===============================================================================
THE PITTSTON COMPANY
7.17% Senior Notes due 2008
NOTE PURCHASE AGREEMENT
Dated as of April 11, 2002
===============================================================================
[Exhibits 4.4(a)(i), 4.4(a)(ii) and 4.4(b) to the Note Purchase Agreement are
photocopies of the legal opinions as delivered at the Closing.]
Table of Contents
Page
1. AUTHORIZATION OF NOTES...............................................1
1.1. The Notes...................................................1
1.2. The Subsidiary Guarantees...................................1
2. SALE AND PURCHASE OF NOTES...........................................2
3. CLOSING..............................................................2
4. CONDITIONS TO CLOSING................................................2
4.1. Representations and Warranties..............................2
4.2. Performance; No Default.....................................3
4.3. Compliance Certificates.....................................3
4.4. Opinions of Counsel.........................................3
4.5. Subsidiary Guarantees.......................................3
4.6. Purchase Permitted by Applicable Law, etc...................3
4.7. Payment of Special Counsel Fees.............................4
4.8. Private Placement Numbers...................................4
4.9. Changes in Corporate Structure..............................4
4.10. Proceedings and Documents...................................4
4.11. Sale of Notes to Other Purchasers...........................4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................4
5.1. Organization; Power and Authority...........................5
5.2. Authorization, etc..........................................5
5.3. Disclosure..................................................5
5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates..................................................5
5.5. Financial Statements........................................6
5.6. Compliance with Laws, Other Instruments, etc................6
5.7. Governmental Authorizations, etc............................7
5.8. Litigation; Observance of Agreements, Statutes and Orders...7
5.9. Taxes.......................................................7
5.10. Title to Property; Leases...................................7
5.11. Licenses, Permits, etc......................................8
5.12. Compliance with ERISA.......................................8
5.13. Private Offering by the Company.............................9
5.14. Use of Proceeds; Margin Regulations.........................9
5.15. Existing Indebtedness.......................................10
5.16. Foreign Assets Control Regulations, etc.....................10
5.17. Status Under Certain Statutes...............................10
5.18. Environmental Matters.......................................11
6. REPRESENTATIONS OF THE PURCHASER.....................................11
6.1. Purchase of Notes...........................................11
6.2. Source of Funds.............................................11
7. INFORMATION AS TO COMPANY............................................13
7.1. Financial and Business Information..........................13
7.2. Officer's Certificate.......................................16
7.3. Inspection..................................................16
8. PREPAYMENT OF THE NOTES..............................................17
8.1. Required Prepayments of Notes...............................17
8.2. Optional Prepayments with Make-Whole Amount.................17
8.3. Notice of Prepayment........................................18
8.4. Allocation of Partial Prepayments...........................18
8.5. Maturity; Surrender, etc....................................18
8.6. Purchase of Notes...........................................18
8.7. Make-Whole Amount...........................................19
9. AFFIRMATIVE COVENANTS................................................20
9.1. Compliance with Law.........................................20
9.2. Insurance...................................................20
9.3. Maintenance of Properties...................................21
9.4. Payment of Taxes and Claims.................................21
9.5. Corporate Existence, etc....................................21
9.6. Additional Subsidiary Guarantees; Release of Subsidiary
Guarantees..................................................21
10. NEGATIVE COVENANTS...................................................22
10.1. Liens.......................................................22
10.2. Restricted Subsidiary Indebtedness..........................24
10.3. Limitation on Sale and Leaseback Transactions...............25
10.4. Limitation on Asset Sales...................................25
10.5. Financial Conditions........................................26
10.6. Merger, Consolidation, etc..................................27
10.7. Lines of Business...........................................28
10.8. Transactions with Affiliates................................28
10.9. Designation of Restricted and Unrestricted Subsidiaries.....28
11. EVENTS OF DEFAULT....................................................29
12. REMEDIES ON DEFAULT, ETC.............................................31
12.1. Acceleration................................................31
12.2. Other Remedies..............................................32
12.3. Rescission..................................................32
12.4. No Waivers or Election of Remedies, Expenses, etc...........32
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES........................32
13.1. Registration of Notes.......................................32
13.2. Transfer and Exchange of Notes..............................33
(ii)
13.3. Replacement of Notes........................................33
14. PAYMENTS ON NOTES....................................................34
14.1. Place of Payment............................................34
14.2. Home Office Payment.........................................34
15. EXPENSES, ETC........................................................34
15.1. Transaction Expenses........................................34
15.2. Survival....................................................35
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.........35
17. AMENDMENT AND WAIVER.................................................35
17.1. Requirements................................................35
17.2. Solicitation of Holders of Notes............................36
17.3. Binding Effect, etc.........................................36
17.4. Notes held by Company, etc..................................36
18. NOTICES..............................................................37
19. REPRODUCTION OF DOCUMENTS............................................37
20. CONFIDENTIAL INFORMATION.............................................37
21. SUBSTITUTION OF PURCHASER............................................38
22. MISCELLANEOUS........................................................39
22.1. Successors and Assigns......................................39
22.2. Construction................................................39
22.3. Consent to Jurisdiction; Service of Process; Waiver of
Jury Trial..................................................39
22.4. Payments Due on Non-Business Days...........................40
22.5. Severability................................................40
22.6. Accounting Terms; Changes in GAAP...........................40
22.7. Counterparts................................................41
22.8. Governing Law...............................................41
Exhibit 1.1 -- Form of 7.17% Senior Note due 2008
Exhibit 1.2 -- Form of Subsidiary Guarantee
Exhibit 4.4(a)(i) -- Form of Opinion of Special Counsel for the Company
Exhibit 4.4(a)(ii) -- Form of Opinion of Counsel for the Company
Exhibit 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
Schedule A -- Names and Addresses of Purchasers
(iii)
Schedule B -- Defined Terms
Schedule 5.3 -- Disclosure Documents
Schedule 5.4 -- Subsidiaries
Schedule 5.8 -- Litigation
Schedule 5.11 -- Licenses, etc.
Schedule 5.15 -- Existing Indebtedness
(iv)
THE PITTSTON COMPANY
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
7.17% Senior Notes due 2008
As of April 11, 2002
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
THE PITTSTON COMPANY, a Virginia corporation (the "Company"), agrees
with you as follows:
1. AUTHORIZATION OF NOTES.
1.1. The Notes.
The Company has duly authorized the issue and sale of $20,000,000
aggregate principal amount of its 7.17% Senior Notes due 2008 (the "Notes"),
each such note to be substantially in the form set out in Exhibit 1.1. As used
herein, the term "Notes" shall mean all notes originally delivered pursuant to
this Agreement and the Other Agreements referred to below and all notes
delivered in substitution or exchange for any such note and, where applicable,
shall include the singular number as well as the plural. The term "Note" means
one of the Notes. Certain capitalized and other terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
1.2. The Subsidiary Guarantees.
The Notes will be unconditionally guaranteed by certain of the
Company's existing Restricted Subsidiaries, pursuant to subsidiary guarantees
substantially in the form of Exhibit 1.2 (individually a "Subsidiary Guarantee"
and collectively the "Subsidiary Guarantees", which terms shall include after
the date of the Closing all additional Subsidiary Guarantees from time to time
executed and delivered pursuant to Section 9.6).
2
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company
will issue and sell to you and you will purchase from the Company, at the
Closing provided for in Section 3, Notes in the principal amount specified
opposite your name in Schedule A at the purchase price of 100% of the principal
amount thereof. Contemporaneously with entering into this Agreement, the Company
is entering into a separate Note Purchase Agreement (the "Other Agreements")
identical with this Agreement with the other purchasers named in Schedule A (the
"Other Purchasers"), providing for the sale at such Closing to the Other
Purchasers of Notes in the principal amount specified opposite its name in
Schedule A. Your obligation hereunder and the obligation of the Other Purchasers
under the Other Agreements are several and not joint obligations and you shall
have no obligation under the Other Agreements and no liability to any Person for
the performance or non-performance by the Other Purchasers thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the
Other Purchasers shall occur at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 a.m., New York time, at a closing
(the "Closing") on April 11, 2002 or on such other Business Day thereafter on or
prior to April 19, 2002 as may be agreed upon by the Company and you and the
Other Purchasers. At the Closing the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater number of Notes
in denominations of at least $100,000 as you may request prior to the Closing)
dated the date of the Closing and registered in your name (or in the name of
your nominee), against delivery by you to the Company or its order of
immediately available funds in the amount of the purchase price therefor by wire
transfer of immediately available funds to the Company's account (account number
9104010609) at The Chase Manhattan Bank, ABA number 000000000.
If at the Closing the Company shall fail to tender such Notes to you
as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you
at the Closing is subject to the fulfillment to your satisfaction, prior to or
at the Closing, of the following conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company in this Agreement
shall be correct when made and at the time of the Closing.
3
4.2. Performance; No Default.
The Company shall have performed and complied with all agreements
and conditions contained in this Agreement required to be performed or complied
with by it prior to or at the Closing and after giving effect to the issue and
sale of the Notes (and the application of the proceeds thereof as contemplated
by Section 5.14) no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Subsidiary shall have entered into any
transaction since December 31, 2001 that would have been prohibited by Section
10.1 or 10.2 had such Sections applied since such date.
4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you
an Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered to
you a certificate of the Secretary or an Assistant Secretary of the Company
certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the Notes
and this Agreement and the Other Agreements.
4.4. Opinions of Counsel.
You shall have received opinions in form and substance satisfactory
to you, dated the date of the Closing (a) from Cravath, Swaine & Xxxxx, special
counsel for the Company, substantially in the form set forth in Exhibit
4.4(a)(i) and from Xxxxxx X. Xxxx, Vice President, General Counsel and Secretary
of the Company substantially in the form set forth in Exhibit 4.4(a)(ii) (and
the Company hereby instructs its counsel to deliver such opinions to you) and
(b) from Xxxxxxx Xxxx & Xxxxxxxxx, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b) and covering
such other matters incident to such transactions as you may reasonably request.
4.5. Subsidiary Guarantees.
A Subsidiary Guarantee, dated as of a date on or before the date of
the Closing and in the form hereinabove recited, shall have been executed and
delivered by Brink's, Incorporated, Brink's Home Security, Inc., Pittston
Services Group, Inc., Brink's Holding Company, BAX Holding Company, Pittston
Coal Company, BAX Global Inc. and Pittston Minerals Group Inc. (in such capacity
sometimes individually called a "Subsidiary Guarantor" and collectively the
"Subsidiary Guarantors", which term shall include after the date of the Closing
all additional Restricted Subsidiaries that from time to time execute and
deliver Subsidiary Guarantees pursuant to Section 9.6) and each such Subsidiary
Guarantee shall be in full force and effect.
4.6. Purchase Permitted by Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions
4
(such as Section 1405(a)(8) of the New York Insurance Law) permitting limited
investments by insurance companies without restriction as to the character of
the particular investment, (b) not violate any applicable law or regulation
(including without limitation Regulation T, U or X of the Board of Governors of
the Federal Reserve System) and (c) not subject you to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law or
regulation was not in effect on the date hereof. If requested by you, you shall
have received an Officer's Certificate certifying as to such matters of fact as
you may reasonably specify to enable you to determine whether such purchase is
so permitted.
4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall
have paid on or before the Closing the fees, charges and disbursements of your
special counsel referred to in Section 4.4 to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the Closing.
4.8. Private Placement Numbers.
A Private Placement Number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Notes.
4.9. Changes in Corporate Structure.
The Company shall not have changed its jurisdiction of incorporation
or been a party to any merger or consolidation or succeeded to all or any
substantial part of the liabilities of any other entity at any time following
the date of the most recent financial statements referred to in Section 5.5.
4.10. Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
4.11. Sale of Notes to Other Purchasers.
The Company shall sell to the Other Purchasers and the Other
Purchasers shall purchase the Notes to be purchased by it at the Closing as
specified in Schedule A.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5
5.1. Organization; Power and Authority.
The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation, and is
duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company has the corporate power and authority to
own or hold under lease the properties it purports to own or hold under lease,
to transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and the Other Agreements and the Notes and to perform the
provisions hereof and thereof.
5.2. Authorization, etc.
This Agreement and the Other Agreements and the Notes have been duly
authorized by all necessary corporate action on the part of the Company, and
this Agreement constitutes, and upon execution and delivery thereof each Note
will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.3. Disclosure.
The Company has delivered to you a copy of the Form 10-K. The Form
10-K fairly describes, in all material respects, the general nature of the
business and principal properties of the Company and its Subsidiaries. This
Agreement, the Form 10-K, the documents, certificates or other writings
delivered to you by or on behalf of the Company in connection with the
transactions contemplated hereby and described in Schedule 5.3 (together with
the Form 10-K, the "Disclosure Documents"), taken as a whole, do not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in light of the circumstances
under which they were made. Since December 31, 2001, there has been no change in
the financial condition, operations, business, properties or prospects of the
Company or any Subsidiary except as disclosed in the Disclosure Documents and
other changes that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect. There is no fact known to the
Company that could reasonably be expected to have a Material Adverse Effect that
has not been set forth herein or in the Form 10-K or in the other Disclosure
Documents.
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary and (ii)
of the Company's directors and senior officers. Schedule 5.4 also identifies
each Restricted
6
Subsidiary and each Unrestricted Subsidiary as of the date of this Agreement.
No Subsidiary listed in Schedule 5.4 is a guarantor under the Bank Credit
Agreement other than the Subsidiary Guarantors listed in Section 4.5.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and clear
of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation
or other legal entity duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified as a
foreign corporation or other legal entity and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the corporate or other power
and authority to own or hold under lease the properties it purports to own or
hold under lease and to transact the business it transacts and proposes to
transact and, in the case of Subsidiary Guarantors, to execute and deliver and
perform its obligations under their respective Subsidiary Guarantees.
(d) No Restricted Subsidiary is a party to, or otherwise subject
to any legal restriction or any agreement (other than this Agreement, the
agreements listed on Schedule 5.4 and customary limitations imposed by corporate
law statutes) restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to the Company or any
of its Subsidiaries that owns outstanding shares of capital stock or similar
equity interests of such Subsidiary.
5.5. Financial Statements.
The Company's financial statements included in the Form 10-K
(including the related schedules and notes) fairly present in all material
respects the consolidated financial position of the Company and its Subsidiaries
as of the respective dates specified therein and the consolidated results of
their operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of this
Agreement and the Notes and by the Subsidiary Guarantors of their respective
Subsidiary Guarantees will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of the Company or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict with or result in
a breach of any of the terms, conditions or provisions of
7
any order, judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to the Company or any Subsidiary or (iii) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Company or any Subsidiary.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required for the validity of the
execution, delivery or performance by the Company of this Agreement or the Notes
or by the Subsidiary Guarantors of their respective Subsidiary Guarantees.
5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions,
suits or proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Subsidiary or any property of the
Company or any Subsidiary in any court or before any arbitrator of any kind or
before or by any Governmental Authority that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any term of any agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance, rule
or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.9. Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of Federal, state or
other taxes for all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the
fiscal year ended December 31, 1993.
5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to
their respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or
8
purported to have been acquired by the Company or any Subsidiary after said
date (except as sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens prohibited by this Agreement.
All leases that individually or in the aggregate are Material are valid and
subsisting and are in full force and effect in all material respects.
5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, proprietary
software, service marks, trademarks and trade names, or rights thereto,
that individually or in the aggregate are Material, without known conflict
with the rights of others;
(b) to the knowledge of the Company, no product of the Company
infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, proprietary software, service xxxx,
trademark, trade name or other right owned by any other Person; and
(c) to the knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, proprietary software,
service xxxx, trademark, trade name or other right owned or used by the
Company or any of its Subsidiaries.
5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and could not reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any
ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that could reasonably be expected to result in the
incurrence of any such liability by the Company or any ERISA Affiliate, or in
the imposition of any Lien on any of the rights, properties or assets of the
Company or any ERISA Affiliate, in either case pursuant to Title I or IV of
ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or
412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under
each of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the assets of
such Plan allocable to such benefit liabilities. The term "benefit liabilities"
has the meaning specified in section 4001 of ERISA and the terms "current value"
and "present value" have the meaning specified in section 3 of ERISA.
9
(c) The Company and its ERISA Affiliates have not incurred
withdrawal liabilities that have not been discharged (and are not currently
subject to contingent withdrawal liabilities) under section 4201 or 4204 of
ERISA in respect of Multiemployer Plans that individually or in the aggregate
are Material.
(d) Except as disclosed in the Disclosure Documents, the expected
post retirement benefit obligation (determined as of the last day of the
Company's most recently ended fiscal year in accordance with Financial
Accounting Standards Board Statement No. 106, without regard to liabilities
attributable to continuation coverage mandated by section 4980B of the Code) of
the Company and its Subsidiaries is not Material.
(e) With respect to each employee benefit plan, if any, disclosed
by you in writing to the Company in accordance with Section 6.2(c), neither the
Company nor any "affiliate" of the Company (as defined in Section V(c) of the
QPAM Exemption) has at this time, nor has exercised at any time during the
immediately preceding year, the authority to appoint or terminate the "QPAM" (as
defined in Part V of the QPAM Exemption) disclosed by you to the Company
pursuant to Section 6.2(c) as manager of any of the assets of any such plan or
to negotiate the terms of any management agreement with such QPAM on behalf of
any such plan, and the Company is not an "affiliate" (as so defined) of such
QPAM. The Company has advised you if it is a party in interest with respect to
any employee benefit plan originally disclosed by you in accordance with Section
6.2(b) or 6.2(e). The execution and delivery of this Agreement and the issuance
and sale of the Notes at the Closing hereunder will not involve any prohibited
transaction (as such term is defined in section 406(a) of ERISA and section
4975(c)(1)(A)-(D) of the Code), that could subject the Company or any holder of
a Note to any tax or penalty on prohibited transactions imposed under said
section 4975 of the Code or by section 502(i) of ERISA. The representation by
the Company in the preceding sentence of this Section 5.12(e) is made in
reliance upon and subject to the accuracy of your representation in Section 6.2
as to the source of the funds used to pay the purchase price of the Notes to be
purchased by you (including without limitation after giving effect to your
necessary change in the source in respect of a party in interest identified by
the Company as aforesaid).
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the
Notes, the Subsidiary Guarantees or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise approached or
negotiated in respect thereof with, any person other than you, the Other
Purchasers and not more than 35 other Institutional Investors, each of which has
been offered the Notes at a private sale for investment. Neither the Company nor
anyone acting on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Notes or the issuance of the Subsidiary
Guarantees to the registration requirements of Section 5 of the Securities Act.
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the net proceeds of the sale of the Notes to
repay Indebtedness and for general corporate purposes. No part of the proceeds
from the sale of the Notes hereunder will be used, and no part of the proceeds
of such Indebtedness being repaid was
10
used, directly or indirectly, for the purpose of buying or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying
or trading in any securities under such circumstances as to involve the Company
in a violation of Regulation X of said Board (12 CFR 224) or to involve any
broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 5% of the value of the consolidated
assets of the Company and its Subsidiaries and the Company does not have any
present intention that margin stock will constitute more than 25% of the value
of such assets. As used in this Section, the terms "margin stock" and "purpose
of buying or carrying" shall have the meanings assigned to them in said
Regulation U.
5.15. Existing Indebtedness.
Schedule 5.15 sets forth a complete and correct list of all
outstanding Indebtedness of the Company and its Restricted Subsidiaries in an
unpaid principal amount exceeding $25,000,000 as of December 31, 2001, since
which date there has been no Material change in the amounts, interest rates,
sinking funds, instalment payments or maturities of the Indebtedness of the
Company or its Restricted Subsidiaries. Neither the Company nor any Restricted
Subsidiary is in default, and no waiver of default is currently in effect, in
the payment of any principal or interest on any Indebtedness of the Company or
such Restricted Subsidiary, and no event or condition exists with respect to any
Indebtedness of the Company or any Restricted Subsidiary that would permit (or
that with the giving of notice or the lapse of time, or both, would permit) one
or more Persons to cause such Indebtedness to become due and payable before its
stated maturity or before its regularly scheduled dates of payment.
Except as disclosed in Schedule 5.15, neither the Company nor any
Restricted Subsidiary has agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its property, whether
now owned or hereafter acquired, to be subject to a Lien that would not be
permitted by Section 10.1 without equally and ratably securing the Notes.
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor its use
of the proceeds thereof will violate the Trading with the Enemy Act, as amended,
or any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17. Status Under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation
under the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Interstate Commerce Act, as amended, or the
Federal Power Act, as amended.
11
5.18. Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or
has received any written notice of any claim against the Company or any of its
Subsidiaries that is outstanding or unresolved, and no proceeding has been
instituted and is pending raising any claim against the Company or any of its
Subsidiaries or any of their respective real properties now owned, leased or
operated by any of them or other assets, alleging any damage to the environment
or violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect. Except as
otherwise disclosed to you in writing,
(a) neither the Company nor any Subsidiary has knowledge of any
facts which would be reasonably likely to result in any claim, public or
private, against the Company or any Subsidiary under any Environmental
Laws, except, in each case, for such claims that could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them or disposed of any Hazardous Materials, in any
case in a manner contrary to any Environmental Laws that could reasonably
be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in compliance with
applicable Environmental Laws, except where failure to comply could not
reasonably be expected to result in a Material Adverse Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. Purchase of Notes.
You represent that you are purchasing the Notes for your own account
or for one or more separate accounts maintained by you or for the account of one
or more pension or trust funds for which you are the financial advisor or
investment manager and not with a view to the distribution thereof, provided
that the disposition of your or their property shall at all times be within your
or their control. You understand that the Notes have not been registered under
the Securities Act and may be resold only if registered pursuant to the
provisions of the Securities Act or if an exemption from registration is
available, except under circumstances where neither such registration nor such
an exemption is required by law, and that the Company is not required to
register the Notes.
6.2. Source of Funds.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "Source") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
12
(a) the Source is an "insurance company general account", as such
term is defined in Prohibited Transaction Exemption ("PTE") 95-60 (issued
July 12, 1995), and there is no plan with respect to which the aggregate
amount of such general account's reserves and liabilities for the
contracts held by or on behalf of such plan and all other plans maintained
by the same employer (and affiliates thereof as defined in section V(a)(1)
of PTE 95-60) or by the same employee organization (in each case
determined in accordance with PTE 95-60) exceeds or will exceed 10% of the
total of all reserves and liabilities of such general account (determined
in accordance with PTE 95-60, exclusive of separate account liabilities,
plus any applicable surplus) as of the date of the Closing; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii)
a bank collective investment fund, within the meaning of the PTE 91-38
(issued July 12, 1991) and, except for any employee benefit plan or a
group of plans disclosed to the Company in writing pursuant to this
paragraph (b) (in response to which the Company has not advised you that
it is a party in interest with respect to any such plan or group of
plans), no employee benefit plan or group of plans maintained by the same
employer or employee organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund" (within
the meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of the
QPAM Exemption), no employee benefit plan's assets that are included in
such investment fund, when combined with the assets of all other employee
benefit plans established or maintained by the same employer or by an
affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by such
QPAM, exceed 20% of the total client assets managed by such QPAM, the
conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a person controlling or controlled by the QPAM
(applying the definition of "control" in section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity
of such QPAM and (ii) the names of all employee benefit plans whose assets
are included in such investment fund have been disclosed to the Company in
writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee benefit
plans, each of which has been identified to the Company in writing
pursuant to this paragraph (e) and the Company has not advised you that it
is a party in interest with respect to any such plan; or
(f) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
13
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate copies
of
(i) a consolidated balance sheet of the Company and its
Subsidiaries or its Restricted Subsidiaries as at the end of such
quarter, and
(ii) consolidated statements of income and cash flows of the
Company and its Subsidiaries or its Restricted Subsidiaries, for
such quarter and (in the case of the second and third quarters) for
the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior Financial Officer as
fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash
flows, subject to changes resulting from year-end adjustments, provided
that delivery within the time period specified above of copies of the
Company's Quarterly Report on Form 10-Q prepared in compliance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(a);
(b) Annual Statements -- within 120 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries or its Restricted Subsidiaries as at the end of such
year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries or its Restricted Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
(A) an opinion thereon of independent public accountants of
recognized national standing, which opinion shall state that such
financial
14
statements present fairly, in all material respects, the financial
position of the companies being reported upon and their results of
operations and cash flows and have been prepared in conformity with
GAAP, and that the examination of such accountants in connection
with such financial statements has been made in accordance with
generally accepted auditing standards, and that such audit provides
a reasonable basis for such opinion in the circumstances,
(B) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making their
audit, they have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if they are
aware that any such condition or event then exists, specifying the
nature and period of the existence thereof (it being understood
that such accountants shall not be liable, directly or indirectly,
for any failure to obtain knowledge of any Default or Event of
Default unless such accountants should have obtained knowledge
thereof in making an audit in accordance with generally accepted
auditing standards or did not make such an audit), and
(C) in case such audited financial statements include the
accounts of Unrestricted Subsidiaries and all Unrestricted
Subsidiaries, if taken as a single Subsidiary, produced more than
10% of Consolidated Net Income for such fiscal year or the assets of
all Unrestricted Subsidiaries exceeded 10% of the consolidated
assets of the Company and its Subsidiaries as of the last day of
such fiscal year, a certificate of a Senior Financial Officer
containing calculations in reasonable detail deleting the accounts
of all Unrestricted Subsidiaries from such financial statements,
provided that the delivery within the time period specified above of the
Company's Annual Report on Form 10-K for such fiscal year (together with
the Company's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission, together with the accountants' certificate described in clause
(B) above and (if required) the certificate of a Senior Financial Officer
described in clause (C) above, shall be deemed to satisfy the requirements
of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, written report,
material notice or proxy statement sent by the Company or any Restricted
Subsidiary generally to its public securities holders or its lending
banks, (ii) each regular or periodic report, each registration statement
(without exhibits except as expressly requested by such holder), and each
prospectus and all amendments thereto filed by the Company or any
Restricted Subsidiary with the Securities and Exchange Commission and
(iii) all press releases and other statements made available generally by
the Company to the public concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly, and in any
event within five days after a Responsible Officer becoming aware of the
existence of any Default or
15
Event of Default or that any Person has given any notice or taken any
action with respect to a claimed default hereunder or that any Person has
given any notice or taken any action with respect to a claimed default of
the type referred to in Section 11(f), a written notice specifying the
nature and period of existence thereof and what action the Company is
taking or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days
after a Responsible Officer becoming aware of any of the following, a
written notice setting forth the nature thereof and the action, if any,
that the Company or an ERISA Affiliate proposes to take with respect
thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the regulations thereunder,
for which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof;
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan, or the receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit
plans, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate pursuant
to Title I or IV of ERISA or such penalty or excise tax provisions,
if such liability or Lien, taken together with any other such
liabilities or Liens then existing, would have a Material Adverse
Effect;
(f) Notices from Governmental Authority -- promptly, and in any
event within 30 days of receipt thereof, copies of any notice to the
Company or any Subsidiary from any United States Federal or state
Governmental Authority relating to any order, ruling, statute or other law
or regulation that could reasonably be expected to have a Material Adverse
Effect; and
(g) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Company to perform its
obligations hereunder and under the Notes or relating to the ability of a
Subsidiary Guarantor to perform its obligations under its respective
Subsidiary Guarantee, in each case as from time to time may be reasonably
requested in writing by any such holder of Notes (subject to the
limitations of the final paragraph of Section 7.3).
16
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Sections 10.1 through 10.8 inclusive,
during the quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage,
as the case may be, permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in existence); and
(b) Default -- a statement that such Senior Financial Officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and conditions
of the Company and its Subsidiaries from the beginning of the quarterly or
annual period covered by the statements then being furnished to the date
of the certificate and that such review shall not have disclosed the
existence during such period of any condition or event that constitutes a
Default or an Event of Default or, if any such condition or event existed
or exists (including without limitation any such event or condition
resulting from the failure of the Company or any Subsidiary to comply
with any Environmental Law), specifying the nature and period of existence
thereof and what action the Company shall have taken or proposes to take
with respect thereto.
In case any of the calculations provided pursuant to clause (a) above are made
without giving effect to a change in GAAP, by reason of an objection by the
Company or the Required Holders pursuant to Section 22.6 to calculations taking
into account such change in GAAP, such certificate of a Senior Financial Officer
shall be accompanied by a certificate or letter from the Company's independent
public accountants to the effect that they have reviewed and verified such
calculations.
7.3. Inspection.
The Company shall permit the representatives of each holder of Notes
that is an Institutional Investor (subject to compliance with Section 20):
(a) No Default -- if no Default or Event of Default then exists,
at the expense of such holder and upon reasonable prior notice to the
Company, to visit the principal executive office of the Company, to
discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its independent
public accountants, and (with the consent of the Company, which consent
will not be unreasonably withheld) to visit the other offices and
properties of the Company and each Subsidiary, all at such reasonable
times and as often as may be reasonably requested in writing; and
17
(b) Default -- if a Default or Event of Default then exists, at
the expense of the Company, to visit and inspect any of the offices or
properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and accounts
of the Company and its Subsidiaries), all at such times and as often as
may be requested.
Notwithstanding the foregoing, the Company shall not be required to
disclose to any holder of Notes any information (other than financial
information and other data related to the financial performance of the Company
and its Subsidiaries, including without limitation copies of written reports
that the Company provides to its lending banks) to the extent that the Company
is advised in writing by internal or external legal counsel that the Company is
prohibited from disclosing such information at such time to its creditors
generally under any applicable law, rule, regulation or order (or other binding
restriction imposed by any Governmental Authority) or as a result of any
agreement entered into in good faith with third parties that are not lenders to
the Company or a Subsidiary.
8. PREPAYMENT OF THE NOTES.
In addition to the payment of the entire unpaid principal amount of
the Notes at the final maturity thereof, the Company will make required
prepayments on account of the Notes and may make optional prepayments in respect
of the Notes as hereinafter provided.
8.1. Required Prepayments of Notes.
On April 11, 2006 and April 11, 2007 the Company will prepay
$6,666,666 aggregate principal amount (or such lesser principal amount as shall
then be outstanding) of the Notes, such prepayment to be made at the principal
amount to be prepaid, together with accrued interest thereon to the date of such
prepayment, without payment of any Make-Whole Amount or other premium, allocated
as provided in Section 8.4.
No partial prepayment of the Notes pursuant to Section 8.2 shall
relieve the Company of its obligation to make prepayments of the Notes required
by this Section 8.1 (with the effect that such optional prepayments shall be
applied to such required prepayments and to the payment at the final maturity of
the Notes in inverse order), provided that upon any purchase of less than all of
the outstanding Notes pursuant to Section 8.6 the principal amount of each
required prepayment of the Notes becoming due under this Section 8.1 on and
after the date of such purchase shall be reduced in the same proportion as the
aggregate unpaid principal amount of the Notes is reduced as a result of such
purchase.
8.2. Optional Prepayments with Make-Whole Amount.
The Company may, at its option and upon notice as provided in
Section 8.3, prepay at any time all, or from time to time any part of, the Notes
(in a minimum amount of $5,000,000 and otherwise in multiples of $100,000) at
the principal amount so prepaid, together
18
with interest accrued thereon to the date of such prepayment, plus the
Make-Whole Amount determined for the prepayment date with respect to such
principal amount.
8.3. Notice of Prepayment.
The Company will give each holder of Notes written notice of each
optional prepayment under Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
the date fixed for such prepayment (which shall be a Business Day), the
aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of Notes held by such holder to be prepaid (determined in
accordance with Section 8.4) and the interest to be paid on the prepayment date
with respect to such principal amount being prepaid.
Each such notice of prepayment shall be accompanied by a certificate
of a Senior Financial Officer as to the estimated Make-Whole Amount due in
connection with such prepayment (calculated as if the date of such notice were
the date of the prepayment), setting forth the details of such computation. Two
Business Days prior to such prepayment, the Company shall deliver to each holder
of Notes a certificate of a Senior Financial Officer specifying the calculation
of such Make-Whole Amounts as of the specified prepayment date.
8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes, the principal
amount of the Notes to be prepaid shall be allocated among all of the Notes at
the time outstanding in proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof.
8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8,
the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6. Purchase of Notes.
The Company will not and will not permit any Affiliate to purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except (a) upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement and the Notes or (b) pursuant to an
offer to purchase made by the Company or an Affiliate pro rata to the holders of
all Notes at the time outstanding upon the same terms and conditions. Any such
offer shall provide each holder with sufficient information to enable it to make
an informed decision with respect to such offer and shall remain open for at
least 30 days. The Company will promptly cancel all Notes acquired by it or any
Affiliate pursuant to any such offer and no Notes may be issued in substitution
or exchange for any such Notes.
19
Promptly and in any event within ten Business Days after each such
purchase of Notes, the Company will furnish each holder of the Notes with a
certificate of a Senior Financial Officer describing such purchase (including
the aggregate principal amount of Notes so purchased and the purchase price
therefor) and certifying that such purchase was made in compliance with the
requirements of this Section.
8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole Amount,
the following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal
of such Note that is to be prepaid pursuant to Section 8.2 or has become
or is declared to be immediately due and payable pursuant to Section
12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
any Note, .50% (50 basis points) over the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on (x) the Bloomberg Financial Markets News screen PX1
or the equivalent screen provided by Bloomberg Financial Markets News, or
(y) if such on-line market data is not at the time provided by Bloomberg
Financial Markets News, on the display designated as "Page 500" on the
Dow Xxxxx Markets service (or such other display as may replace Page 500
on the Dow Xxxxx Markets service), in any case for actively traded
non-callable U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement
Date, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable (including by way
of interpolation), the Treasury Constant Maturity Series Yields reported,
for the latest day for which such yields have been so reported as of the
second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or
any comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date. Such implied yield
will be determined, if necessary, by (a) converting U.S. Treasury xxxx
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with a maturity closest to and
greater than the
20
Remaining Average Life and (2) the actively traded U.S. Treasury security
with a maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum of
the products obtained by multiplying (a) the principal component of each
Remaining Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth year) that
will elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior
to its scheduled due date, provided that if such Settlement Date is not a
date on which interest payments are due to be made under the terms of the
Notes, then the amount of the next succeeding scheduled interest payment
will be reduced by the amount of interest accrued to such Settlement Date
and required to be paid on such Settlement Date pursuant to Section 8.2
or 12.1.
"Settlement Date" means, with respect to the Called Principal of
any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
9.1. Compliance with Law.
The Company will and will cause each of its Restricted Subsidiaries
to comply with all laws, ordinances or governmental rules or regulations to
which each of them is subject, including without limitation Environmental Laws,
and will obtain and maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.2. Insurance.
The Company will and will cause each of its Restricted Subsidiaries
to maintain, with financially sound and reputable insurers, insurance with
respect to their respective properties and businesses against such casualties
and contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance if adequate reserves are maintained
with respect thereto to the extent required by GAAP) as is customary in the case
21
of entities of established reputations engaged in the same or a similar business
and similarly situated.
9.3. Maintenance of Properties.
The Company will and will cause each of its Restricted Subsidiaries
to maintain and keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition (other than ordinary wear
and tear), so that the business carried on in connection therewith may be
conducted properly at all times, provided that this Section shall not prevent
the Company or any Restricted Subsidiary from selling all or any substantial
part of the assets of any member of the Pittston Minerals Group or from
discontinuing the operation and the maintenance of any of its other properties
if such discontinuance is desirable in the conduct of its business and the
Company has concluded that such discontinuance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
9.4. Payment of Taxes and Claims.
The Company will and will cause each of its Restricted Subsidiaries
to file all tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other
taxes, assessments, governmental charges, or levies imposed on them or any of
their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any Restricted
Subsidiary, provided that neither the Company nor any Restricted Subsidiary need
pay any such tax or assessment or claims if (i) the amount, applicability or
validity thereof is contested by the Company or such Restricted Subsidiary on a
timely basis in good faith and in appropriate proceedings, and the Company or a
Restricted Subsidiary has established adequate reserves therefor in accordance
with GAAP on the books of the Company or such Restricted Subsidiary or (ii) the
nonpayment of all such taxes and assessments in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
9.5. Corporate Existence, etc.
Subject to Section 10.6, the Company will at all times preserve and
keep in full force and effect its corporate existence. Subject to Sections 10.4
and 10.6, the Company will at all times preserve and keep in full force and
effect the corporate existence of each of its Restricted Subsidiaries (unless
merged into the Company or a Restricted Subsidiary) and all rights and
franchises of the Company and its Restricted Subsidiaries unless, in the good
faith judgment of the Company, the termination of or failure to preserve and
keep in full force and effect such corporate existence, right or franchise could
not, individually or in the aggregate, have a Material Adverse Effect.
9.6. Additional Subsidiary Guarantees; Release of Subsidiary Guarantees.
(a) So long as the Bank Credit Agreement remains in effect the
Company will cause each Restricted Subsidiary that becomes a borrower or a
guarantor thereunder or in respect thereof after the date of the Closing (if
such Restricted Subsidiary is not at the time a Subsidiary
22
Guarantor) to become a Subsidiary Guarantor by executing and delivering a
Subsidiary Guarantee, prior to or concurrently with so becoming a borrower or a
guarantor; and promptly and in any event within ten Business Days thereafter the
Company will furnish each holder of the Notes with a counterpart of such
executed Subsidiary Guarantee, together with an opinion of Cravath, Swaine &
Xxxxx or other counsel reasonably satisfactory to the Required Holders (which
opinion may be subject to customary exceptions, qualifications and limitations
under the circumstances none of which shall affect the parity of obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee and the obligations of
such Subsidiary Guarantor as a borrower or guarantor under the Bank Credit
Agreement) to the effect that such Subsidiary Guarantee has been duly
authorized, executed and delivered by such Restricted Subsidiary and is valid,
binding and enforceable in accordance with its terms.
(b) Except as provided in Subsection (c) below, the Company will
cause each Subsidiary Guarantee to remain in full force and effect at all times
after the execution and delivery thereof, provided that you and each other
holder of a Note, by acceptance of such Note, agree that any Subsidiary
Guarantor shall automatically be discharged from all of its obligations and
liabilities under its Subsidiary Guarantee, effective at the time such
Subsidiary Guarantor ceases to be a Subsidiary of the Company after giving
effect to a consolidation, merger, sale or other disposition (other than in a
transaction resulting in an assumption by the successor pursuant to Section
10.6(a)(ii)), and except that this proviso shall not apply (i) if a Default or
Event of Default has occurred and is continuing, (ii) to a Subsidiary Guarantor
if any amount is then due and payable under its Subsidiary Guarantee, (iii) to a
Subsidiary Guarantor which at the time is a guarantor of any other Indebtedness
of the Company or another Restricted Subsidiary (other than a Restricted
Subsidiary that ceases to be a Subsidiary of the Company after giving effect to
such transaction) that is not also concurrently being released or (iv) unless
within three Business Days after such discharge, the Company shall have
furnished each holder of the Notes with a certificate of a Senior Financial
Officer describing such transaction and certifying that such discharge was
effected in compliance with the terms of this Subsection (b).
(c) Notwithstanding the requirements of the foregoing Subsection
(b), Pittston Minerals Group Inc. and any Subsidiary of Pittston Minerals Group
Inc. that is a Subsidiary Guarantor shall automatically be discharged from their
respective Subsidiary Guarantees, without further action on the part of the
holders of any of the Notes, upon the sale by the Company of the capital stock
of any member of the Pittston Minerals Group to a Person which is not an
Affiliate of the Company or the sale of all or any substantial part of the
assets of any member of the Pittston Minerals Group to any person.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
10.1. Liens.
The Company will not and will not permit any Restricted Subsidiary
to create, assume, incur or suffer to exist any Lien upon or with respect to any
property or assets, whether now owned or hereafter acquired, securing any
Indebtedness without making effective provision (pursuant to documentation in
form and substance reasonably satisfactory to the Required
23
Holders) whereby the Notes shall be secured by such Lien equally and ratably
with or prior to any and all Indebtedness and other obligations to be secured
thereby, provided that nothing in this Section 10.1 shall prohibit:
(a) Liens in respect of property of the Company or a Restricted
Subsidiary existing on the date of the Closing and described in Schedule
5.15;
(b) Liens in respect of property acquired or constructed or
improved by the Company or a Restricted Subsidiary after the date of the
Closing, which are created at the time of or within one year after
acquisition or completion of construction or improvement of such property
to secure Indebtedness assumed or incurred to finance all or any part of
the purchase price or cost of construction or improvement of such
property, provided that in any such case
(i) no such Lien shall extend to or cover any other property
of the Company or such Restricted Subsidiary, as the case may be,
and
(ii) the aggregate principal amount of Indebtedness secured
by all such Liens in respect of any such property shall not exceed
the cost of such property and any improvements then being financed;
(c) Liens in respect of property acquired by the Company or a
Restricted Subsidiary after the date of the Closing, existing on such
property at the time of acquisition thereof (and not created in
anticipation thereof), or in the case of any Person that after the date of
the Closing becomes a Subsidiary or is consolidated with or merged with or
into the Company or a Restricted Subsidiary or sells, leases or otherwise
disposes of all or substantially all of its property to the Company or a
Restricted Subsidiary, Liens existing at the time such Person becomes a
Subsidiary or is so consolidated or merged or effects such sale, lease or
other disposition of property (and not created in anticipation thereof),
provided that in any such case no such Lien shall extend to or cover any
other property of the Company or such Restricted Subsidiary, as the case
may be;
(d) Liens securing Indebtedness owed by a Restricted Subsidiary to
the Company or to a Wholly-Owned Restricted Subsidiary;
(e) extensions, renewals or replacements of Liens permitted by
clause (a), (b), (c) or (d) above (including successive extensions,
renewals and replacements), provided that the principal amount of
Indebtedness (or the maximum commitment therefor) secured by any such Lien
is not increased and such Lien does not extend to or cover any property
other than the property covered by such Lien on the date of such
extension, renewal or replacement; and
(f) Liens which would otherwise not be permitted by clauses (a)
through (e) above, securing additional Indebtedness of the Company or a
Restricted Subsidiary, provided that after giving effect thereto (and to
the substantially concurrent application of the proceeds of such
Indebtedness) Priority Debt does not exceed 35% of Consolidated
Capitalization.
24
As used in this Agreement the term "Priority Debt" means, at any
date, the sum (without duplication) of (A) the aggregate unpaid principal amount
of Indebtedness (including Capitalized Lease Obligations) of the Company and its
Restricted Subsidiaries secured by Liens permitted by Section 10.1(f) plus (B)
the aggregate unpaid principal amount of Indebtedness of all Restricted
Subsidiaries (other than Indebtedness permitted by clauses (a) to (d),
inclusive, of Section 10.2) plus (C) the aggregate Attributable Debt in
connection with all sale and leaseback transactions of the Company and its
Restricted Subsidiaries entered into after the date of the Closing in accordance
with the provisions of Section 10.3(a).
For purposes of this Section 10.1: any Lien existing in respect of
property of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary
is designated a Restricted Subsidiary pursuant to Section 10.9 shall be deemed
to have been created at that time; and the sale or transfer of (x) coal, oil,
gas or other minerals in place for a period of time until, or in an amount such
that, the transferee will realize therefrom a specified amount of money (however
determined) or a specified amount of such coal or other minerals or (y) any
other interest in property of the character commonly referred to as a
"production payment" shall not be deemed to constitute Indebtedness secured by a
Lien.
10.2. Restricted Subsidiary Indebtedness.
The Company will not permit any Restricted Subsidiary to create,
assume, incur, guarantee or otherwise become liable in respect of any
Indebtedness except
(a) Indebtedness secured by Liens permitted by clause (b), (c),
(d) or (e) of Section 10.1,
(b) in the case of any Person that after the date of the Closing
becomes a Restricted Subsidiary or is consolidated with or merged with or
into a Restricted Subsidiary or sells, leases or otherwise disposes of all
of its property to a Restricted Subsidiary, Indebtedness outstanding at
the time such Person becomes a Restricted Subsidiary or is so consolidated
or merged or effects such sale, lease or other disposition of property
(and not created in anticipation thereof, including extensions, renewals
or replacements of such Indebtedness, provided that the principal amount
of such Indebtedness is not increased),
(c) Indebtedness of any Subsidiary Guarantor,
(d) Indebtedness owing to the Company or a Wholly-Owned Restricted
Subsidiary, and
(e) other Indebtedness, provided that immediately after giving
effect to such other Indebtedness Priority Debt does not exceed 35% of
Consolidated Capitalization.
For purposes of this Section 10.2: a Restricted Subsidiary shall be
deemed to have incurred Indebtedness in respect of any obligation previously
owed to the Company or to a Wholly-Owned Restricted Subsidiary on the date the
obligee ceases for any reason to be the Company or a Wholly-Owned Restricted
Subsidiary; a Person that hereafter becomes a Restricted Subsidiary shall be
deemed at that time to have incurred all of its outstanding
25
Indebtedness; and any Unrestricted Subsidiary or other Person that hereafter
becomes a Restricted Subsidiary shall be deemed at that time to have incurred
all of its outstanding Indebtedness.
10.3. Limitation on Sale and Leaseback Transactions.
The Company will not and will not permit any Restricted Subsidiary
to sell, lease, transfer or otherwise dispose of (collectively, a "transfer")
any asset on terms whereby the asset or a substantially similar asset is or may
be leased or reacquired by the Company or any Restricted Subsidiary over a
period in excess of three years, unless either
(a) after giving effect to such transaction and the incurrence of
Attributable Debt in respect thereof Priority Debt does not exceed 35% of
Consolidated Capitalization, or
(b) the net proceeds realized from the transfer are applied within
365 days after the receipt thereof to reinvest in property or assets for
use in the business of the Company and its Restricted Subsidiaries or to
repay unsubordinated funded Indebtedness of the Company or a Restricted
Subsidiary (which may, but need not, include prepayment of the Notes
pursuant to Section 8.2 or an offer to purchase Notes in accordance with
Section 8.7).
10.4. Limitation on Asset Sales.
The Company will not and will not permit any Restricted Subsidiary
to, directly or indirectly, make any sale, transfer, lease (as lessor), loan or
other disposition of any property or assets (an "Asset Sale") other than:
(a) Asset Sales in the ordinary course of business;
(b) Asset Sales of property or assets by a Restricted Subsidiary
to the Company or a Wholly-Owned Restricted Subsidiary;
(c) any Asset Sale involving assets or the capital stock of any
member of the Pittston Minerals Group;
(d) any Asset Sale involving aircraft, aircraft replacement parts
and facilities and equipment by BAX Global Inc. and/or its Subsidiaries up
to $75,000,000 on a cumulative basis for all periods after September 30,
2000;
(e) any Asset Sale to the extent made in exchange for other
property or assets for use in the business of the Company and its
Restricted Subsidiaries; and
(f) other Asset Sales, provided that in each case
(i) immediately before and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing,
and
26
(ii) the aggregate net book value of property or assets
disposed of in such Asset Sale and all other Asset Sales under this
clause (f) by the Company and its Restricted Subsidiaries does not
exceed (x) 15% of Consolidated Total Assets during the immediately
preceding twelve months or (y) 30% of Consolidated Total Assets
since January 18, 2001 (Consolidated Total Assets in each case
determined as of the last day of the quarterly accounting period
ending on or most recently prior to the date of such Asset Sale)
and provided further that for purposes of subclause (ii) above there
shall be included the net book value of property or assets disposed of in
an Asset Sale only to the extent that an amount equal to the net proceeds
realized upon such Asset Sale has not been applied by the Company or such
Restricted Subsidiary, as the case may be, within 365 days after the
effective date of such Asset Sale to (1) the reinvestment in property or
assets for use in the business of the Company and its Restricted
Subsidiaries, (2) the repayment of unsubordinated funded Indebtedness or
(3) payment into The Pittston Company Employee Welfare Benefit Trust or
any successor of such trust.
10.5. Financial Conditions.
(a) The Company will not permit Consolidated EBITDA for any period
of four consecutive fiscal quarters to be less than 300% of Consolidated
Interest Expense for such period.
(b) The Company will not at any time permit Consolidated Net Worth
to be less than the sum of (a) $554,000,000 plus (b) 25% of Consolidated Net
Income (if positive) for the fiscal quarter ending December 31, 2000 plus (c)
25% of Consolidated Net Income for each fiscal year thereafter for which
Consolidated Net Income is positive.
(c) The Company will not permit the Ratio of Consolidated
Indebtedness to Consolidated Capitalization as of the last day of any fiscal
quarter to exceed 0.60 to 1.00.
As used in this Section 10.5(c): the term "Ratio of Consolidated
Indebtedness to Consolidated Capitalization" means, as of any date, the ratio of
(a) the sum of (i) Consolidated Indebtedness plus (ii) the amount, if any, by
which Discounted Consolidated Lease Rentals exceeds $350,000,000 to (b) the sum
of (i) the amount determined pursuant to the preceding clause (a) plus (ii)
Consolidated Net Worth; the term "Discounted Consolidated Lease Rentals" means,
as of the December 31 next preceding such date of determination (or as of such
date if such date is December 31), (a) the aggregate amount of Lease Rentals
payable by the Company and its Restricted Subsidiaries as lessee during the
remaining term of all noncancellable leases (other than Capital Leases) of real
or personal property (discounted on the same periodic basis from the respective
due dates thereof at an interest rate of 10% per annum) minus (b) the aggregate
minimum sublease rentals payable to the Company and its Restricted Subsidiaries
during the remaining term of all noncancellable subleases of real or personal
property (discounted as aforesaid), all determined on a consolidated basis
consistent with Note 13 to the audited financial statements of the Company at
and for the year ending December 31, 1999; and the term "Lease Rentals" means,
with respect to any particular lease or sublease, the total amount of rent and
other obligations (whether or not designated as rent) payable by the
27
lessee or sublessee during the remaining term of such lease or sublease
(excluding any extension or renewal thereof at the option of either party to
such lease or sublease unless such option has been exercised), after excluding
amounts required to be paid by the lessee or sublessee (whether or not
designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, utilities (including water rates),
operating and labor costs and similar charges.
10.6. Merger, Consolidation, etc.
The Company will not and will not permit any Restricted Subsidiary
to consolidate with or merge with any other corporation or convey, transfer or
lease all or substantially all of its assets in a single transaction or series
of transactions to any Person (other than Asset Sales permitted by Section
10.4(c) and any consolidation or merger of any member of the Pittston Minerals
Group with, or conveyance, transfer or lease by any member of the Pittston
Minerals Group to, a Person which is not an Affiliate of the Company), except as
follows:
(a) a Restricted Subsidiary may consolidate with or merge with any
other corporation or convey or transfer all or substantially all of its
assets to
(i) the Company (provided that the Company shall be the
continuing or surviving corporation) or a then existing Restricted
Subsidiary, or
(ii) any other Person, provided that
(A) if such Restricted Subsidiary is a Subsidiary
Guarantor and the continuing, surviving or acquiring
corporation is another Subsidiary, such continuing, surviving
or acquiring corporation shall have (1) executed and delivered
to each holder of a Note its assumption of the due and
punctual performance and observance of all obligations of such
Restricted Subsidiary under its Subsidiary Guarantee and (2)
caused to be delivered to each holder of a Note an opinion of
counsel reasonably satisfactory to the Required Holders to the
effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and
comply with the terms hereof, and
(B) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing; and
(b) the Company may consolidate with or merge with any other
corporation or convey or transfer all or substantially all of its assets
to a corporation organized and existing under the laws of the United
States or any State thereof, provided that
(i) the continuing, surviving or acquiring corporation (if
not the Company) shall have (A) executed and delivered to each
holder of a Note its assumption of the due and punctual performance
and observance of all obligations of the Company under this
Agreement, the Other Agreements and the Notes and (B) caused to be
delivered to each holder of a Note an opinion of counsel reasonably
satisfactory to the Required Holders to the effect that all
agreements or
28
instruments effecting such assumption are enforceable in accordance
with their terms and comply with the terms hereof, and
(ii) immediately after giving effect to such transaction,
(A) no Default or Event of Default shall have occurred and be
continuing and (B) the Company would be in compliance with
paragraphs (a) and (c) of Section 10.5 on a pro forma basis as if
such transaction had occurred on the last day of the most recently
ended fiscal quarter.
No such conveyance, transfer or lease of all or substantially all of the assets
of the Company shall have the effect of releasing the Company or any successor
corporation that shall theretofore have become such in the manner prescribed in
this Section 10.6 from its liability under this Agreement or the Notes.
10.7. Lines of Business.
The Company will not and will not permit any Restricted Subsidiary
to engage in any business other than (a) the businesses in which the Company and
its Restricted Subsidiaries are engaged on the date of the Closing (as described
in the Form 10-K) and businesses reasonably related or complementary thereto or
in furtherance thereof and (b) lines of business that are insignificant when
viewed in the overall context of the business then engaged in by the Company and
its Restricted Subsidiaries taken as a whole.
10.8. Transactions with Affiliates.
The Company will not and will not permit any Restricted Subsidiary
to enter into directly or indirectly any Material transaction or Material group
of related transactions (including without limitation the purchase, lease, sale
or exchange of properties of any kind or the rendering of any service) with any
Affiliate (other than the Company or another Restricted Subsidiary), except in
the ordinary course and pursuant to the reasonable requirements of the Company's
or such Restricted Subsidiary's business and upon fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person not an
Affiliate. For purposes of this Section 10.8 a Material transaction or Material
group of related transactions shall be measured in relation to the Company and
the Subsidiary Guarantors at the time, taken as a whole.
10.9. Designation of Restricted and Unrestricted Subsidiaries.
(a) Subject to paragraph (b) below, the Company will not designate
any Restricted Subsidiary as an Unrestricted Subsidiary if such Restricted
Subsidiary was (i) more than twice previously (directly or indirectly) an
Unrestricted Subsidiary in the case of any Restricted Subsidiary listed as an
Unrestricted Subsidiary in Schedule 5.4 or any Restricted Subsidiary that is
designated as an Unrestricted Subsidiary at the time such Restricted Subsidiary
first became a Subsidiary or (ii) more than once previously (directly or
indirectly) an Unrestricted Subsidiary in the case of any other Restricted
Subsidiary.
(b) The Company will not designate any Restricted Subsidiary as an
Unrestricted Subsidiary or any Unrestricted Subsidiary or other Person as a
Restricted Subsidiary
29
unless immediately after giving pro forma effect to such designation, (i) no
Default or Event of Default shall have occurred and be continuing and (ii) the
Company would be in compliance with paragraphs (a) and (c) of Section 10.5 on a
pro forma basis as if such designation had occurred on the last day of the most
recently ended fiscal quarter.
(c) Forthwith and in any event within ten Business Days after a
designation pursuant to this Section 10.9, the Company will furnish each holder
of the Notes with a certificate of a Senior Financial Officer specifying the
effective date of such designation and setting forth calculations in reasonable
detail demonstrating compliance with the conditions to such designation set
forth in the immediately preceding paragraph
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions
or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-
Whole Amount, if any, on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or
otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance with
any term contained in Section 7.1(d) or Sections 10.1 to 10.6, inclusive,
and in the case of Section 10.5(b) such default is not remedied within 30
days after a Responsible Officer obtains knowledge thereof (so long as the
Company is proceeding diligently and in good faith to cure such default);
or
(d) the Company defaults in the performance of or compliance with
any term contained herein (other than those referred to in paragraphs (a),
(b) and (c) of this Section 11) and such default is not remedied within 30
days after a Responsible Officer obtains knowledge of such default; or
(e) any representation or warranty made in writing by or on behalf
of the Company or any Subsidiary or by any officer of the Company or any
Subsidiary in this Agreement or a Subsidiary Guarantee or in any writing
furnished in connection with the transactions contemplated hereby proves
to have been false or incorrect in any material respect on the date as of
which made; or
(f) (i) the Company or any Restricted Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any principal
of or premium or make-whole amount or interest on any Indebtedness (other
than the Notes) that is outstanding in an aggregate principal amount of at
least $25,000,000 (or its equivalent in any other currency) beyond any
period of grace provided with respect thereto, or (ii) the Company or any
Restricted Subsidiary is in default in the performance of or compliance
with any term of any evidence of any Indebtedness outstanding in an
aggregate principal amount of at least $25,000,000 (or its equivalent in
any other currency) or of any mortgage,
30
indenture or other agreement relating thereto or any other default exists,
and as a consequence of any such default such Indebtedness has become, or
has been declared, due and payable before its stated maturity or before
its regularly scheduled dates of payment, or (iii) in any case as a
consequence of the occurrence or continuation of a change of control or
rating downgrade or any other similar adverse event the Company or any
Restricted Subsidiary has become obligated to purchase or repay
Indebtedness outstanding in an aggregate principal amount of at least
$25,000,000 (or its equivalent in any other currency) before its regular
maturity or before its regularly scheduled dates of payment; or
(g) the Company or any Restricted Subsidiary (i) admits in writing
its inability to pay, or is generally not paying, its debts as they become
due (within the meaning of the Federal Bankruptcy Code), (ii) files, or
consents by answer or otherwise to the filing against it of, a petition
for relief or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (iii) makes an assignment for the benefit of its creditors,
(iv) consents to the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to it or with respect to
any substantial part of its property, (v) is adjudicated as insolvent or
to be liquidated, or (vi) takes corporate action for the purpose of any
of the foregoing; or
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any
Restricted Subsidiary, a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in bankruptcy
or for liquidation or to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or such Restricted Subsidiary, or any such
petition shall be filed against the Company or such Restricted Subsidiary
and such petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $25,000,000 (or its equivalent in any other
currency) are rendered against one or more of the Company and its
Restricted Subsidiaries which judgments are not, within 60 days after
entry thereof, bonded, paid, discharged or stayed pending appeal, or are
not discharged within 60 days after the expiration of such stay; or
(j) if any Subsidiary Guarantor (or any Person at its authorized
direction or on its behalf) shall assert in writing that the Subsidiary
Guarantee of such Subsidiary Guarantor is unenforceable in any material
respect or any Subsidiary Guarantee shall cease to be in full force and
effect as an enforceable instrument except as permitted by Section 9.6; or
(k) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is sought
or granted under section 412 of the Code, (ii) a notice of intent to
terminate any Plan shall have been or is reasonably expected to
31
be filed with the PBGC or the PBGC shall have instituted proceedings
under ERISA section 4042 to terminate or appoint a trustee to administer
any Plan or the PBGC shall have notified the Company or any ERISA
Affiliate that a Plan may become a subject of any such proceedings, (iii)
the aggregate "amount of unfunded benefit liabilities" (within the meaning
of section 4001(a)(18) of ERISA) under all Plans, determined in accordance
with Title IV of ERISA, shall exceed $5,000,000, (iv) the Company or any
ERISA Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, (v) the Company
or any ERISA Affiliate withdraws from any Multiemployer Plan (other than
in connection with the disposition of all or any part of the assets of the
Pittston Minerals Group), or (vi) the Company or any Subsidiary
establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the
liability of the Company or any Subsidiary thereunder; and any such event
or events described in clauses (i) through (vi) above, either individually
or together with any other such event or events, would have a Material
Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company described
in paragraph (g) or (h) of Section 11 (other than an Event of Default described
in clause (i) of paragraph (g) or described in clause (vi) of paragraph (g) by
virtue of the fact that such clause encompasses clause (i) of paragraph (g)) has
occurred, all the Notes then outstanding shall automatically become immediately
due and payable.
(b) If any other Event of Default has occurred and is continuing,
the Required Holders may at any time at its or their option, by notice or
notices to the Company, declare all the Notes at the time outstanding to be
immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes at the
time outstanding affected by such Event of Default may at any time, at its or
their option, by notice or notices to the Company, declare all the Notes held by
it or them to be immediately due and payable.
Upon any Note becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Note will forthwith mature and the
entire unpaid principal amount of such Note, plus (x) all accrued and unpaid
interest thereon and (y) the Make-Whole Amount determined in respect of such
principal amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically
32
provided) and that the provision for payment of a Make-Whole Amount by the
Company in the event that the Notes are prepaid or are accelerated as a result
of an Event of Default, is intended to provide compensation for the deprivation
of such right under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is continuing,
and irrespective of whether any Notes have become or have been declared
immediately due and payable under Section 12.1, the holder of any Note at the
time outstanding may proceed to protect and enforce the rights of such holder by
an action at law, suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein or in any Note, or
for an injunction against a violation of any of the terms hereof or thereof, or
in aid of the exercise of any power granted hereby or thereby or by law or
otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and payable
pursuant to paragraph (b) or (c) of Section 12.1, the Required Holders, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the Notes,
all principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
the non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17, and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a waiver thereof
or otherwise prejudice such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon any holder thereof
shall be exclusive of any other right, power or remedy referred to herein or
therein or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under Section 15, the
Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred in
any enforcement or collection under this Section 12, including without
limitation reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the name
and address of each transferee of one or more
33
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of such Note or
his attorney duly authorized in writing and accompanied by the address for
notices of each transferee of such Note or part thereof), within five Business
Days thereafter the Company shall execute and deliver, at the Company's expense
(except as provided below), one or more new Notes (as requested by the holder
thereof) in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request. Each such new Note shall be
dated and bear interest from the date to which interest shall have been paid on
the surrendered Note or dated the date of the surrendered Note if no interest
shall have been paid thereon. The Company may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in denominations of
less than $100,000, provided that if necessary to enable the registration of
transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $100,000. Any transferee, by its acceptance of a Note
registered in its name (or the name of its nominee), shall be deemed to have
made the representations set forth in Sections 6.1 (so long as applicable) and
6.2.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the ownership of and the loss, theft, destruction or mutilation of any
Note (which evidence shall be, in the case of an Institutional Investor, notice
from such Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or any other Institutional
Investor, such Person's own unsecured agreement of indemnity shall be
deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
within five Business Days thereafter the Company at its own expense shall
execute and deliver, in lieu thereof, a new Note, dated and bearing interest
from the date to which interest shall have been paid on such lost, stolen,
destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
34
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount,
if any, and interest becoming due and payable on the Notes shall be made at the
principal office of The Chase Manhattan Bank in New York City. The Company may
at any time, by notice to each holder of a Note, change the place of payment of
the Notes so long as such place of payment shall be either the principal office
of the Company in New York City or the principal office of a bank or trust
company in New York City.
14.2. Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange
for a new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated,
the Company will pay all costs and expenses (including reasonable attorneys'
fees of your special counsel and, if reasonably required, local or other
counsel) incurred by you and the Other Purchasers or holder of a Note in
connection with such transactions and in connection with any amendments, waivers
or consents under or in respect of this Agreement or the Notes (whether or not
such amendment, waiver or consent becomes effective), including without
limitation: (a) the costs and expenses incurred in enforcing or defending (or
reasonably determining whether or how to enforce or defend) any rights under
this Agreement or the Notes or in responding to any subpoena or other legal
process or informal investigative demand issued in connection with this
Agreement or the Notes, or by reason of being a holder of any Note, and (b) the
costs and expenses, including financial advisors' fees, incurred in connection
with the insolvency or bankruptcy of the Company or any Subsidiary or in
connection with any work-out or
35
restructuring of the transactions contemplated hereby and by the Notes. The
Company will pay, and will save you and each other holder of a Note harmless
from, all claims in respect of any fees, costs or expenses if any, of brokers
and finders (other than those retained by you).
In furtherance of the foregoing, on the date of the Closing the
Company will pay or cause to be paid the fees and disbursements and other
charges (including estimated unposted disbursements and other charges as of the
date of the Closing) of your special counsel which are reflected in the
statement of such special counsel submitted to the Company on or prior to the
date of the Closing. The Company will also pay, promptly upon receipt of
supplemental statements therefor, reasonable additional fees, if any, and
disbursements and charges of such special counsel in connection with the
transactions hereby contemplated (including disbursements and other charges
unposted as of the date of the Closing to the extent such disbursements and
other charges exceed estimated amounts paid as aforesaid).
15.2. Survival.
The obligations of the Company under this Section 15 will survive
the payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive
the execution and delivery of this Agreement and the Notes, the purchase or
transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement
shall be deemed representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this Agreement and the Notes
embody the entire agreement and understanding between you and the Company and
supersede all prior agreements and understandings relating to the subject matter
hereof.
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the observance of
any term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that (a) no amendment or waiver of any of the
provisions of Section 1, 2, 3, 4, 5, 6 or 21, or any defined term (as it is used
therein), will be effective as to you unless consented to by you in writing, and
(b) no such amendment or waiver may, without the written consent of the holder
of each Note at the time outstanding, (i) subject to the provisions of Section
12 relating to acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or change the rate or the time of payment
or method of computation of interest or of the Make-Whole Amount on, the Notes,
(ii) change the percentage of the principal amount of the Notes the holders of
which are
36
required to consent to any such amendment or waiver, or (iii) amend any of
Sections 8, 11(a), 11(b), 12, 17 or 20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to such holder's consideration of or
entering into by any holder of Notes of any waiver or amendment of any of the
terms and provisions hereof unless such remuneration is concurrently paid, or
security is concurrently granted, on the same terms, ratably to each holder of
Notes then outstanding even if such holder did not consent to such waiver or
amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Company without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
37
18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(a) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other address
as you or it shall have specified to the Company in writing,
(b) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(c) if to the Company, to the Company at its address set forth at
the beginning hereof to the attention of the Treasurer, or at such other
address as the Company shall have specified to the holder of each Note in
writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information"
means information delivered to you by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement, provided that such term does not include information
that (a) was publicly known or otherwise known to you prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act or omission
by you or any person acting on your behalf, (c) otherwise becomes known to you
other than through disclosure by the Company or any Subsidiary or by a source
that you know is required to maintain the confidentiality of such information or
(d) constitutes financial
38
statements delivered to you under Section 7.1 that are otherwise publicly
available. You will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in good faith to
protect confidential information of third parties delivered to you, provided
that you may deliver or disclose Confidential Information to (i) your directors,
officers, trustees, employees, agents, attorneys and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by your Notes and by virtue of their position they are required to
comply with this Section 20), (ii) your financial advisors and other
professional advisors whose duties require them to hold confidential the
Confidential Information substantially in accordance with the terms of this
Section 20, (iii) any other holder of any Note, (iv) any Institutional Investor
to which you sell or offer to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this Section
20), (v) any Person from which you offer to purchase any security of the Company
(if such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (vi) any federal
or state regulatory authority having jurisdiction over you, (vii) the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
your investment portfolio or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to you, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is continuing, to
the extent you may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of the rights
and remedies under your Notes and this Agreement. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by and to be
entitled to the benefits of this Section 20 as though it were a party to this
Agreement. On reasonable request by the Company in connection with the delivery
to any holder of a Note of information required to be delivered to such holder
under this Agreement or requested by such holder (other than a holder that is a
party to this Agreement or its nominee), such holder will enter into an
agreement with the Company embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
39
22. MISCELLANEOUS.
22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement by or
on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including without limitation any subsequent
holder of a Note) whether so expressed or not.
22.2. Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.3. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) The Company irrevocably submits to the non-exclusive in
personam jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan, The City of New York, over any suit, action or proceeding
arising out of or relating to this Agreement or the Notes. To the fullest extent
it may effectively do so under applicable law, the Company irrevocably waives
and agrees not to assert, by way of motion, as a defense or otherwise, any claim
that it is not subject to the in personam jurisdiction of any such court, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(b) The Company consents to process being served in any suit,
action or proceeding of the nature referred to in paragraph (a) of this Section
22.3 by mailing a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to the address of such party specified in Section 18
or at such other address of which you shall then have been notified pursuant to
said Section. The Company agrees that such service upon receipt (i) shall be
deemed in every respect effective service of process upon it in any such suit,
action or proceeding and (ii) shall, to the full extent permitted by law, be
taken and held to be valid personal service upon and personal delivery to such
party. Notices hereunder shall be conclusively presumed received as evidenced
by a delivery receipt furnished by the United States Postal Service or any
reputable commercial delivery service.
(c) Nothing in this Section 22.3 shall affect the right of any
holder of Notes to serve process in any manner permitted by law, or limit any
right that the holders of any of the Notes may have to bring proceedings against
the Company in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
40
(d) EACH OF THE PARTIES HERETO WAIVES TRIAL BY JURY IN ANY ACTION
BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
22.4. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding (but without limiting the requirement in Section 8.3 that notice
of any optional prepayment specify a Business Day as the date fixed for such
prepayment), any payment of principal of or Make-Whole Amount or interest on any
Note that is due on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed in the
computation of the interest payable on such next succeeding Business Day.
22.5. Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the fullest extent permitted by applicable law) not
invalidate or render unenforceable such provision in any other jurisdiction.
22.6. Accounting Terms; Changes in GAAP.
All accounting terms used herein which are not expressly defined in
this Agreement have the meanings respectively given to them in accordance with
GAAP. Except as otherwise specifically provided herein, all computations made
pursuant to this Agreement shall be made in accordance with GAAP and all balance
sheets and other financial statements with respect thereto shall be prepared in
accordance with GAAP; provided, however, if (a) at the time of delivery of any
financial statements pursuant to Section 7.1 the Company shall object to making
computations for the purpose of determining compliance with this Agreement on
the basis of any change in GAAP after the date of this Agreement or (b) the
Required Holders shall so object in writing within 60 days after receipt of such
financial statements, then in either case such computations shall be made on a
basis consistent with the most recent financial statements delivered by the
Company to the holders of Notes as to which no such objection shall have been
made (or, prior to the delivery of the first financial statements pursuant to
Section 7.1, consistent with the annual audited financial statements included in
the Form 10-K).
Without limiting the generality of Section 7.1, prior to or
concurrently with the delivery of financial statements reflecting any change in
GAAP, the Company will give notice of such change to the holders of Notes (and
for such purpose a note or explanation in reasonable detail accompanying such
financial statements shall be deemed to constitute notice). The Company will
also give prompt written notice to the holders of Notes in the event that the
Administrative Agent or Required Lenders (as such terms are defined in the Bank
Credit Agreement) object to determining compliance with the Bank Credit
Agreement on the basis of any change in GAAP.
41
Except as otherwise specifically provided herein, any consolidated
financial statement or financial computation shall be done in accordance with
GAAP; and, if at the time that any such statement or computation is required to
be made the Company shall not have any Restricted Subsidiary, such terms shall
mean a financial statement or a financial computation, as the case may be, with
respect to the Company only.
22.7. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.8. Governing Law.
This Agreement and the Notes shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
42
If you are in agreement with the foregoing, please sign the form of
agreement in the space below provided on a counterpart of this Agreement and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
THE PITTSTON COMPANY
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
XXXXX X. XXXXXXXX
Vice President -- Corporate Finance and
Treasurer
The foregoing is hereby agreed to as of the date thereof.
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Xxxxxx Xxxxxx
--------------------------
XXXXXX XXXXXX
Authorized Signatory
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------
XXXXXX X. XXXXXXXX
Authorized Signatory
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------
XXXX X. XXXXXXXXXX
Associate Vice President
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------
XXXX X. XXXXXXXXXX
Associate Vice President
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, with respect to any Person
(including without limitation the Company), (a) any other Person that at such
time directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person, and (b) any
Person beneficially owning or holding, directly or indirectly, 10% or more of
any class of voting or equity interests of the Company or any Subsidiary or any
corporation of which the Company and its Subsidiaries beneficially own or hold,
in the aggregate, directly or indirectly, 10% or more of any class of voting or
equity interests. As used in this definition, "Control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. Unless the context otherwise clearly
requires, any reference to an "Affiliate" is a reference to an Affiliate of the
Company.
"Asset Sale" is defined in Section 10.4.
"Attributable Debt" means, as to any particular lease relating to a
sale and leaseback transaction, the Lease Rentals under such lease (discounted
on the same periodic basis from the respective due dates thereof at an interest
rate of 10% per annum) during the remaining term thereof.
"Bank Credit Agreement" means the Credit Agreement dated as of
October 3, 2000, as amended as of October 2, 2001, among the Company, certain of
its Subsidiaries, Fleet National Bank and The Chase Manhattan Bank, as
Co-Syndication Agents, Bank of America, N.A., as Administrative Agent, and the
Lenders named therein, as supplemented, amended, restated or refinanced from
time to time.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which commercial banks in New York City are required or authorized to be
closed.
"Capital Lease" means, at any time, a lease with respect to which
the lessee is required concurrently to recognize the acquisition of an asset and
the incurrence of a liability in accordance with GAAP.
"Capitalized Lease Obligations" means with respect to any Person,
all outstanding obligations of such Person in respect of Capital Leases, taken
at the capitalized amount thereof accounted for as indebtedness in accordance
with GAAP.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to time.
2
"Company" means The Pittston Company, a Virginia corporation.
"Consolidated EBITDA" means, for any period, an amount equal to the
sum of (a) Consolidated Net Income for such period plus (b) to the extent
deducted in determining Consolidated Net Income for such period, (i)
Consolidated Interest Expense, (ii) income tax expense, (iii) depreciation,
depletion and amortization, and (iv) all other non-cash charges, in each case
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, as applied to
the Company and its Restricted Subsidiaries, all interest expense (whether paid
or accrued) and capitalized interest, including without limitation (a)
amortization of debt discount and premium and (b) the interest component under
Capital Leases, in each case determined on a consolidated basis in accordance
with GAAP.
"Confidential Information" is defined in Section 20.
"Consolidated Capitalization" means, at any date, the sum of (a)
Consolidated Indebtedness plus (b) Consolidated Net Worth, all as determined on
a consolidated basis for the Company and its Restricted Subsidiaries in
accordance with GAAP.
"Consolidated Indebtedness" means, at any date, all Indebtedness of
the Company and its Restricted Subsidiaries determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income of
the Company and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, excluding
(a) the proceeds of any life insurance policy,
(b) any gains arising from (i) the sale or other disposition of
any assets (other than current assets) to the extent that the aggregate
amount of the gains during such period exceeds the aggregate amount of the
losses (other than losses described in clause (h) below) during such
period from the sale, abandonment or other disposition of assets (other
than current assets), (ii) any write-up of assets or (iii) the acquisition
of outstanding securities of the Company or any Restricted Subsidiary,
(c) any amount representing any interest in the undistributed
earnings of any person other than a Restricted Subsidiary,
(d) any earnings, prior to the date of acquisition, of any person
acquired in any manner, and any earnings of any Subsidiary acquired prior
to its becoming a Restricted Subsidiary,
(e) any earnings of a successor to or transferee of the assets of
the Company prior to its becoming such successor or transferee,
3
(f) any deferred credit (or amortization of a deferred credit)
arising from the acquisition of any person,
(g) any extraordinary gains not covered by clause (b) above, and
(h) any loss arising from or relating to the initial
classification of any portion of the Pittston Minerals Group as
discontinued operations and/or subsequent adjustments associated with the
dispositions of such discontinued operations and any loss or charges in
connection with the disposition of assets relating to aircraft, aircraft
replacement parts and facilities and equipment by BAX Global Inc. and/or
its Subsidiaries up to $75,000,000 on a cumulative basis for all periods
after September 30, 2000.
"Consolidated Net Worth" means, at any date, on a consolidated basis
for the Company and its Restricted Subsidiaries, shareholders' equity or net
worth as determined and computed on a consolidated basis in accordance with
GAAP, provided that in determining "Consolidated Net Worth" there shall be (a)
included any issuance of Preferred Stock by the Company (except mandatorily
redeemable Preferred Stock), (b) added back the amount of any minority interest
and (c) excluded (i) any loss arising from or relating to sale of or the initial
classification of any portion of the Pittston Minerals Group as discontinued
operations and any subsequent adjustments associated with the disposition of
such discontinued operations, (ii) any loss or charges in connection with the
disposition of assets relating to aircraft, aircraft replacement parts and
facilities and equipment by BAX Global Inc. and/or its Subsidiaries up to
$75,000,000 on a cumulative basis for all periods after September 30, 2000.
"Default" means an event or condition the occurrence or existence of
which would, with the giving of notice or the lapse of time, or both, become an
Event of Default.
"Default Rate" means that rate of interest for the Notes that is the
greater of (i) 2% per annum above the stated interest rate for the Notes and
(ii) 2% above the rate of interest publicly announced by The Chase Manhattan
Bank from time to time at its principal office in New York City as its prime
rate.
"Discounted Consolidated Lease Rentals" is defined in Section
10.5(c).
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations promulgated
thereunder from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
4
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Form 10-K" means the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2001, as filed with the Securities and Exchange
Commission, including the financial statements incorporated by reference
therein.
"GAAP" means, except as otherwise provided in Section 22.6,
generally accepted accounting principles as in effect from time to time in the
United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other
political subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary,
or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including without limitation obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of
such Indebtedness or obligation, or (ii) to maintain any working capital
or other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such Indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
5
In any computation of the Indebtedness or other liabilities of the
obligor under any Guaranty, the Indebtedness or other obligations that are the
subject of such Guaranty shall be assumed to be direct obligations of such
obligor.
"Hazardous Material" means any and all pollutants, toxic or
hazardous wastes or any other substances, the removal of which may be required
or the generation, manufacture, refining, production, processing, treatment,
storage, handling, transportation, transfer, use, disposal, release, discharge,
spillage, seepage, or filtration of which is restricted, prohibited or penalized
by any applicable law (including without limitation asbestos, urea formaldehyde
foam insulation and polycholorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Company pursuant to
Section 13.1.
"Indebtedness" with respect to any Person means, at any time,
without duplication,
(a) its liabilities for borrowed money and its redemption
obligations in respect of Preferred Stock that is mandatorily redeemable
prior to the final maturity of the Notes,
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business and not overdue but including all liabilities
created or arising under any conditional sale or other title retention
agreement with respect to any such property),
(c) its Capitalized Lease Obligations,
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities),
(e) the maximum amount of all drafts drawn under standby letters
of credit issued or bankers' acceptance facilities created for the account
of such Person (to the extent unreimbursed),
(f) Swaps of such Person not entered into for the purpose of
hedging in the ordinary course of business, and
(g) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (f) above.
Indebtedness of any person shall include all obligations of such person of the
character described in clauses (a) through (g) above to the extent such person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding (together with one or more of its Affiliates)
more than 2% of the aggregate principal amount of the Notes then outstanding,
and (c) any bank, trust company,
6
savings and loan association or other financial institution, any pension plan,
any investment company, any insurance company, any broker or dealer, or any
other similar financial institution or entity, regardless of legal form.
"Lease Rentals" is defined in Section 10.5(c).
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets or properties of the Company and its
Restricted Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Restricted Subsidiaries taken as a whole, (b) the ability of the
Company to perform its obligations under this Agreement and the Notes or (c) the
validity or enforceability of this Agreement or the Notes or any Subsidiary
Guarantee.
"Multiemployer Plan" means any Plan that is a "multiemployer plan"
(as such term is defined in section 4001(a)(3) of ERISA).
"Notes" is defined in Section 1.1.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Pittston Minerals Group" means Pittston Minerals Group Inc. and its
Subsidiaries from time to time.
7
"Plan" means an "employee benefit plan" (as defined in section 3(3)
of ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Priority Debt" is defined in Section 10.1.
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, inchoate
or otherwise.
"Prior Note Purchase Agreements" means the several Note Purchase
Agreements dated as of January 18, 2001 (as amended or otherwise modified from
time to time) entered into by the Company with the institutional purchasers
listed in Schedule A thereto.
"PTE" is defined in Section 6.2.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued on March 13, 1984 by the United States Department of Labor.
"Required Holders" means, at any time, the holders of at least a
majority in unpaid principal amount of the Notes at the time outstanding
(exclusive of Notes then owned by the Company or any of its Affiliates);
provided, however, that for purposes of any amendment, waiver or consent with
respect to this Agreement or the Notes that is substantially identical to an
amendment, waiver or consent that has been approved under the Prior Note
Purchase Agreements, "Required Holders" means, at any time, the holders of at
least 50% in unpaid principal amount of the Notes at the time outstanding
(exclusive of Notes then owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer.
"Restricted Subsidiary" means as of the date of this Agreement each
Subsidiary as designated as such in Schedule 5.4 and thereafter means each other
Subsidiary that is not an Unrestricted Subsidiary; provided that each of the
Subsidiary Guarantors listed in Section 4.5 shall at all times remain a
Restricted Subsidiary, in each case so long as such corporation is a Subsidiary
Guarantor.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
8
"Subsidiary" means, as to any Person, any corporation or other
business entity a majority of the combined voting power of all Voting Stock of
which is owned by such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries. Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Company.
"Subsidiary Guarantee" is defined in Section 1.2.
"Subsidiary Guarantors" is defined in Section 4.5.
"Swaps" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"Unrestricted Subsidiary" means any Subsidiary that has been
designated as an Unrestricted Subsidiary on Schedule 5.4, any Restricted
Subsidiary that is designated as an Unrestricted Subsidiary after the date of
the Closing pursuant to Section 10.9 and any Person that becomes a Subsidiary
after the date of the Closing that is not designated as a Restricted Subsidiary
pursuant to said Section, in each case other than an Unrestricted Subsidiary
that is subsequently redesignated as a Restricted Subsidiary pursuant to said
Section.
"Voting Stock" means, with respect to any Person, any shares of
stock or other equity interests of any class or classes of such Person whose
holders are entitled under ordinary circumstances (irrespective of whether at
the time stock or other equity interests of any other class or classes shall
have or might have voting power by reason of the happening of any contingency)
to vote for the election of a majority of the directors, managers, trustees or
other governing body of such Person.
"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted Subsidiary all of the equity interests (except directors' qualifying
shares) and voting interests of which are owned by any one or more of the
Company and the Company's other Wholly-Owned Restricted Subsidiaries at such
time.
