October 26, 2007, by and among Buckeye
Industrial Mining Co., the Trustee and JPMorgan Chase Bank, N.A. (“JPMorgan”), send JPMorgan
written notice to terminate the JPMorgan/Buckeye Control Agreement pursuant to
Section 7 of the JPMorgan/Buckeye Control Agreement.”
(e) Section
13.03 of the Indenture shall be amended and restated, in its entirety, to read
as follows:
“Section
13.03. Discharge;
Reinstatement. Each Subsidiary Guarantor’s obligations hereunder
shall be automatically and unconditionally released upon the payment in full of
the principal of, premium, if any, and interest on the Securities and all other
amounts payable by the Company under this Indenture. If at any time any payment
of the principal of, premium, if any, or interest on any Security or any other
amount payable by the Company under this Indenture is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Company, each Subsidiary Guarantor’s obligations hereunder with respect
to such payment shall be reinstated as though such payment had been due but not
made at such time.”
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ARTICLE
III
MISCELLANEOUS
Section 3.01. Continuing Effect of
Indenture. Except as expressly provided herein, all of the
terms, provisions and conditions of the Indenture and the Securities outstanding
thereunder shall remain in full force and effect.
Section 3.02. Construction of Supplemental
Indenture. The Supplemental Indenture is executed as and shall
constitute an indenture supplemental to the Indenture and shall be construed in
connection with and as part of the Indenture.
Section 3.03. Entire
Agreement. This Supplemental Indenture, together with the
Indenture as amended hereby, contains the entire agreement of the parties, and
supersedes all other representations, warranties, agreements and understandings
between the parties, oral or otherwise, with respect to the matters contained
herein and therein.
Section 3.04. Governing
Law. This Supplemental Indenture shall be governed by,
construed, interpreted, and the rights of the parties determined in accordance
with the laws of the State of New York without regard to principles of conflicts
of laws.
Section 3.05. Trust Indenture Act
Controls. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with another provision of this Supplemental
Indenture or the Indenture that is required to be included by the Trust
Indenture Act of 1939, as amended (“TIA”), as in force at the date
as of which this Supplemental Indenture is executed, the provision required by
the TIA shall control.
Section 3.06. Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 3.07. Effectiveness. This
Supplemental Indenture shall become effective and binding upon the Company, the
Guarantors, the Trustee and the holders of Notes immediately upon its execution
and delivery by the parties hereto.
Section 3.08. Trustee. The
Trustee makes no representations as to the validity or sufficiency of this
Supplemental Indenture. The recitals and statements herein are deemed to be
those of the Company and not of the Trustee.
[Signatures on following
page]
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be executed as of the day and year first above written.
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Company:
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By: /s/ XXXXX X.
XXXXXXX
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Name: Xxxxx
X. Xxxxxxx
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Title: Chief
Executive Officer and President
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Guarantors:
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EVERGREEN
OPERATIONS, LLC
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KFX
PLANT, LLC
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KFX
OPERATIONS, LLC
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LANDRICA
DEVELOPMENT COMPANY
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By: /s/ XXXXX X.
XXXXXXX
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Name: Xxxxx
X. Xxxxxxx
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Title: Chief
Executive Officer and President of each of
the
above Guarantors
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BUCKEYE
INDUSTRIAL MINING CO.
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By: /s/ XXXXX X.
XXXXX
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Name: Xxxxx
X. Xxxxx
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Title: Vice
President and Chief Financial Officer
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Trustee:
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U.S.
BANK NATIONAL ASSOCIATION
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By: /s/ XXXX
XXXXXXXX
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Name: Xxxx
Xxxxxxxx
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Title: Vice
President
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