Exhibit 10.2
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of the 9/th/ day of February,
2001, between XXXXXX ENERGY COMPANY, a Delaware corporation, formerly named
Fluor Corporation (the "Company"), having its principal executive office at 0
Xxxxx 0/xx/ Xxxxxx, Xxxxxxxx, Xxxxxxxx, 00000, and BANKERS TRUST COMPANY, a New
York banking corporation (the "Trustee"), supplements that certain Indenture
dated as of February 18, 1997 (the "Indenture", capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Indenture).
RECITALS OF THE COMPANY
The Company desires to enter into this First Supplemental Indenture
pursuant to Section 9.01(2) of the Indenture to add a covenant of the Company
for the benefit of the Holders of all Securities.
A Company Order, duly executed by authorized officers of the Company, has
been delivered to the Trustee in accordance with Section 9.01(2) of the
Indenture authorizing the Company to enter into this First Supplemental
Indenture for the purpose described above and no consent of the Holders is
required for the execution and delivery of this First Supplemental Indenture by
the Company and the Trustee.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
For valuable consideration, the receipt of which is hereby acknowledged, it
is mutually covenanted and agreed, for the equal and ratable benefit of all
Holders of the Securities, as follows:
SECTION 1. Supplement to Indenture.
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Article Ten of the Indenture is hereby supplemented by the addition of the
following covenant in a new Section 10.8A as follows:
SECTION 10.08A. Maintenance of Guaranty in Certain Circumstances.
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The Company's obligations to duly and punctually pay the
principal of, interest on, and premium, if any, with respect to
the Securities, in accordance with the terms of the Securities
and this Indenture, shall be fully guaranteed by A.T. Xxxxxx Coal
Company, Inc., a Virginia corporation and a wholly-owned
Subsidiary of the Company, so long as the Company's obligations
under that certain three-year Credit Agreement, dated as of
November 30, 2000, among the Company, as borrower, A.T. Xxxxxx
Coal Company, Inc., as guarantor, the lenders party thereto,
Citibank, N.A., as administrative agent for the lenders party
thereto, PNC Bank, National Association, as Syndication Agent,
and First Union National Bank, as Documentation Agent, and any
other bank credit facility which would constitute Funded Debt (as
such term is defined in Section 1.02 of the Indenture) of the
Company, are also guaranteed by A.T. Xxxxxx Coal Company, Inc.
Such guaranty shall be in the form attached hereto as Exhibit A.
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SECTION 2. Ratification.
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Except as expressly supplemented hereby, all of the provisions of the
Indenture are hereby ratified and confirmed as in full force and effect.
SECTION 3. Governing Law.
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This First Supplemental Indenture shall be governed by and construed in
accordance with the laws of the state of New York, as applied to contracts made
and performed within the state of New York, without regard to principles of
conflicts of law.
SECTION 4. Counterparts.
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This instrument may be executed in one or more counterparts, each of which
so executed shall be deemed to be an original, but all of which shall together
constitute but one and the same instrument.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
First Supplemental Indenture as of the day and year first above written.
Attest: XXXXXX ENERGY COMPANY
_____________________________
Its: By: _____________________________
Its:_____________________________
BANKERS TRUST COMPANY, as Trustee
Attest:
_____________________________ By: _____________________________
Its: Its:_____________________________
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Exhibit A
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Form of Guaranty
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[attached]
GUARANTY
THIS GUARANTY, dated as of the 9/th/ day of February, 2001, by A.T. Xxxxxx
Coal Company, Inc., a Virginia corporation (the "Guarantor"), to BANKERS TRUST
COMPANY, a New York banking corporation in its capacity as Trustee under the
Indenture, as defined below (the "Trustee"), for the benefit of the holders of
the Securities, as defined below (collectively, the "Securityholders"), recites
and provides as follows:
WHEREAS, the Trustee and Fluor Corporation, a Delaware corporation now
known as Xxxxxx Energy Company (the "Company"), are parties to that certain
Indenture, dated as of February 18, 1997 (as amended by that certain First
Supplemental Indenture, dated as of the date hereof, the "Indenture"), providing
for the issuance by the Company, from time to time, of certain unsecured debt
securities described therein (the "Securities");
WHEREAS, the Company owns all of the outstanding shares of the capital
stock of the Guarantor and the Guarantor has derived, and will in the future
derive, substantial direct and indirect benefits as a result of the borrowings
evidenced by the Securities; and
WHEREAS, the Guarantor desires to guarantee all of the Company's payment
obligations with respect to the Securities issued under the Indenture under the
terms and conditions set forth below;
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged, the Guarantor hereby agrees as follows:
Section 1. Unconditional Guaranty. The Guarantor hereby unconditionally and
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irrevocably guarantees to the Trustee, for the equal and ratable benefit of the
Securityholders, the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all payment obligations of the Company now or
hereafter existing with respect to the Securities issued and to be issued under
the Indenture, whether for principal, interest, premium (if any), fees, expenses
or otherwise (collectively, the "Obligations"). Without limiting the generality
of the foregoing, the Guarantor's liability shall extend to all amounts that
constitute part of the Obligations and would be owed by the Company to the
Securityholders but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Company. The Guarantor's obligations under this guaranty shall
continue until this guaranty is terminated in accordance with Section 6 hereof.
Section 2. Guaranty Absolute. The Guarantor guarantees that the Obligations
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will be paid strictly in accordance with the terms of the Indenture, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Securityholders. The
obligations of the Guarantor under this guaranty are independent of the
Obligations, and a separate action or actions may be brought and prosecuted
against the Guarantor to enforce this guaranty, irrespective of whether any
action is brought against the Company or whether the Company is joined in any
such action or actions. The liability of the Guarantor under this guaranty shall
be irrevocable, absolute and unconditional, irrespective of,
and the Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of the Indenture, the
Securities or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from the Indenture;
(c) any taking, exchange, release or non-perfection of any collateral or
any taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Obligations;
(d) any change, restructuring or termination of the corporate structure or
existence of the Company; or
(e) any other circumstance (including, without limitation, any statute of
limitations to the fullest extent permitted by applicable law), which
might otherwise constitute a defense available to, or a discharge of,
the Guarantor, the Company or a guarantor.
This guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by the Trustee or any of the Securityholders upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, all as
though such payment had not been made.
Section 3. Waivers. (f) The Guarantor hereby expressly waives promptness,
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diligence, notice of acceptance, presentment, demand for payment, protest, any
requirement that any right or power be exhausted or any action be taken against
the Company or against any other guarantor of all or any portion of the
Obligations, and all other notices and demands whatsoever. Without limitation,
the Guarantor waives the provisions of Sections 49-25 and 49-26 of the Virginia
Code, as amended, relating to the rights of a guarantor to require a creditor to
xxx and the effect of failure of a creditor to act thereon.
(a) The Guarantor hereby waives any right to revoke this guaranty, and
acknowledges that this guaranty is continuing in nature and applies to
all Obligations, whether existing now or in the future.
(b) The Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated in the
Indenture and that the waivers set forth in this guaranty are
knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor will not exercise any rights
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that it may now or hereafter acquire against the Company or any other insider
guarantor that arise from the
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existence, payment, performance or enforcement of the Obligations under the
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Trustee against the Company or any
other insider guarantor or any collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company or any other
insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Obligations and all other amounts
payable under this guaranty shall have been paid in full in cash. If any amount
shall be paid to the Guarantor in violation of the preceding sentence at any
time prior to the termination of this guaranty pursuant to Section 6 hereof,
such amount shall be held in trust for the benefit of the Trustee and the
Securityholders and shall forthwith be paid to the Trustee to be credited and
applied to the Obligations and all other amounts payable under this guaranty,
whether matured or unmatured, or to be held as collateral for any Obligations or
other amounts payable under this guaranty thereafter arising. The Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Indenture and that the waiver set
forth in this section is knowingly made in contemplation on such benefits.
Section 5. Successors and Assigns. This guaranty is a continuing guaranty
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and shall (i) be binding upon the Guarantor, its successors and assigns, (ii)
inure to the benefit of the Trustee on behalf of the Securityholders and be
enforceable by the Trustee, and its successors, on behalf of the
Securityholders, and (iii) be reinstated if at any time any payment to the
Trustee or a Securityholder hereunder is required to be restored by such Trustee
or a Securityholder.
Section 6. Termination. Any term or provision of this guaranty to the
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contrary notwithstanding, this guaranty shall remain in full force and effect
until the first to occur of (i) payment in full of the Obligations and all other
amounts payable under this guaranty (subject, however, to reinstatment as
provided in Sections 2 and 5 hereof), and (ii) the Termination Date. For the
purposes of this Section 6, the "Termination Date" refers to the date upon which
all of the Guarantor's obligations as a guarantor of the Company's obligations
under that certain three-year Credit Agreement, dated as of November 30, 2000,
among the Company, as borrower, the Guarantor, the lenders party thereto (the
"Lenders"), Citibank, N.A., as administrative agent for the Lenders, PNC Bank,
National Association, as Syndication Agent, and First Union National Bank, as
Documentation Agent, and any other bank credit facility guaranteed by the
Guarantor which would constitute Funded Debt (as such term is defined in Section
1.02 of the Indenture) of the Company under generally accepted accounting
principles, shall have terminated in accordance with such credit agreement or
other credit facility.
Section 7. Limitation of Guaranty. Any term or provision of this guaranty
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to the contrary notwithstanding, the maximum aggregate amount of the Obligations
for which the Guarantor shall be liable shall not exceed the maximum amount for
which the Guarantor can be liable without rendering this guaranty subject to
avoidance under applicable law relating to fraudulent conveyance or fraudulent
transfer (including section 548 of the Bankruptcy Code or any applicable
provisions of comparable state law) (collectively, "Fraudulent Transfer Laws"),
in each case after giving effect (a) to all other liabilities of the Guarantor,
contingent or
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otherwise, that are relevant under such Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of the Guarantor in respect of intercompany
debt to the Company to the extent that such debt would be discharged in an
amount equal to the amount paid by the Guarantor hereunder) and (b) to the value
as assets of the Guarantor (as determined under the applicable provisions of
such Fraudulent Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights held by the Guarantor pursuant to (i)
applicable law or (ii) any agreement, if any, providing for an equitable
allocation among the Guarantor and other subsidiaries or affiliates of the
Company of obligations arising under this guaranty or other guaranties of the
Obligations by such parties.
SECTION 8. Notices. All notices and other communications in connection
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herewith shall be in writing and shall be deemed to have been duly given if sent
by receipted overnight courier, or mailed, postage prepaid, registered or
certified mail, to the following addresses or at such other addresses as the
parties hereto may designate from time to time in writing:
If to the Guarantor:
Xxxxxx Energy Company
0 Xxxxx 0/xx/ Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: President and General Counsel
If to the Trustee:
Corporate Trust Office
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Section 9. Governing Law. This guaranty shall be governed by, and construed
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and enforced in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this guaranty to be executed
by its duly authorized representative.
A.T. Xxxxxx Coal Company, Inc.
By: ____________________________________
Its: ___________________________________
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