Exhibit 4.2
SUPPLEMENTAL INDENTURE
Supplemental indenture (this "Supplemental Indenture"), dated as of
October 4, 2004, between Continental Global Group, Inc., a Delaware corporation
(the "Company"), Continental Conveyor & Equipment Pty., Ltd., a corporation
organized under the laws of Australia ("CCEP"), Continental ACE Pty., a
corporation organized under the laws of Australia ("Continental ACE"), Xxxxxxx
Conveyor Company, a Delaware corporation, Continental Conveyor & Equipment
Company, a Delaware corporation, and Xxxxx Fargo Bank, National Association
(successor by consolidation to Xxxxx Fargo Bank Minnesota, National Association,
formerly known as Norwest Bank Minnesota, National Association), as trustee
under the indenture referred to below (the "Trustee"). Capitalized terms used
herein and not defined herein shall have the meaning ascribed to them in the
Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of April 1, 1997 (as
supplemented by the Supplemental Indenture, dated as of September 23, 1999,
among CCEP and Continental ACE, each a subsidiary of the Company, and the
Trustee), providing for the issuance of an aggregate principal amount of
$120,000,000 of 11% Senior Notes due 2007 (the "Senior Notes");
WHEREAS, pursuant to Section 9.02 of the Indenture, the Senior Notes
may be amended or supplemented with the consent of the holders of at least a
majority in principal amount of the Senior Notes then outstanding (including,
without limitation, consents obtained in connection with an exchange offer for
the Senior Notes);
WHEREAS, the Company has received the requisite consents required to
amend the Senior Notes pursuant to Section 9.02 of the Indenture in connection
with an exchange offer for all of its outstanding Senior Notes; and
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AMENDMENTS TO SENIOR NOTES.
(a) Article 3 (Redemption and Prepayment) of the Indenture is
hereby amended by the deletion in its entirety of Section 3.09
(Repurchase Offers).
(b) Article 4 (Covenants) of the Indenture is hereby amended
by the deletion of each of the following Sections in its entirety: 4.05
(Taxes), 4.06 (Stay, Extension and Usury Laws), 4.07 (Restricted
Payments), 4.08 (Dividends and Other Payment Restrictions Affecting
Subsidiaries), 4.09 (Incurrence of Indebtedness and Issuance of
Preferred Stock), 4.10 (Asset Sales); 4.11 (Transactions with
Affiliates), 4.12 (Liens), 4.13 (Sale and Leaseback Transactions), 4.14
(Offer to Purchase Upon Change of Control), 4.15 (Corporate Existence),
4.16 (Limitation on Issuances of Capital Stock of Wholly Owned
Subsidiaries), 4.17 (Business Activities), 4.18 (Additional Subsidiary
Guarantees) and 4.19 (Payment for Consents).
(c) Article 5 (Successors) of the Indenture is hereby amended
by the deletion in its entirety of Section 5.01 (Merger, Consolidation,
or Sale of Assets).
(d) Article 6 (Defaults and Remedies) of the Indenture is
hereby amended by the deletion in its entirety of Section 6.01 (Events
of Default) and the substitution therefor of the following:
"SECTION 6.01 EVENTS OF DEFAULT.
Each of the following constitutes an "Event of
Default:"
(i) default for 30 days in the payment when due of
interest on, or Liquidated
Damages, if any, with respect to the Senior Notes;
(ii) default in payment when due of principal of or
premium, if any, on the Senior
Notes;
(iii) failure by the Company or any Subsidiary for 60
days after notice to comply
with its other agreements in this Indenture or the Senior Notes;
(iv) the Company, any of its Significant Subsidiaries
or any group of Subsidiaries
that, taken together, would constitute a Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order
for relief against it in an
involuntary case in which it is the
debtor,
(iii) consents to the appointment of a
Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the
benefit of its creditors, or
(v) admits in writing its inability
generally to pay its debts as the
same become due;
(v) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against the Company,
any of its Significant Subsidiaries
or any group of Subsidiaries that,
taken together, would constitute a
Significant Subsidiary, in an
involuntary case in which it is the
debtor,
(ii) appoints a Custodian of the Company,
any of its Significant Subsidiaries
or any group of Subsidiaries that,
taken together, would constitute a
Significant Subsidiary, or for all
or substantially all of the property
of the Company, any of its
Significant Subsidiaries or any
group of Subsidiaries that taken,
taken together, would constitute a
Significant Subsidiary, or
(iii) orders the liquidation of the
Company or any of its Subsidiaries,
and the order or decree contemplated in clauses (i), (ii) or (iii),
remains unstayed and in effect for 60 consecutive days; or
(vi) the termination of the Subsidiary Guarantee of any
Subsidiary Guarantor for any reason not permitted by this Indenture, or
the denial of any Person acting on behalf of any such Subsidiary
Guarantor of its Obligations under any such Subsidiary Guarantee.
To the extent that the last day of the period referred to in
clauses (i) or (iii) of the immediately preceding paragraph is not a Business
Day, then the first Business Day following such day shall be deemed to be the
last day of the period referred to in such clauses. Any "day" will be deemed to
end as of 11:59 p.m., New York City time."
3. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
4. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
5. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
6. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the Company.
[signature page follows]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ____________ CONTINENTAL GLOBAL GROUP, INC.
By: _____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and CFO
Dated: ____________ CONTINENTAL CONVEYOR & EQUIPMENT PTY., LTD.
By: _____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Director
Dated: ____________ CONTINENTAL ACE PTY.
By: _____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Director
Dated: ____________ XXXXXXX CONVEYOR COMPANY
By: _____________________________
Name: Xxxxxx X. Xxxx
Title: Director
Dated: ____________ CONTINENTAL CONVEYOR & EQUIPMENT COMPANY
By: _____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer,
Secretary
S-2
Dated: ____________ XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Trustee
By: ____________________________
Name:
By:
