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FORM OF
AEI RESOURCES LLC
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$450,000,000
11 3/4% SENIOR SECURED NOTES DUE 2009
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GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
THE GUARANTORS SIGNATORY HERETO
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INDENTURE
DATED AS OF ____________ __, 2002
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XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION AS TRUSTEE
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.................................................1
Section 1.01. Definitions...........................................................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act....................................15
Section 1.03. Rules of Construction................................................................16
ARTICLE 2 THE NOTES.................................................................................16
Section 2.01. Form and Dating......................................................................16
Section 2.02. Execution and Authentication.........................................................17
Section 2.03. Registrar and Paying Agent...........................................................17
Section 2.04. Paying Agent to Hold Money in Trust..................................................17
Section 2.05. Holder Lists.........................................................................18
Section 2.06. Transfer and Exchange................................................................18
Section 2.07. Replacement Notes....................................................................21
Section 2.08. Outstanding Notes....................................................................21
Section 2.09. Treasury Notes.......................................................................22
Section 2.10. Temporary Notes......................................................................22
Section 2.11. Cancellation.........................................................................22
Section 2.12. Defaulted Interest...................................................................22
Section 2.13. Record Date..........................................................................22
Section 2.14. Computation of Interest..............................................................23
Section 2.15. CUSIP Number.........................................................................23
ARTICLE 3 REDEMPTION AND PREPAYMENT.................................................................23
Section 3.01. Notices to Trustee...................................................................23
Section 3.02. Selection of Notes to be Redeemed or Purchased.......................................23
Section 3.03. Notice of Redemption.................................................................24
Section 3.04. Effect of Notice of Redemption.......................................................24
Section 3.05. Deposit of Redemption or Purchase Price..............................................24
Section 3.06. Notes Redeemed in Part...............................................................25
Section 3.07. Optional Redemption..................................................................25
Section 3.08. Mandatory Redemption.................................................................26
Section 3.09. Asset Sale Offer by Application of Excess Proceeds...................................26
ARTICLE 4 COVENANTS.................................................................................27
Section 4.01. Payment of Notes.....................................................................27
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.02. Maintenance of Office or Agency......................................................28
Section 4.03. Reports..............................................................................28
Section 4.04. Compliance Certificate...............................................................29
Section 4.05. Taxes................................................................................29
Section 4.06. Stay, Extension and Usury Laws.......................................................29
Section 4.07. Restricted Payments..................................................................30
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.......................31
Section 4.09. Incurrence of Indebtedness and Issuance of Disqualified Stock........................32
Section 4.10. Change of Control....................................................................32
Section 4.11. Asset Sales..........................................................................33
Section 4.12. Liens................................................................................34
Section 4.13. Transactions with Affiliates.........................................................34
Section 4.14. Limitation on Layering...............................................................35
Section 4.15. Business Activities..................................................................35
Section 4.16. Limitations on Preferred Stock or Preferred Equity Interests of Subsidiaries.........35
Section 4.17. Limitation on Sale and Lease-Back Transactions.......................................35
Section 4.18. Payments for Consent.................................................................36
Section 4.19. Corporate Existence..................................................................36
Section 4.20. Additional Note Guarantees...........................................................36
Section 4.21. Security Documents...................................................................37
ARTICLE 5 SUCCESSORS................................................................................37
Section 5.01. Merger, Consolidation or Sale of Assets..............................................37
Section 5.02. Successor Corporation Substituted....................................................37
ARTICLE 6 DEFAULTS AND REMEDIES.....................................................................38
Section 6.01. Events of Default....................................................................38
Section 6.02. Acceleration.........................................................................39
Section 6.03. Other Remedies.......................................................................40
Section 6.04. Waiver of Past Defaults..............................................................40
Section 6.05. Control by Majority..................................................................40
Section 6.06. Limitation on Suits..................................................................41
Section 6.07. Rights of Holders of Notes to Receive Payment........................................41
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TABLE OF CONTENTS
(CONTINUED
PAGE
Section 6.08. Collection Suit by Trustee...........................................................41
Section 6.09. Trustee May File Proofs of Claim.....................................................41
Section 6.10. Priorities...........................................................................42
Section 6.11. Undertaking for Costs................................................................42
ARTICLE 7 TRUSTEE...................................................................................43
Section 7.01. Duties of Trustee....................................................................43
Section 7.02. Rights of Trustee....................................................................44
Section 7.03. Individual Rights of Trustee.........................................................44
Section 7.04. Trustee's Disclaimer.................................................................44
Section 7.05. Notice of Defaults...................................................................45
Section 7.06. Reports by Trustee to Holders of the Notes...........................................45
Section 7.07. Compensation and Indemnity...........................................................45
Section 7.08. Replacement of Trustee...............................................................46
Section 7.09. Successor Trustee by Merger, etc.....................................................47
Section 7.10. Eligibility; Disqualification........................................................47
Section 7.11. Preferential Collection of Claims Against The Company................................47
ARTICLE 8 AMENDMENT, SUPPLEMENT AND WAIVER..........................................................47
Section 8.01. Without Consent of Holders of the Notes..............................................47
Section 8.02. With Consent of Holders of Notes.....................................................48
Section 8.03. Compliance with Trust Indenture Act..................................................49
Section 8.04. Revocation and Effect of Consents....................................................49
Section 8.05. Notation on or Exchange of Notes.....................................................50
Section 8.06. Trustee to Sign Amendments, etc......................................................50
ARTICLE 9 COLLATERAL AND SECURITY...................................................................50
Section 9.01. Security Documents...................................................................50
Section 9.02. Recording and Opinions...............................................................51
Section 9.03. Release of Collateral................................................................51
Section 9.04. Certificates of the Company..........................................................52
Section 9.05. Certificates of the Trustee..........................................................52
Section 9.06. Authorization of Actions to Be Taken by the Trustee Under the Security
Documents............................................................................52
Section 9.07. Authorization of Receipt of Funds by the Trustee Under the Security Documents........52
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TABLE OF CONTENTS
(CONTINUED
PAGE
Section 9.08. Termination of Security Interest.....................................................52
ARTICLE 10 NOTE GUARANTEES...........................................................................53
Section 10.01. Guarantee............................................................................53
Section 10.02. Limitation on Guarantor Liability....................................................54
Section 10.03. Execution and Delivery of Note Guarantee.............................................54
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms...................................54
Section 10.05. Releases Following Sale of Assets....................................................55
ARTICLE 11 SATISFACTION AND DISCHARGE................................................................56
Section 11.01. Satisfaction and Discharge...........................................................56
Section 11.02. Application of Trust Money...........................................................56
ARTICLE 13 MISCELLANEOUS.............................................................................60
Section 13.01. Trust Indenture Act Controls.........................................................60
Section 13.02. Notices..............................................................................60
Section 13.03. Communication by Holders of Notes with Other Holders of Notes........................61
Section 13.04. Certificate and Opinion as to Conditions Precedent...................................61
Section 13.05. Statements Required in Certificate or Opinion........................................62
Section 13.06. Rules by Trustee and Agents..........................................................62
Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders.............62
Section 13.08. Governing Law........................................................................62
Section 13.09. No Adverse Interpretation of Other Agreements........................................62
Section 13.10. Successors...........................................................................63
Section 13.11. Severability.........................................................................63
Section 13.12. Counterpart Originals................................................................63
Section 13.13. Table of Contents, Headings, etc.....................................................63
Section 13.14. No Waiver; Remedies..................................................................63
Section 13.15. Binding Effect.......................................................................63
Section 13.16. Entire Agreement.....................................................................63
iv
INDENTURE, dated as of ____________ __, 2002, among AEI
RESOURCES LLC, a Delaware corporation (the "COMPANY"), the GUARANTORS listed on
the signature pages hereto (the "GUARANTORS") and XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee (the "TRUSTEE").
The Company and the Trustee agree as follows for the equal and
ratable benefit of the holders of the 11 3/4% Senior Secured Notes due 2009 (the
"NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person
existing at the time such Person becomes a Subsidiary or assumed in connection
with an Asset Acquisition from such Person.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"CONTROL" (including, with correlative meanings, the terms "CONTROLLING,"
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; PROVIDED
THAT beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depositary that apply to such transfer and exchange.
"ASSET ACQUISITION" means (a) an Investment by the Company or
any Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company, or shall be merged with or into the
Company or any Subsidiary of the Company, (b) the acquisition by the Company or
any Subsidiary of the Company of the assets of any Person (other than a
Subsidiary of the Company) which constitute all or substantially all of the
assets of such Person or (c) the acquisition by the Company or any Subsidiary of
the Company of any division or line of business of any Person (other than a
Subsidiary of the Company).
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than sales of coal in the ordinary course of business
consistent with past practices (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole will be governed by the provisions of this
Indenture in Section 4.10 hereof and/or the provisions in Article 5 hereof and
not by the provisions of Section 4.11 hereof), and (ii) the issue or sale by the
Company or any of its Subsidiaries of Equity Interests of any of the Company's
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value (as determined in good faith by the Board of Directors) in excess of $1.0
million or (b) for net proceeds in excess of $1.0 million. Notwithstanding the
foregoing, the following items shall not be deemed to be Asset Sales: (i) a
transfer of assets by the Company to a Guarantor or by a Guarantor to
the Company or to another Guarantor, (ii) an issuance of Equity Interests by a
Guarantor to the Company or to another Guarantor, and (iii) a Restricted Payment
that is permitted by Section 4.07 hereof.
"ATTRIBUTABLE INDEBTEDNESS" when used with respect to any
Sale-Lease-Back Transaction means, as at the time of determination, the present
value (discounted at a rate equivalent to the interest rate implicit in the
lease, compounded on a semi-annual basis) of the total obligations of the lessee
for rental payments (after excluding all amounts required to be paid on account
of maintenance and repairs, insurance, taxes, utilities and other similar
expenses payable by the lessee pursuant to the terms of the lease) during the
remaining term of the lease included in any such Sale and Lease-Back Transaction
or such operating lease or until the earliest date on which the lessee may
terminate such lease without penalty or upon payment of a penalty (in which case
the rental payments shall include such penalty); PROVIDED, THAT the Attributable
Indebtedness with respect to a Sale and Lease-Back Transaction shall be no less
than the fair market value (as determined reasonably and in good faith by the
Board of Directors of the Person incurring the Attributable Indebtedness) of the
property subject to such Sale and Lease-Back Transaction.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the Board of Directors of the
Person or any authorized committee of the Board of Directors, except that for
the purposes of the definitions of the terms "CHANGE OF CONTROL" and "CONTINUING
DIRECTORS," the term "BOARD OF DIRECTORS" shall mean the entire Board of
Directors of the Company and not any authorized committee of the Board of
Directors.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL EXPENDITURES" means, with respect to any Person for
any period, the aggregate of amounts that would be reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person and
its Subsidiaries prepared in conformity with GAAP, excluding interest
capitalized during construction.
"CAPITAL INTERESTS" means:
(i) in the case of a corporation, corporate stock;
(ii) in the case of an association or other business entity,
any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(iii) in the case of a partnership, partnership interests
(whether general or limited); and
(iv) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CAPITAL LEASE" means, with respect to any Person, any lease
of property by such Person as lessee which would be accounted for as a capital
lease on a balance sheet of such Person prepared in conformity with GAAP.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person,
the capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
2
"CASH EQUIVALENTS" means: (i) United States dollars; (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than one year from the date of acquisition; (iii) certificates of
deposit and Eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year and overnight bank deposits or demand deposits, in each case with any
lender party to any Credit Facility or with any domestic commercial bank having
capital and surplus in excess of $1.0 billion; (iv) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above; (v)
commercial paper having the highest rating obtainable from Xxxxx'x Investors
Service, Inc. or Standard & Poor's Ratings Service, a division of the
XxXxxx-Xxxx Companies, Inc., and in each case maturing within one year after the
date of acquisition; and (vi) investments in money market funds all of whose
assets comprise securities of the types described in clauses (i), (ii) and (iii)
above.
"CASH INTEREST EXPENSE" means, with respect to any Person for
any period, the Interest Expense of such Person for such period LESS the
Non-Cash Interest Expense of such Person for such period.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole to any "PERSON" (as such term is used in Section
13(d)(3) of the Exchange Act) (other than the Principals or their Related
Parties); (ii) the adoption of a plan relating to the liquidation or dissolution
of the Company; (iii) the consummation of any transaction or series of
transactions (including, without limitation, any merger or consolidation) the
result of which is that any Person (other than the Principals and their Related
Parties), becomes the "BENEFICIAL OWNER" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly, of [ ]% or more
of the voting Capital Interests of the Company or (iv) the first day on which a
majority of the members of the Board of Directors are not Continuing Directors.
For purposes of this definition, any transfer of any Equity Interest of a Person
that is formed for the purpose of acquiring voting Capital Interests of the
Company shall, upon such acquisitions, be deemed to be a transfer of such
portion of such voting Capital Interests of the Company as corresponds to the
portion of the Capital Interests of such that has been so transferred.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall mean any assets of the Company defined as
Collateral in the Security Agreement.
"COLLATERAL AGENT" shall mean ______________, as Collateral
Agent, until a successor replaces it in accordance with the applicable
provisions of this Indenture, and thereafter means the successor.
"COMMISSION" means the Securities and Exchange Commission.
"CONSOLIDATED FIXED CHARGES" with respect to any Person for
any period, means the sum (without duplication) of (a) Consolidated Interest
Expense of such Person and any of its Subsidiaries for such period, PLUS (b)
payments of cash income taxes made by such Person and any of its Subsidiaries on
a consolidated basis in respect of such period, PLUS (c) regularly scheduled
payments made in cash during such period on account of principal of Indebtedness
of such Person and any of its Subsidiaries, PLUS (d) cash reclamation costs paid
by such Person and any of its Subsidiaries during such period, PLUS (e) cash
employee liability costs paid by such Person and any of its Subsidiaries during
such period.
3
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" with respect to any
Person for any period, means the ratio of (a) EBITDA of such Person for such
period MINUS Capital Expenditures of such Person for such period to (b)
Consolidated Fixed Charges of such Person for such period.
"CONSOLIDATED INTEREST EXPENSE" with respect to any Person for
any period, means total Cash Interest Expense (including that attributable to
Capital Lease Obligations) of such Person and its Subsidiaries for such period
with respect to all outstanding Indebtedness of such Person and its Subsidiaries
(including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Protection Agreements to the extent such net
costs are allocable to such period in accordance with GAAP).
"CONSOLIDATED NET INCOME" means [to be determined].
"CONTAMINANT" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"CONTINUING DIRECTORS" means, as of any date of determination,
any member of the Board of Directors who (i) was a member of such Board of
Directors on the date of this Indenture or (ii) was nominated for election or
elected to such Board of Directors with the approval of (a) a majority of the
Principals who were beneficial owners of voting Capital Interests of the Company
at the time of such nomination or election or (b) a majority of the Continuing
Directors who were members of such Board of Directors at the time of such
nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the
address of the Trustee specified in SECTION 13.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"CREDIT FACILITY" means any credit facility entered into by
and among the Company, any guarantor and the lenders party thereto, including
any credit agreement, related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, restated, modified, renewed, refunded, extended, replaced or refinanced
from time to time.
"DEFAULT" means any event that is or with the passage of time
or the giving of notice or both would constitute an Event of Default.
"DEFINITIVE NOTES" means Notes that are in the form of Exhibit
A attached hereto.
"DEPOSITARY" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in SECTION 2.03
hereof as the Depositary with respect to the Notes, until a successor shall have
been appointed and become such pursuant to the applicable provisions of this
Indenture, and, thereafter, "DEPOSITARY" shall mean or include such successor.
"DISQUALIFIED STOCK" means any Equity Interest that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the Equity
Interest), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder of the Equity Interest, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes mature.
4
"EBITDA" means [to be determined].
"ENVIRONMENTAL LAWS" means all applicable Requirements of Law
now or hereafter in effect, as amended or supplemented from time to time,
relating to pollution or the regulation and protection of human health, safety,
the environment or natural resources, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 X.X.X.xx. 9601
ET SEQ.); the Hazardous Material Transportation Act, as amended (49 X.X.X.xx.
180 ET SEQ.); the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended (7 X.X.X.xx. 136 ET SEQ.); the Resource Conservation and Recovery Act,
as amended (42 U.S.C. ss. 6901 ET SEQ.); the Toxic Substance Control Act, as
amended (42 X.X.X.xx. 7401 ET SEQ.); the Clean Air Act, as amended (42 X.X.X.xx.
740 ET SEQ.); the Federal Water Pollution Control Act, as amended (33 X.X.X.xx.
1251 ET SEQ.); the Occupational Safety and Health Act, as amended (29 X.X.X.xx.
651 ET SEQ.); the Safe Drinking Water Act, as amended (42 X.X.X.xx. 300f ET
SEQ.); and their state and local counterparts or equivalents and any transfer of
ownership notification or approval statute, including the Industrial Site
Recovery Act (N.J. Stat. Xxx.xx. 13:1K-6 ET SEQ.).
"ENVIRONMENTAL LIABILITIES AND COSTS" means, with respect to
any Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute, including any thereof arising under
any Environmental Law, Permit, order or agreement with any Governmental
Authority or other Person, which relate to any environmental, health or safety
condition or a Release or threatened Release, and result from the past, present
or future operations of, or ownership of property by, such Person or any of its
Subsidiaries.
"EQUITY INTERESTS" means Capital Interests and all warrants,
options or other rights to acquire Capital Interests (but excluding any debt
security that is convertible into, or exchangeable for, Capital Interests).
"ERISA" means the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto), as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries within the meaning of section 414 (b), (c),
(m) or (o) of the Code.
"ERISA EVENT" means (a) a reportable event described in
section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with
respect to a Title IV Plan or a Multiemployer Plan; (b) the withdrawal of the
Company, any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan
subject to section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in section 4001(a)(2) of ERISA; (c) the
complete or partial withdrawal of the Company, any of its Subsidiaries or any
ERISA Affiliate from any Multiemployer Plan; (d) notice of reorganization or
insolvency of a Multiemployer Plan; (e) the filing of a notice of intent to
terminate a Title IV Plan or the treatment of a plan amendment as a termination
under section 4041 of ERISA; (f) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC; (g) the failure to make any
required contribution to a Title IV Plan or Multiemployer Plan; (h) the
imposition of a Lien under section 412 of the Code or section 302 of ERISA on
the Company or any of its Subsidiaries or any ERISA Affiliate; or (i) any other
event or condition which might reasonably be expected to constitute grounds
under section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Title IV Plan or
5
Multiemployer Plan or the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under section 4007 of ERISA.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXISTING INDEBTEDNESS" means all Indebtedness of the Company
and its Subsidiaries in existence on the date of this Indenture, to the extent
that such amounts have not been repaid.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date of this Indenture.
"GLOBAL NOTE" means, individually, each Note evidencing all or
a part of the Notes to and registered in the name of the Depositary, in the form
attached hereto as Exhibit A.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"GOVERNMENTAL AUTHORITY" means any nation, sovereign or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"GUARANTORS" means (i) the guarantors listed on the signature
pages hereto, and (ii) any Subsidiary of the Company that executes a Note
Guarantee in accordance with the provisions of this Indenture, and its
respective successors and assigns.
"GUARANTOR SENIOR INDEBTEDNESS" means any Indebtedness
permitted to be incurred by any Guarantor under the terms of this Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is subordinated in right of payment to such Guarantor's Note
Guarantee. Notwithstanding the foregoing, Guarantor Senior Indebtedness shall
not include:
(i) any Obligation of such Guarantor to any Subsidiary of such
Guarantor;
(ii) any liability for federal, state, local or other taxes
owed or owing by such Guarantor;
(iii) any accounts payable or other liability to trade
creditors arising in the ordinary course of business of the Guarantor (including
Guarantees thereof or instruments evidencing such liabilities);
(iv) any Indebtedness, Guarantee or Obligation of the
Guarantor that is contractually subordinated or junior in any respect to any
other Indebtedness, Guarantee or Obligation of such Guarantor; or
6
(v) any Indebtedness incurred in violation of this Indenture.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under:
(i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements;
(ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates; and
(iii) agreements entered into for the purpose of fixing or
hedging the risks associated with fluctuations in foreign currency exchange
rates.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent:
(i) in respect of borrowed money;
(ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof);
(iii) in respect of banker's acceptances;
(iv) representing Capital Lease Obligations; and
(v) the balance deferred and unpaid of the purchase price of
any property or representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability on a
balance sheet of such Person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a Lien on any asset of such Person (whether or
not such indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee by such Person of any indebtedness of any
other Person. For purposes of this definition, any of the foregoing that
constitutes obligations in respect of reclamation, workers' compensation,
including black lung, pensions and retiree health care, shall not be deemed
indebtedness.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time.
"INDIRECT PARTICIPANT" means a Person who holds an interest
through a Participant.
"INTEREST EXPENSE" means, for any Person for any period, (a)
total interest expense of such Person and its Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP and including, in any
event, interest capitalized during construction for such period and net costs
under interest rate contracts for such period MINUS (b) the sum of (i) net gains
of such Person and its Subsidiaries under interest rate contracts for such
period determined on a consolidated basis in conformity with GAAP PLUS (ii) any
interest income of such Person and its Subsidiaries for such period determined
on a consolidated basis in conformity with GAAP.
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"INVESTMENTS" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including Guarantees of Indebtedness or other
obligations but excluding advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of such
Person or its Subsidiaries in accordance with GAAP), advances or capital
contributions (excluding commission, travel expenses and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration consisting of Indebtedness, Equity
Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the city in which the principal
office of the Trustee is located or at a place of payment are required or
permitted by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment shall be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue on such payment for the intervening period.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or the performance of any other
obligation, including any conditional sale or other title retention agreement,
the interest of a lessor under a Capital Lease, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction naming the owner of the asset to which such Lien relates as
debtor.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
section 4001(a)(3) of ERISA, to which the Company, any of its Subsidiaries or
any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"NET PROCEEDS" means the aggregate cash proceeds received by
the Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, regulatory compliance costs and sales commissions)
and any relocation expenses incurred as a result thereof, taxes paid or payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or assets that were
the subject of such Asset Sale (but only to the extent any such Lien was
permitted pursuant to this Indenture) and any reserve for adjustment in respect
of the sale price of such asset or assets established in accordance with GAAP.
"NON-CASH INTEREST EXPENSE" means, with respect to any Person
for any period, the sum of the following amounts to the extent included in the
calculation of Interest Expense of such Person for such period: (a) the amount
of debt discount and debt issuances costs amortized, (b) charges relating to
write-ups or write-downs in the book or carrying value of existing Financial
Covenant Debt and (c) interest payable in evidences of Indebtedness or by
addition to the principal of the related Indebtedness.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither
the Company nor any of its Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness) or (b) is directly or indirectly liable as a guarantor or
otherwise; (ii) no default with respect to which would permit upon notice, lapse
of time or both any holder of any other Indebtedness of the Company or any of
its Subsidiaries to declare a default on such
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other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (iii) as to which the lenders have been
notified in writing that they shall not have any recourse to the stock or assets
of the Company or any of its Subsidiaries.
"NOTE CUSTODIAN" means the Trustee, when serving as custodian
for the Depositary with respect to the Notes in global form, or any successor
entity thereto.
"NOTE GUARANTEE" means the Guarantee by each Guarantor of the
Company's payment obligations under this Indenture and on the Notes, executed
pursuant to the provisions of this Indenture.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement,
dated as of the date hereof, by and among the Company, the guarantors party
thereto, the holders, the administrative agent and the arranger and syndication
agent.
"NOTES" has the meaning assigned to it in the preamble to this
Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"OFFICER'S CERTIFICATE" means a certificate signed on behalf
of each Company by an Officer of such Company, who must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of such Company, that meets the requirements of
SECTION 13.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel
reasonably acceptable to the Trustee, that meets the requirements of SECTION
13.05 hereof.
"PARTICIPANT" means, with respect to DTC, a Person who has an
account with DTC.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PERMIT" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"PERMITTED ASSET SALE" means any Asset Sale permitted under
the Note Purchase Agreement or the Revolving Credit Facility (or, in each case,
under the documentation governing any Permitted Refinancing Indebtedness in
respect thereof).
"PERMITTED INDEBTEDNESS" means
(i) Indebtedness of the Company arising under the Note
Purchase Agreement;
(ii) Indebtedness of the Company arising under the Revolving
Credit Facility in an amount not to exceed $[ ] at any time outstanding;
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(iii) Indebtedness of the Company represented by the Notes and
the incurrence by any Guarantor of the Indebtedness represented by its Note
Guarantee;
(iv) Indebtedness existing on the date of this Agreement and
disclosed on SCHEDULE 4.09;
(v) Guaranty Obligations incurred by the Company or any
Guarantor in respect of Indebtedness of the Company or any Guarantor otherwise
permitted by this SECTION 4.09;
(vi) Indebtedness arising from intercompany loans from the
Company to any Guarantor or from any Guarantor to the Company or any other
Guarantor; PROVIDED THAT such Indebtedness permitted pursuant to this CLAUSE(VI)
shall be subordinate to the Indebtedness permitted in accordance with CLAUSES
(I), (II) and (III) hereof;
(vii) Indebtedness arising under any performance or surety
bond entered into in the ordinary course of business;
(viii) Indebtedness in respect of Capital Leases which involve
payments not exceeding $[ ] per annum; and
(ix) Permitted Refinancing Indebtedness.
"PERMITTED INVESTMENTS" means
(i) any Investments in the Company or in a [wholly-owned]
Subsidiary of the Company that is engaged in the same or a similar or related
line of business as the Company and its Subsidiaries are permitted to engage in
pursuant to SECTION 4.16;
(ii) any Investments in Cash Equivalents;
(iii) Investments by the Company or any Subsidiary of the
Company in a Person, if as a result of such Investment (i) such Person becomes a
[wholly-owned] Subsidiary of the Company that is engaged in the same or a
similar or related line of business as the Company and its Subsidiaries are
permitted to engage in pursuant to SECTION 4.16 or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Subsidiary of the
Company that is engaged in the same or a similar or related line of business as
the Company and its Subsidiaries are permitted to engage in pursuant to SECTION
4.16;
(iv) Investments made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with SECTION 4.11;
(v) Investments in endorsements of negotiable instruments and
similar negotiable documents in the ordinary course of business;
(vi) Investments existing on the date of this Indenture;
(vii) Investments in obligations of account debtors to the
Company or any of its Subsidiaries and stock or obligations issued to the
Company or any such Subsidiary by any Person, in each case, in connection with
the insolvency, bankruptcy, receivership or reorganization of such Person or a
composition or readjustment of such Person's Indebtedness; and
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(viii) other Investments in any one or more Persons that do
not exceed $[ ] million in the aggregate at any time outstanding.
"PERMITTED LIENS" means
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained to the
extent required by GAAP;
(b) Liens of landlords arising by statute and Liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other
Liens imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(c) pledges or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment insurance or
other types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed money) and
surety, appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar encumbrances on the use of Real Property
which do not materially detract from the value of such Real Property or
interfere with the ordinary conduct of the business conducted and proposed to be
conducted at such Real Property;
(e) encumbrances arising under leases or subleases of Real
Property which do not in the aggregate materially detract from the value of such
Real Property or interfere with the ordinary conduct of the business conducted
and proposed to be conducted at such Real Property;
(f) financing statements of a lessor's rights in and to
personal property leased to such Person in the ordinary course of such Person's
business;
(g) encumbrances typically found on Real Property used for
mining purposes in the applicable jurisdiction in which the applicable Real
Property is located to the extent such encumbrances would be permitted or
granted by a prudent operator of mining property similar in use and
configuration to such Real Property;
(h) royalty and other payment obligations to sellers or
transferors of fee coal or lease properties to the extent such obligations
constitute a Lien not yet delinquent;
(i) rights of others subjacent or lateral support and absence
of subsidence rights;
(j) rights of repurchase or reversion when mining and
reclamation are completed;
(k) judgment or judicial attachment Liens (including
prejudgment attachment) in existence less than 45 days after the entry thereof
or the enforcement of which is effectively stayed or payment of which is covered
in full by insurance or which do not otherwise result in an Event of Default;
(l) Liens securing capital leases solely on property subject
to such capital leases; and
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(m) Liens arising out of consignment or similar arrangements
for the sale of goods entered into by the Company or any of its Subsidiaries in
the ordinary course of business.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of
the Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used or are to be used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Company or any of its
Subsidiaries; PROVIDED that:
(i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (PLUS the amount
of accrued and unpaid interest, redemption premiums and other reasonable
expenses incurred in connection therewith);
(ii) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes
or the Note Guarantees, such Permitted Refinancing Indebtedness is subordinated
in right of payment to the Notes or the Note Guarantees, as applicable, on terms
at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
(iv) such Indebtedness is incurred either by the Company or by
the Subsidiary that is the obligor in respect of the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
limited liability company or any other entity.
"PRINCIPALS" means [ ].
"PROPERTY" or "PROPERTY" of any Person means all types of
real, personal, tangible, intangible or mixed property owned by such Person
whether or not included in the most recent consolidated balance sheet of such
Person and its Subsidiaries under GAAP.
"REAL PROPERTY" means all of those plots, pieces or parcels of
land now owned, leased or hereafter acquired or leased by the Company or any of
its Subsidiaries (the "LAND"), together with the right, title and interest of
the Company, if any, in and to the streets, the land lying in the bed of any
streets, roads or avenues, opened or proposed, in front of, the air space and
development rights pertaining to the Land and the right to use such air space
and development rights, all rights of way, privileges, liberties, tenements,
hereditaments and appurtenances belonging or in any way appertaining thereto,
all fixtures, all easements now or hereafter benefiting the Land and all
royalties and rights appertaining to the use and enjoyment of the Land,
including all alley, vault, drainage, mineral, water, oil and gas rights,
together with all of the buildings and other improvements now or hereafter
erected on the Land, and any fixtures appurtenant thereto.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date hereof, by and among the Company, the Guarantors
and the holders named therein, as such agreement may be amended, modified or
supplemented from time to time, relating to rights given by the
12
Company and the Guarantors to the holders named therein to register the Notes
and the Note Guarantees under the Securities Act.
"RELEASE" means, with respect to any Person, any release,
spill, emission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration, in each case, of any Contaminant into the
indoor or outdoor environment or into or out of any property owned by such
Person, including the movement of Contaminants through or in the air, soil,
surface water, ground water or property.
"REMEDIAL ACTION" means all actions required to (a) clean up,
remove, treat or in any other way address any Contaminant in the indoor or
outdoor environment, (b) prevent the Release or threat of Release or minimize
the further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform preremedial studies and investigations and
post-remedial monitoring and care.
"REQUIREMENT OF LAW" means, with respect to any Person, the
common law and all federal, state, local and foreign laws, rules and
regulations, orders, judgments, decrees and other legal requirements or
determinations of any Governmental Authority or arbitrator, applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"RESPONSIBLE OFFICER" when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of the Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"RESTRICTED INVESTMENT" means an Investment other than a
Permitted Investment.
"RESTRICTED PAYMENT" has the meaning set forth in SECTION
4.07.
"REVOLVING CREDIT FACILITY" means the Credit Facility in an
aggregate [principal] amount not in excess of [ ] million provided to the
Company under the Credit Agreement, dated as of _______, 2002, by and among the
Company, the guarantors party thereto and the Lenders named therein (as amended
from time to time).
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with
any Person providing for the leasing by the Company or any Subsidiary of the
Company of any real or tangible personal Property, which Property (i) has been
or is to be sold, conveyed or transferred by the Company or such Subsidiary to
such Person in contemplation of such leasing and (ii) would constitute an Asset
Sale if such Property had been sold in an outright sale thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended
and the rules and regulations of the Commission promulgated thereunder.
"SECURITY" means any Capital Interest, Equity Interest, voting
trust certificate, bond, debenture, note or other evidence of Indebtedness,
whether secured, unsecured, convertible or subordinated, or any certificate of
interest, share or participation in, or any temporary or interim certificate for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
13
"SECURITY AGREEMENT" means the Security Agreement dated on or
about the date of this Indenture and substantially in the form attached as
Exhibit __ hereto, as such agreement may be amended, modified or supplemented
from time to time.
"SECURITY DOCUMENTS" means the Security Agreement, any
intellectual property security agreements and other documents and agreements
reasonably required by the Trustee pursuant to which the Collateral shall be
pledged.
"SENIOR INDEBTEDNESS" means any Indebtedness which ranks pari
passu in right of payment with, and which is not expressly by its terms
subordinated in right of payment of principal, interest or premium to the Notes.
"SENIOR REVOLVING DEBT" means revolving credit borrowings
under the Revolving Credit Facility.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness which is
expressly by its terms subordinated in right of payment of principal, interest
or premium, if any, to the Notes.
"SUBSIDIARY" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
total voting power of Capital Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
sections 77aaa - 77bbbb), as amended, as in effect on the date hereof; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "TIA" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"TITLE IV PLAN" means a pension plan, other than a
Multiemployer Plan, which is covered by Title IV of ERISA to which the Company
any of its Subsidiaries or any ERISA Affiliate has any obligation or liability
(contingent or otherwise).
"TRUSTEE" has the meaning as defined in the preamble hereto.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payment of principal, including payment at final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that shall elapse between such date and the making of such payment,
by
(b) the then outstanding principal amount of such
Indebtedness.
Section 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
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"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee; and
"OBLIGOR" on the Notes and the Note Guarantees means the
Company and the Guarantors, respectively, and any successor obligor upon the
Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by the Commission
rule under the TIA have the meanings so assigned to them therein.
Section 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(A) a term has the meaning assigned to it herein;
(B) an accounting term not otherwise defined herein has the
meaning assigned to it in accordance with GAAP;
(C) "or" is not exclusive;
(D) words in the singular include the plural, and in the
plural include the singular;
(E) provisions apply to successive events and transactions;
and
(F) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
Section 2.01. FORM AND DATING.
(a) GENERAL. (i) The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A attached hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes initially shall be issued in denominations of $1,000 and integral
multiples thereof.
(ii) The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provisions of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
15
(b) GLOBAL NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A1 attached hereto (including the Global
Note Legend thereon and the "SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by SECTION 2.06 hereof.
Section 2.02. EXECUTION AND AUTHENTICATION.
(a) An Officer shall sign the Notes for the Company by manual
or facsimile signature. The Company's seal shall be reproduced on the Notes and
may be in facsimile form.
(b) If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid. A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
(c) The Trustee shall, upon a written order of the Company
signed by an Officer ("AUTHENTICATION ORDER") directing the Trustee to
authenticate the Notes, authenticate Notes for original issue up to the
aggregate principal amount stated in paragraph (d) of the Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in SECTION 2.07 hereof.
(d) The Trustee may (at the Company's expense) appoint an
authenticating agent acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
Section 2.03. REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain (i) an office or agency where
Notes may be presented for registration of transfer or for exchange
("REGISTRAR") and (ii) an office or agency where Notes may be presented for
payment ("PAYING AGENT"). The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company may appoint one or more
co-registrars or one or more additional paying agents. The term "PAYING AGENT"
includes any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
16
(c) The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes. The Company initially appoints the Trustee to act as the Registrar
and Paying Agent with respect to the Definitive Notes.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent shall have no further liability for the money. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
Section 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
TIMES as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Company shall otherwise comply with TIA section 312(a).
Section 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee. Upon the occurrence of either of the preceding events in (i) or (ii)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in SECTIONS 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this SECTION 2.06 or SECTION 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this SECTION 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in SECTION 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary in accordance with the provisions
of this Indenture and the Applicable Procedures. Transfers of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
17
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in a Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this SECTION 2.06(B)(I).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL NOTES. In connection with all transfers and exchanges of beneficial
interests that are not subject to SECTION 2.06(B)(I) above, the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to SECTION 2.06(g) hereof.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL
NOTES FOR DEFINITIVE NOTES.
If any holder of a beneficial interest in a Global Note
proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon satisfaction of the conditions set forth
in SECTION 2.06(b)(II) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to
SECTION 2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this SECTION 2.06(c)(IV) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
A Holder of a Definitive Note may exchange such Note for a
beneficial interest in a Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and increase
or cause to be increased the aggregate principal amount of one of the Global
Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with SECTION 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
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(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this SECTION 2.06(E), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this SECTION
2.06(e).
A Holder of Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of a Definitive Note. Upon receipt
of a request to register such a transfer, the Registrar shall register the
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with SECTION 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to SECTIONS 2.10,
3.06, 3.09, 4.10, 4.11 and 9.05 hereof).
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(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under SECTION 3.02 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment
date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of SECTION 2.02 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this SECTION 2.06
to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company and the Trustee may charge for their expenses
in replacing a Note. Every replacement Note shall be an additional obligation of
the Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
Section 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this SECTION 2.08 as not outstanding. Except as set forth in
SECTION 2.09 hereof, a Note shall not cease to be outstanding because the
Company or the Guarantor or an Affiliate of the Company or the Guarantor holds
the Note.
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If a Note is replaced pursuant to SECTION 2.07 hereof, it
shall cease to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note shall be deemed to be paid
under SECTION 4.01 hereof, it shall cease to be outstanding and interest on it
shall cease to accrue.
If the Paying Agent holds, on a redemption date or maturity
date, money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any Guarantor, or by any Affiliate of the Company or any
Guarantor shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes shown on the Trustee's register as
being so owned shall be so disregarded. Notwithstanding the foregoing, Notes
that are to be acquired by the Company or any Guarantor or an Affiliate of the
Company or any Guarantor pursuant to an exchange offer, tender offer or other
agreement shall not be deemed to be owned by such entity until legal title to
such Notes passes to such entity.
Section 2.10. TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of an
Authentication Order. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall upon receipt of an Authentication Order authenticate
Definitive Notes in exchange for temporary Notes. Holders of temporary Notes
shall be entitled to all of the benefits of this Indenture.
Section 2.11. CANCELLATION.
The Company at any time may deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder or which
the Company may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the Trustee. All Notes surrendered for
registration of transfer, exchange or payment, if surrendered to any Person
other than the Trustee, shall be delivered to the Trustee. The Trustee and no
one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. Subject to SECTION 2.07 hereof,
the Company may not issue new Notes to replace Notes that it has redeemed or
paid or that have been delivered to the Trustee for cancellation. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures.
Section 2.12. DEFAULTED INTEREST.
If the Company or any Guarantor defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
PLUS, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, which date shall be
at the earliest practicable date but in all events at least five Business Days
prior to the payment date, in each case at the rate provided in the Notes and in
SECTION 4.01 hereof. The Company shall fix or cause to be fixed each such
special record date and payment date, and shall promptly thereafter, notify the
Trustee of any such date. At least fifteen days before the special record date,
the Company (or the Trustee, in the
21
name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
Section 2.13. RECORD DATE.
The record date for purposes of determining the identity of
Holders of the Notes entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided for in TIA section 316 (c).
Section 2.14. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
Section 2.15. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and
if it does so, the Trustee shall use the CUSIP number in notices of redemption
or exchange as a convenience to Holders; PROVIDED THAT any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. NOTICES TO TRUSTEE.
(a) If the Company elects to redeem Notes pursuant to the
optional redemption provisions of SECTION 3.07 hereof, it shall furnish to the
Trustee, at least 45 days but not more than 60 days before a redemption date, an
Officer's Certificate setting forth (i) the section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption price.
(b) If the Company is required to make an offer to purchase
Notes pursuant to SECTION 4.10 or 4.11 hereof, it shall furnish to the Trustee,
at least 45 days before the scheduled purchase date, an Officer's Certificate
setting forth (i) the section of this Indenture pursuant to which the offer to
purchase shall occur, (ii) the terms of the offer, (iii) the principal amount of
Notes to be purchased, (iv) the purchase price, (v) the purchase date and (vi) a
statement to the effect that (A) the Company or one its Subsidiaries has
affected an Asset Sale and there are Excess Proceeds aggregating more than $[ ]
million or (B) a Change of Control has occurred, as applicable.
Section 3.02. SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
(a) If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes to be redeemed or purchased among the Holders of the Notes in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or in accordance with any other method as the Trustee shall deem
fair and appropriate. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less
22
than 30 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing
of the Notes selected for redemption and, in case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. NOTICE OF REDEMPTION.
(a) Subject to the provisions of SECTION 3.09 hereof, at least
30 days but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
(i) The notice shall identify the Notes to be redeemed and
shall state:
(A) the redemption date;
(B) the redemption price for the Notes, the amount of accrued
interest thereon;
(C) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;
(D) the name and address of the Paying Agent;
(E) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(F) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(G) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed;
and
(H) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
(b) At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense;
PROVIDED, HOWEVER, that the Company shall have delivered to the Trustee, at
least 45 days prior to the redemption date an Officer's Certificate requesting
that the Trustee give such notice and setting forth the information to be stated
in the notice as provided in the preceding paragraph. The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice.
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Section 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with SECTION
3.03 hereof, Notes called for redemption shall become irrevocably due and
payable on the redemption date at the redemption price PLUS accrued and unpaid
interest thereon to such date. A notice of redemption may not be conditional.
Section 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
(a) At or prior to 10:00 a.m., New York City time, on the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued and unpaid
interest on all Notes to be redeemed or purchased on that date. The Trustee or
the Paying Agent shall promptly return to the Company upon its written request
any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of (including any
applicable premium), accrued interest on all Notes to be redeemed or purchased.
(b) If Notes called for redemption or tendered in an Asset
Sale Offer are paid or if the Company has deposited with the Trustee or Paying
Agent money sufficient to pay the redemption or purchase price of, unpaid and
accrued interest on all Notes to be redeemed or purchased, on and after the
redemption or purchase date, interest shall cease to accrue on the Notes or the
portions of Notes called for redemption or tendered and not withdrawn in an
Asset Sale Offer (regardless of whether certificates for such securities are
actually surrendered). If a Note is redeemed or purchased on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal from the redemption or purchase date until
such principal and Liquidated Dames, if any, is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case, at the rate
provided in the Notes and in SECTION 4.01 hereof.
Section 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. OPTIONAL REDEMPTION.
(a) At any time prior to ______ __, 2003,(1) the Company may,
at its option, on any one or more occasions redeem all [or any portion] of the
outstanding aggregate principal amount of Notes at 100% of the aggregate
principal amount PLUS accrued and unpaid interest on the Notes redeemed.
(b) On or after ______ __, 2003,(1) the Company may redeem all
or a part of the Notes upon not less than 30 nor more than 60 days notice, at
the redemption prices (expressed as percentages of principal amount) set forth
below PLUS accrued and unpaid interest on the Notes redeemed, to the applicable
redemption date, if redeemed during the periods beginning on ______ __, 2003(1)
of the years indicated below:
----------------
(1) To be the date which is 12 months after the first issuance of
Notes hereunder. 24
YEAR PERCENTAGE
---- ----------
2003 105.875%
2004 104.40625%
2005 102.9375%
2006 101.46875%
2007 and thereafter 100%
Section 3.08. MANDATORY REDEMPTION.
Except as set forth under SECTIONS 4.10 and 4.11 hereof, and
then only to the extent permitted under the Revolving Credit Facility, the
Company shall not be required or permitted to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09. ASSET SALE OFFER BY APPLICATION OF EXCESS
PROCEEDS.
In the event that, pursuant to SECTION 4.11 hereof, the
Company shall be required to commence an offer to all Holders to purchase Notes
(an "ASSET SALE OFFER"), it shall follow the procedures specified below:
(a) The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "OFFER PERIOD"). No
later than five Business Days after the termination of the Offer Period (the
"PURCHASE DATE"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to SECTION 4.11 hereof (the "OFFER Amount")
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
(b) If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(c) Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice thereof to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to this
SECTION 3.09 and SECTION 4.11 hereof and the length of time the Asset Sale Offer
shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase
Date;
(iii) that any Note not tendered or accepted for payment shall
continue to accrue interest;
25
(iv) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may elect to have Notes purchased in integral multiples of
$1,000 only;
(vi) that Holders electing to have a Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the Note, with the form
entitled "OPTION OF HOLDER TO ELECT PURCHASE" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Notes shall be purchased in
accordance with SECTION 3.02 HEREOF; and
(ix) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
(d) On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary
(PROVIDED, HOWEVER, that portions of Notes selected shall not be in amounts less
than $1,000 or in multiples of $1,000), the Offer Amount of Notes or portions
thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Notes tendered, and shall deliver to the Trustee
an Officer's Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this SECTION
3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase Date) mail
or deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company, shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note (or portion thereof) not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Asset Sale Offer on the Purchase Date.
(e) Other than as specifically provided in this SECTION 3.09,
any purchase pursuant to this SECTION 3.09 shall be made pursuant to the
provisions of SECTIONS 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. PAYMENT OF NOTES.
(a) The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium and
26
interest, shall be considered paid for all purposes hereunder on the date the
Paying Agent, if other than the Company, holds, as of 10:00 a.m. (New York City
time) money deposited by the Company in immediately available funds and
designated for and sufficient to pay all such principal, premium and interest,
then due.
(b) The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 2% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the
rate set forth in the immediately preceding sentence, to the extent lawful.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain in the Borough of Manhattan,
the City of New York an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in accordance with
SECTION 2.03 hereof.
Section 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of
the Commission, so long as any Notes are outstanding, the Company shall furnish
to the Holders of Notes, within the time periods specified in the Commission's
rules and regulations:
(i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such forms, including a "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" and,
with respect to the annual information only, a report on the annual financial
statements by the Company's certified independent accountants; and
(ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file such
reports.
(b) In addition, the Company and the Guarantors have agreed
that, for so long as any Notes remain outstanding, they shall furnish to the
Holders and to securities analysts and prospective
27
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
(c) With respect to any Subsidiaries of the Company that are
not named as Guarantors hereunder, the quarterly and annual financial
information required by the preceding two paragraphs will include a reasonably
detailed presentation, either on the face of the financial statements or in the
footnotes thereto, of the financial condition and results of operations of the
Company and its Subsidiaries separate from the financial condition and results
of operations of any non-Guarantor Subsidiaries.
Section 4.04. COMPLIANCE CERTIFICATE.
(a) The Company and each Guarantor (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officer's Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that, to the best of his or her
knowledge, each entity has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that, to the best of his or her knowledge, no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium or
interest on the Notes is prohibited or if such event has occurred, a description
of the event and what action the Company is taking or proposes to take with
respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, in
connection with the year-end financial statements delivered pursuant to SECTION
4.03(A)(I) hereof, the Company shall use its best efforts to deliver a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article 4 or Article 5 hereof or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officer's Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. TAXES.
The Company shall pay or cause to be paid, and shall cause
each of its Subsidiaries to pay or cause to be paid, prior to delinquency all
material taxes, assessments and governmental levies, except such as are
contested in good faith and by appropriate proceedings (and with respect to
which adequate reserves or other appropriate provisions are being maintained to
the extent required by GAAP) or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
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Section 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenants (to the
extent it they may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and the Company and each of the Guarantors (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that they shall not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on
account of the Company's or any of its Subsidiaries' Equity Interests
(including, without limitation, any such distribution by such Persons in
connection with any merger or consolidation involving the Company) (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or dividends or distributions payable to the Company or
any Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company or any direct or indirect parent of the
Company;
(iii) make any principal payment on, or purchase, redeem,
defease or otherwise acquire or retire for value any Subordinated Indebtedness,
except at scheduled maturity; or
(iv) make any Restricted Investment (all such payments and
other actions set out in this paragraph being collectively referred to as
"RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such
Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence of that Restricted Payment; and
(B) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the most recently ended four fiscal quarters for which
financial statements are available, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage
Ratio test set forth in SECTION 4.09 hereof; and
(C) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Subsidiaries after the
date of this Indenture (excluding Restricted Payments permitted by SECTION
4.07(B)(ii) or (iii)), is less than the sum of:
(1) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first fiscal
quarter commencing after the date of this Indenture to the end of the Company's
most recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit); PLUS
29
(2) 100% of the aggregate net cash proceeds received by the
Company since the date of this Indenture from the issuance or sale of Equity
Interests of the Company or of debt securities of the Company that have been
converted into such Equity Interests (other than Equity Interests (or debt
securities convertible into Equity Interests) sold to a Subsidiary of the
Company and other than Disqualified Stock or debt securities that have been
converted into Disqualified Stock); PLUS
(3) to the extent that any Restricted Investment that was made
after the date of this Indenture is sold for cash or otherwise liquidated or
repaid for cash, the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any).
(b) The preceding provisions shall not prohibit:
(i) the payment of any dividend or distribution within 60 days
after the date of declaration of the dividend, if at the date of declaration the
dividend payment or distribution would have complied with the provisions of this
Indenture;
(ii) the defeasance, redemption or repurchase of Subordinated
Indebtedness with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or the substantially concurrent sale (other than to a
Subsidiary of the Company) of Equity Interests of the Company (other than
Disqualified Stock); PROVIDED THAT the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (C)(2) of the preceding paragraph;
(iii) repurchases of warrants, options or rights to acquire
Capital Interests deemed to occur upon exercise of warrants, options or rights
to acquire Capital Interests if such warrants, options or rights represent a
portion of the exercise price of such warrants, options or rights; and
(iv) so long as the Company or any of its Subsidiaries is not
a corporation for federal income tax purposes, the declaration and payment of
any distribution or dividend by the Company or such Subsidiary in an amount that
would be sufficient (without accounting for any other assets held or owned by
the distributees) to pay all federal, state and local income taxes with respect
to the income derived by the Company or such Subsidiary (including income
derived by the Company or such Subsidiary through other entities that are not
corporations for federal income tax purposes).
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
proposed to be transferred by the Company or such Subsidiary, as the case may
be, pursuant to the Restricted Payment. The fair market value of any assets or
securities that are required to be valued by this SECTION 4.07 shall be
determined by the Board of Directors whose resolution with respect thereto shall
be delivered to the Trustee. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officer's Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this SECTION 4.07 were computed, which
calculations may be based upon the Company's latest available financial
statements.
Section 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary to:
30
(i) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (A) on their Capital Interests or (B) with
respect to any other interest or participation in, or measured by, its profits,
or pay any Indebtedness owed to the Company or any of its Subsidiaries;
(ii) make loans or advances to the Company or any of its
Subsidiaries; or
(iii) transfer any of its properties or assets to the Company
or any of its Subsidiaries.
(b) The preceding restrictions shall not apply to encumbrances
or restrictions existing under or by reason of:
(i) Indebtedness existing on the date of this Indenture;
(ii) the Revolving Credit Facility, provided that any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereto are no more restrictive, taken
as a whole, with respect to such dividend and other payment restrictions than
those contained in the Revolving Credit Facility as in effect on the date of
this Indenture;
(iii) this Indenture and the Guarantees;
(iv) applicable law;
(v) customary non-assignment provisions in leases entered into
in the ordinary course of business and consistent with past practices;
(vi) Capital Lease Obligations, mortgage financings or
purchase money obligations for property acquired in the ordinary course of
business permitted under SECTION 4.09; and
(vii) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any of its Subsidiaries, at the
time of such acquisition and not incurred in contemplation thereof, which
encumbrances or restrictions are not applicable to any Person or the property or
assets of any Person other than such Person or the property or assets of such
Person so acquired.
Section 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
DISQUALIFIED STOCK.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) other than Permitted Indebtedness; PROVIDED, HOWEVER,
that the Company or its Subsidiaries may incur Indebtedness (including Acquired
Indebtedness) if (i) after giving effect on a pro forma basis to the incurrence
of such Indebtedness and to the extent set forth in the definition of
Consolidated Fixed Charge Coverage Ratio the receipt and application of the
proceeds thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the
most recently ended four fiscal quarters preceding the date of such incurrence
would have been at least [___] to 1 and (ii) no Default or Event of Default
shall have occurred and be continuing at the time or as a consequence of the
incurrence of such Indebtedness and (iii) such Indebtedness constitutes
Subordinated Indebtedness.
Section 4.10. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company
shall make an offer (a "CHANGE OF CONTROL Offer") in cash to each Holder to
repurchase all or any part (equal to $1,000 or an
31
integral multiple thereof) of each Holder's Notes at a purchase price equal to
101% of the aggregate principal amount of the Notes or portions of the Notes
validly tendered for payment, PLUS accrued and unpaid interest thereon, to the
date of purchase (the "CHANGE OF CONTROL PAYMENT"). Within 60 days following any
Change of Control, the Company shall mail a notice to each Holder stating: (1)
that the Change of Control Offer is being made pursuant to this SECTION 4.10 and
that all Notes tendered shall be accepted for payment; (2) the purchase price
and the purchase date, which shall be no earlier than 30 days and no later than
60 days from the date such notice is mailed (the "CHANGE OF CONTROL PAYMENT
DATE"); (3) that any Note not tendered shall continue to accrue interest; (4)
that, unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date; (5)
that Holders electing to have any Notes purchased pursuant to a Change of
Control Offer shall be required to surrender the Notes, with the form entitled
"OPTION OF HOLDER TO ELECT PURCHASE" on the reverse of the Notes completed, to
the Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying
Agent receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is withdrawing his
election to have the Notes purchased; and (7) that Holders whose Notes are being
purchased only in part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered, which unpurchased portion must
be equal to $1,000 in principal amount or an integral multiple thereof. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of Notes as a
result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall,
to the extent lawful:
(i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes properly
tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes properly accepted together with an Officer's Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased by the
Company.
(c) The Paying Agent shall promptly mail to each Holder of
Notes properly tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail (or cause to be transferred by
book-entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; PROVIDED THAT each such
new Note shall be in a principal amount of $1,000 or an integral multiple of
$1,000. The Company shall publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date. The
Change of Control provisions described above are applicable whether or not any
other provisions of this Indenture are applicable.
(d) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if a third party makes a Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements applicable to a Change of Control Offer made by the
32
Company and purchases all Notes properly tendered and not withdrawn under such
Change of Control Offer.
Section 4.11. ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, consummate an Asset Sale (other than a Permitted Asset Sale)
unless (i) the Company (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value, as determined in good faith by the Board of Director and evidenced by a
resolution thereof and set forth in an Officers' Certificate delivered to the
Trustee, of the assets or Equity Interests issued or sold or otherwise disposed
of and (ii) at least 80% of the consideration therefor received by the Company
or such Subsidiary is in the form of cash or Cash Equivalents; PROVIDED THAT the
amount of (x) any liabilities (as shown on the Company's or such Subsidiary's
most recent balance sheet), of the Company or any Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Company
or such Subsidiary from further liability and (y) any securities, notes or other
obligations received by the Company or any such Subsidiary from such transferee
that are contemporaneously (subject to ordinary settlement periods) converted by
the Company or such Subsidiary into cash (to the extent of the cash received),
shall be deemed to be cash for purposes of this provision.
(b) Within 180 days after the receipt of any Net Proceeds from
an Asset Sale, the Company may apply such Net Proceeds (to the extent not
otherwise required to be applied to repay any Indebtedness in respect of the
Revolving Credit Facility or the Note Purchase Agreement) to the acquisition of
long-term assets that are used or useful in the same line of business as that in
which Company was engaged on the date of this Indenture. Pending the final
application of any such Net Proceeds, the Company may invest such Net Proceeds
in any manner that is not prohibited by the Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied (or
deemed applied) or invested as provided in the preceding paragraph shall be
deemed to constitute "EXCESS PROCEEDS." Within 30 days after the aggregate
amount of Excess Proceeds exceeds $10.0 million, the Company will be required to
make an Asset Sale Offer to all Holders of Notes, and all holders of other
Indebtedness that ranks equally with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets, to purchase the maximum principal amount
of Notes and such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds. The Asset Sale Offer price will be equal to 100% of principal
amount plus accrued and unpaid interest to the date of purchase and will be
payable in cash, in accordance with the procedures set forth herein.
Section 4.12. LIENS.
The Company shall not, and shall not permit any of its
Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any
of its properties or assets, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income, except
for:
(a) Liens created pursuant to the Note Purchase Agreement;
(b) Liens created pursuant to the Revolving Credit Facility;
33
(i) Liens created by the Notes, this Indenture and the
Security Documents and the Liens expressly permitted by the Security Documents,
if any;
(c) Liens existing on the date of this Agreement and disclosed
on SCHEDULE 4.12;
(d) purchase money security interests in property of the
Company or any Subsidiary not to exceed $[ ] in the aggregate; and
(e) Permitted Liens of the Company and its Subsidiaries
unless all payments under this Indenture and the Notes are
secured on an equal and ratable basis with the obligations so secured by such
Lien.
Section 4.13. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Subsidiaries to, except as otherwise expressly permitted herein, do any of the
following: (a) make any Investment in an Affiliate of the Company which is not a
Subsidiary of the Company; (b) transfer, sell, lease, assign or otherwise
dispose of any asset to any Affiliate of the Company which is not a Subsidiary
of the Company; (c) merge into or consolidate with or purchase or acquire assets
from any Affiliate of the Company which is not a Subsidiary of the Company; (d)
repay any Indebtedness to any Affiliate of the Company which is not a Subsidiary
of the Company; or (e) enter into any other transaction directly or indirectly
with or for the benefit of any Affiliate of the Company which is not a Guarantor
(including guaranties and assumptions of obligations of any such Person), except
for (i) transactions in the ordinary course of business on a basis no less
favorable to the Company or such Guarantor as would be obtained in a comparable
arm's length transaction with a Person not an Affiliate and (ii) salaries and
other employee compensation to officers or directors of the Company or any of
its Subsidiaries commensurate with current compensation levels.
Section 4.14. LIMITATION ON LAYERING.
The Company shall not, directly or indirectly, incur any
Indebtedness that by its terms would expressly rank senior in right of payment
to the Notes and expressly rank subordinate in right of payment to any other
Indebtedness of the Company. The Company shall not permit any Guarantor to, and
no Guarantor shall, directly or indirectly, incur any Indebtedness that by its
terms would expressly rank senior in right of payment to the Guarantee of such
Guarantor and expressly rank subordinate in right of payment to any Guarantor
Senior Indebtedness of such Guarantor.
Section 4.15. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Significant
Subsidiary to, engage in any business other than such business activities as the
Company and its Subsidiaries are engaged in on the date of this Indenture and
such business activities similar or reasonably related thereto as determined in
good faith by the Company's Board of Directors.
Section 4.16. LIMITATIONS ON PREFERRED STOCK OR PREFERRED
EQUITY INTERESTS OF SUBSIDIARIES.
The Company shall not permit any of its Subsidiaries to issue
or sell any preferred stock or preferred Equity Interests (other than to the
Company or to a Subsidiary of the Company) or permit any Person (other than the
Company or a Subsidiary of the Company) to own any preferred stock or preferred
Equity Interests of any Subsidiary; PROVIDED, HOWEVER, that the Company and its
Subsidiaries may issue
34
preferred stock or preferred Equity Interests if (i) after giving effect on a
pro forma basis to such issuance or ownership and to the extent set forth in the
definition of Consolidated Fixed Charge Coverage Ratio the receipt and
application of the proceeds thereof, the Company's Consolidated Fixed Charge
Coverage Ratio for the most recently ended four fiscal quarters preceding the
date of such issuance or ownership would have been at least [ ] to 1 and (ii) no
Default or Event of Default shall have occurred and be continuing at the time or
as a consequence of such issuance or ownership.
Section 4.17. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company shall not, and shall not permit any of its
Subsidiaries to, enter into any Sale and Lease-Back Transaction; PROVIDED THAT
the Company may enter into a Sale and Lease-Back Transaction if (i) the Company
could have (a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such Sale and Lease-Back Transaction pursuant to the Consolidated
Fixed Charge Coverage Ratio test set forth in the first paragraph of SECTION
4.09 hereof and (b) incurred a Lien to secure such Indebtedness pursuant to
SECTION 4.12 hereof, (ii) the gross cash proceeds of such Sale and Lease-Back
Transaction are at least equal to the fair market value (as determined in good
faith by the Board of Directors and set forth in an Officers' Certificate
delivered to the Trustee) of the property that is the subject of such Sale and
Lease-Back Transaction and (iii) the transfer of assets in such Sale and
Lease-Back Transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, SECTION 4.10 hereof.
Section 4.18. PAYMENTS FOR CONSENT.
The Company and its Subsidiaries shall not, either directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes, unless such consideration is offered to be paid or
agreed to be paid to all Holders of the Notes that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
Section 4.19. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
Section 4.20. ADDITIONAL NOTE GUARANTEES.
(a) If the Company shall, directly or indirectly acquire any
person which on or after the date of such acquisition becomes a Subsidiary of
the Company, then such Subsidiary shall promptly execute and deliver to the
Trustee a Note Guarantee in the form of a Supplemental Indenture. The form of
such Supplemental Indenture is attached as Exhibit F hereto.
35
(b) A Guarantor may not consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person (other
than the Company or a Guarantor), unless:
(i) subject to the provisions of the following paragraph, the
Person formed by or surviving any such consolidation or merger (if other than
such Guarantor) assumes all the obligations of such Guarantor, pursuant to a
Supplemental Indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes and this Indenture; and
(ii) the Net Proceeds of such transaction are applied in
accordance with the provisions of SECTION 4.10.
(c) The Note Guarantee of a Guarantor shall be automatically
released:
(i) in connection with any sale or other disposition of all or
substantially all of the assets of such Guarantor permitted pursuant to the
terms of the Senior Facilities; or
(ii) in connection with any sale or other disposition of all
of the capital stock of such Guarantor permitted pursuant to the terms of the
Senior Facilities.
Section 4.21. SECURITY DOCUMENTS.
None of the Company or any of its Subsidiaries shall amend,
waive or modify, or take or refrain from taking any action that has the effect
of amending, waiving or modifying, any provision of the Security Documents or
engaging in any transfer of assets from any Person whose capital stock and
assets constitute Collateral or any restructuring of the affairs of such Person
and its subsidiaries to the extent that such amendment, waiver, modification,
action or restructuring could have an adverse effect on the rights of the
Trustee or the Holders, provided, that (i) the Collateral may be released or
modified in an Asset Sale as expressly authorized in this Indenture or in the
Security Documents; (ii) any Guarantee and pledges may be released in an Asset
Sale as expressly provided in this Indenture or in the Security Documents; and
(iii) this Indenture and any of the Security Documents may be otherwise amended,
waived or modified as set forth under Article 8 hereof.
ARTICLE 5
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Subsidiaries in one or more related
transactions to, another corporation, Person or entity, unless:
(i) either (a) the Company is the surviving Person; or (b) the
entity or the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is organized and existing
under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under
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the Registration Rights Agreement, the Notes and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event
of Default exists; and
(iv) the Company or the entity or Person formed by or
surviving any such consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made, except in
the case of a transaction the principal purpose and effect of which is to change
the Company's state of incorporation, shall, on the date of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge
Coverage Ratio test set forth in SECTION 4.09 hereof.
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with SECTION 5.01 hereof, the successor
Person formed by such consolidation or into or with which the Company is merged
or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "COMPANY" shall
refer instead to the successor Person and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein; PROVIDED,
HOWEVER, that the predecessor Company shall not be relieved from the obligation
to pay the principal of and interest on the Notes except in the case of a sale,
assignment, transfer, conveyance or other disposition of all of the Company's
assets that meets the requirements of SECTION 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
Each of the following shall constitute an "EVENT OF DEFAULT":
(i) the Company or any Guarantor shall default for 30 days in
the payment when due of interest on the Notes;
(ii) the Company or any Guarantor shall default in the payment
of all or any part of the principal, or premium, if any, on the Notes when and
as the same becomes due and payable at maturity, upon redemption, by
acceleration, or otherwise (including, without limitation, in connection with an
Asset Sale Offer);
(iii) the Company or any of its Subsidiaries shall fail for 30
days to observe or perform in all material respects its duties, obligations and
covenants set forth in SECTIONS 4.07, 4.09, 4.10, 4.11, 4.12 or 5.01 hereof;
(iv) the Company or any of its Subsidiaries shall fail to
observe or perform in all material respects any other covenant or agreement on
the part of the Company or such Subsidiary contained in the Notes, the Security
Documents or this Indenture if such failure is not remedied within 45
37
days after written notice is given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, specifying such default, requiring that it
be remedied and stating that such notice is a "NOTICE OF DEFAULT;"
(v) breach by the Company or any Guarantor of any material
representation or warranty or agreement in the Security Documents, the
repudiation by the Company or any Guarantor of any of its obligations under the
Security Documents or the unenforceability of all or any part of the Security
Documents against the Company or any Guarantor for any reason;
(vi) the Company or any of its Subsidiaries shall default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness by the Company or
any of its Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Subsidiaries) whether such Indebtedness or guarantee now exists, or
is created after the date of this Indenture, if such default:
(A) is caused by a failure to pay principal of or premium, if
any, or interest on such Indebtedness prior to the expiration of the grace
period provided for in the documentation governing such Indebtedness on the date
of such default (a "PAYMENT DEFAULT"); or
(B) results in the acceleration of such Indebtedness prior to
its stated maturity; and
(C) in the case of each of clauses (A) and (B) above, the
principal amount of any such Indebtedness, together with the principal amount of
any other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $10 million or more;
(vii) one or more final, non-appealable judgments or orders
(or other similar process) shall be rendered against the Company or any of its
Subsidiaries involving, in any single case or in the aggregate, an amount in
excess of $[ ] in the case of a money judgment, to the extent not covered by
insurance;
(viii) except as permitted by this Indenture, any Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Guarantor, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Note Guarantee;
(ix) one or more of the Company and its Subsidiaries shall
have entered into one or more consent or settlement decrees or agreements or
similar arrangements with a Governmental Authority or one or more judgments,
orders, decrees or similar actions shall have been entered against one or more
of the Company and its Subsidiaries based on or arising from the violation of or
pursuant to any Environmental Law, or the generation, storage, transportation,
treatment, disposal or Release of any Contaminant and, in connection with all
the foregoing, the Company and its Subsidiaries are likely to incur
Environmental Liabilities and Costs in excess of $[ ] in the aggregate;
(x) (A) the Company or any of its Significant Subsidiaries (as
defined in Article I, Rule 1-02 of Regulation S-X promulgated pursuant to the
Securities Act) shall generally not pay its debts as such debts become due,
shall admit in writing its inability to pay its debts generally or shall make a
general assignment for the benefit of creditors, (B) any proceeding shall be
instituted by or against the Company or any Significant Subsidiary seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts, under any Requirement of Law relating to bankruptcy, insolvency or
reorganization or relief of
38
debtors, or seeking the entry of an order for relief or the appointment of a
custodian, receiver, conservator, trustee or other similar official for it or
for any substantial part of its property; PROVIDED, HOWEVER, that, in the case
of any such proceedings instituted against the Company or any Significant
Subsidiary (but not instituted by the Company or any Significant Subsidiary),
either such proceedings shall remain undismissed or unstayed for a period of 60
consecutive days or more or any action sought in such proceedings shall occur or
(C) the Company or any of its Significant Subsidiaries shall take any corporate
action to authorize any action set forth in CLAUSES (A) and (B) above; or
(xi) an ERISA Event shall occur and the amount of all liabilities
and deficiencies resulting therefrom, whether or not assessed, exceeds $[ ] in
the aggregate.
Section 6.02. ACCELERATION.
(a) If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default as described
in clause (ix) of SECTION 6.01 hereof, the Notes shall become due and payable
without further action or notice. Holders of the Notes may not enforce this
Indenture or the Notes except as provided in this Indenture.
(b) In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of SECTION 3.07(A) hereof, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
Section 6.03. OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
(c) The Company shall deliver to the Trustee annually a
statement regarding compliance with this Indenture, and the Company shall upon
becoming aware of any Default or Event of Default, deliver to the Trustee a
statement specifying such Default or Event of Default and the action the Company
has determined to take in respect thereof.
Section 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the
Notes then outstanding may, by notice to the Trustee, on behalf of the Holders
of all of the Notes, waive any existing Default or Event of Default and its
consequences under this Indenture (including any acceleration, other than an
automatic acceleration resulting from an Event of Default under clause (ix) of
SECTION 6.01 hereof) except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes
39
(other than as a result of an acceleration), and payments required under SECTION
4.10 or 4.11 hereof, which shall require the consent of all of the Holders of
the Notes then outstanding.
Section 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust power conferred on it. However, (i) the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability, and (ii) the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. In case an Event of Default shall occur (which shall not be cured),
the Trustee shall be required, in the exercise of its power, to use the degree
of care of a prudent person in the conduct of its own affairs. Notwithstanding
any provision to the contrary in this Indenture, the Trustee is under no
obligation to exercise any of its rights or powers under this Indenture at the
request of any Holder of Notes, unless such Holder shall offer to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
Section 6.06. LIMITATION ON SUITS.
(a) A Holder of a Note may pursue a remedy with respect to
this Indenture, the Note Guarantee or the Notes only if:
(i) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default or the Trustee receives such notice from the
Company;
(ii) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(v) during such 60-day period, the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
(b) A Holder of a Note may not use this Indenture to prejudice
the rights of another Holder of a Note or to obtain a preference or priority
over another Holder of a Note.
Section 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, if any,
and interest, on the Notes, on or after the respective due dates expressed in
the Notes (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
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Section 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in SECTION 6.01(i) or (ii)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as Trustee of an express trust against the Company for the
whole amount of principal of, premium and interest remaining unpaid on the Notes
and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Company, any Guarantor (or any other obligor upon the Notes), its creditors or
its property, to participate as a member, voting or otherwise, of any official
committee of creditors appointed in such manner and shall be entitled and
empowered to collect, receive and distribute any money or other securities or
property payable or deliverable upon the conversion or exchange of the Notes or
on any such claims and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under SECTION 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under SECTION 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. PRIORITIES.
(a) If the Trustee collects any amounts due pursuant to this
ARTICLE 6, it shall distribute all such amounts in the following order:
(i) First, to the Trustee, its agents and attorneys for
amounts due under SECTION 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
(ii) Second, to Holders of Notes for amounts due and unpaid on
the Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and interest, respectively;
(iii) Third, without duplication, to the Holders for any other
Obligations owing to the Holders under this Indenture and the Notes; and
(iv) Fourth, to the Company or to such party as a court of
competent jurisdiction shall direct.
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(b) The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this SECTION 6.10.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This SECTION 6.11 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to SECTION 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing of
which a Responsible Officer of the Trustee has knowledge, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and the Trustee need perform
only those duties that are specifically set forth in this Indenture or the TIA
and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this SECTION 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to SECTION 6.05 hereof.
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(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (A), (B) and (C) of this SECTION 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, including without limitation the
provisions of SECTION 6.05 hereof, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense that might be incurred by it in complying with such request.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. The Trustee may be the Collateral Agent.
Section 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on the truth of the
statements and correctness of the opinions contained in, and shall be protected
from acting or refraining from acting upon, any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officer's Certificate or Opinion of Counsel. Prior to taking,
suffering or admitting any action, the Trustee may consult with counsel of the
Trustee's own choosing and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Notes unless either (1) a
Responsible Officer of the Trustee shall have actual knowledge of such Default
or Event of Default or (2) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or by any Holder of the
Notes.
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Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the Commission for permission
to continue as Trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to SECTIONS 7.10 and 7.11 hereof. The
Trustee shall not be responsible for the validity, effectiveness or sufficiency
of the Collateral or the Security Documents.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, any Note
Guarantee or the Notes, it shall not be accountable for the Company's use of the
proceeds from the Notes or any money paid to the Company or upon the Company's
direction under any provision of this Indenture, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or
any statement in the Notes or any other document in connection with the sale of
the Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
on any Note pursuant to SECTION 6.01(I) or (II) hereof, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after the end of each month beginning with the
[ ] following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA section 313(a) (but if no
event described in TIA section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Company has informed the Trustee in writing
the Notes are listed in accordance with TIA section 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange and
of any delisting thereof.
The Trustee shall comply with all federal withholding tax
requirements respecting payments to the Holders of the Notes that the Trustee
reasonably believes are applicable under the Internal Revenue Code of 1986, as
amended (the "Code"), and the Treasury Regulations promulgated thereunder.
Further, the Trustee shall file with the Internal Revenue Service and, where
required to do so, provide to the Holders of the Notes, all federal information
tax returns respecting payments to the Holders of the Notes that the Trustee
reasonably believes are applicable under the Code and the Treasury Regulations.
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Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. To the extent permitted by law, the Trustee's compensation shall not
be limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and actual out of pocket expenses incurred or made by it
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel, but shall not include expenses incurred as a result of the
Trustee's gross negligence or willful misconduct.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the Company
(including this SECTION 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder except to the extent any such loss, liability or expense may be
attributable to its gross negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company and the
Guarantors of their obligations hereunder, except to the extent of actual
prejudice to the Company resulting from such failure. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company and the Guarantors shall pay the reasonable
fees and expenses of such counsel. The Company and the Guarantors need not pay
for any settlement made without their consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this SECTION 7.07 shall
survive the satisfaction and discharge of this Indenture and to the resignation
or removal of the Trustee.
To secure the Company's payment obligations in this SECTION
7.07, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in SECTION 6.01(IX) or (X) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA section
313(b)(2) to the extent applicable.
Section 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this SECTION 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
45
(a) the Trustee fails to comply with SECTION 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
SECTION 7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and the duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
that all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in SECTION 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this SECTION 7.08, the Company's obligations under SECTION
7.07 hereof shall continue for the benefit of the retiring Trustee. The
replacement of the Trustee pursuant to this SECTION 7.08 shall operate as a
replacement of the Collateral Agent as well. The Company shall take such actions
as are necessary or desirable, in the opinion of counsel to the successor
Collateral Agent, to maintain the perfection of the Liens created by the
Security Documents, all at the expense of the Company.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee or any Agent, as applicable.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities. The Trustee and its direct parent shall at all
times have a combined capital surplus of at least $150.0 million as set forth in
its most recent annual report of condition.
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This Indenture shall always have a Trustee who satisfies the
requirements of TIA section 310(a)(1), (2) and (5). The Trustee is subject to
TIA section 310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY.
The Trustee is subject to TIA section 311(a), excluding any
creditor relationship listed in TIA section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA section 311(a) to the extent indicated
therein.
ARTICLE 8
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. WITHOUT CONSENT OF HOLDERS OF THE NOTES.
(a) Notwithstanding SECTION 8.02 of this Indenture, without
the consent of any Holder of Notes, the Company, the Guarantors and the Trustee
(or, with respect to the Security Documents, the Collateral Agent, at the
written direction of the Trustee) may amend or supplement this Indenture, the
Note Guarantees, the Security Documents or the Notes:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(iii) to provide for the assumption of the Company's or any
Guarantor's obligations to the Holders of the Notes in the case of a merger,
consolidation or sale of all or substantially all of the Company's assets;
(iv) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Notes;
(v) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(vi) to allow any Guarantor to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes.
(b) Upon the written request of the Company accompanied by
resolutions of the Board of Directors or other governing body of the Company
authorizing the execution of any such amended or supplemental indenture and upon
receipt by the Trustee of the documents described in SECTION 7.02 hereof, the
Trustee (or the Collateral Agent, as applicable) shall join with the Company and
the Guarantors in the execution of any amended or supplemental indenture or
amendment to a Security Document authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee (or the Collateral Agent, as
applicable) shall not be obligated to enter into such amended or supplemental
indenture or amendment to a Security Document that affects its own rights,
duties or immunities under this Indenture, the Security Documents or otherwise.
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Section 8.02. WITH CONSENT OF HOLDERS OF NOTES.
(a) Except as provided in SECTIONS 8.02(B) and (C), the Notes,
the Security Documents and the Note Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for Notes), and subject to
SECTIONS 6.04 and 6.07 hereof any existing Default or Event of Default or
compliance with any provision of this Indenture, the Note Guarantees, the
Security Documents or the Notes may be waived with the consent of the Holders of
a majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes). In
addition, without the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, an amendment or waiver may not
make any change to, or be effective with respect to, any of the provisions of
this Indenture or the Security Documents relating to the Collateral.
(b) Upon the request of the Company accompanied by resolutions
of the Board of Directors or other governing body of the Company authorizing the
execution of any such amended or supplemental indenture or amendment to a
Security Document, and upon the filing with the Trustee of evidence satisfactory
to the Trustee of the consent of the Holders of Notes as aforesaid, and upon
receipt by the Trustee of the documents described in SECTION 9.06 hereof, the
Trustee (or the Collateral Agent, as applicable) shall join with the Company and
the Guarantors in the execution of such amended or supplemental indenture or
amendment to a Security Document unless such amended or supplemental indenture
or amendment to a Security Document affects the Trustee's (or the Collateral
Agent's) own rights, duties or immunities under this Indenture, the Security
Documents or otherwise, in which case the Trustee may, but shall not be
obligated to, enter (or direct the Collateral Agent to enter into) into such
amended or supplemental indenture or amendment to a Security Document, as the
case may be.
(c) It shall not be necessary for the consent of the Holders
of Notes under this SECTION 8.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this
SECTION 8.02 becomes effective, the Company shall mail to the Holders of each
Note affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental indenture or waiver.
(e) Without the consent of each Holder affected, an amendment
or waiver may not (with respect to any Notes held by a non-consenting Holder):
(i) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the Notes
(except as provided above with respect to SECTIONS 3.09, 4.10 and 4.11 hereof);
(iii) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(iv) waive a Default or Event of Default in the payment of
principal of or premium or interest on the Notes (including, without limitation,
in connection with an Asset Sale Offer) except a
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rescission of acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration;
(v) make any Note payable in money other than that stated in
the Notes;
(vi) make any change in the provisions of this Indenture
relating to waivers of Defaults or the rights of Holders of Notes to receive
payments of principal of or premium or interest on the Notes;
(vii) waive a redemption payment with respect to any Note; or
(viii) make any change in the foregoing amendment and waiver
provisions; or
(ix) release any Guarantor from any of its obligations under
its Note Guarantee or this Indenture, except in accordance with the terms of
this Indenture.
Section 8.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture, the Note
Guarantee or the Notes shall be set forth in an amended or supplemental
Indenture that complies with the TIA as then in effect.
Section 8.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. When an amendment, supplement or waiver becomes effective in
accordance with its terms, it thereafter binds every Holder.
Section 8.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver. Failure to make the
appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
Section 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 8 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee or
the Collateral Agent, as applicable. The Company may not sign an amendment or
supplemental indenture or amendment to a Security Document until the Board of
Directors approves it. In signing or refusing to sign any amended or
supplemental indenture (or in directing the Collateral Agent to sign or not sign
an amendment to any Security Document) the Trustee shall be entitled to receive
and (subject to SECTION 7.01 hereof) shall be fully protected in relying upon,
in addition to the documents required by SECTION 13.04 hereof, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture or Security Document is authorized
49
or permitted by this Indenture, that it is not inconsistent herewith, and that
it shall be valid and binding upon the Company and, to the extent applicable,
each Guarantor in accordance with its terms.
ARTICLE 9
COLLATERAL AND SECURITY
Section 9.01. SECURITY DOCUMENTS.
The due and punctual payment of the principal of and interest
on the Notes when and as the same shall be due and payable, whether on an
interest payment date, at maturity, by acceleration, repurchase, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes
and performance of all other obligations of the Company to the Holders of Notes
or the Trustee under this Indenture and the Notes, according to the terms
hereunder or thereunder, shall be secured as provided in the Security Documents
which the Company has entered into simultaneously with the execution of this
Indenture. Each Holder of Notes, by its acceptance thereof, consents and agrees
to the terms of the Security Documents (including, without limitation, the
provisions providing for foreclosure and release of Collateral) as the same may
be in effect or may be amended from time to time in accordance with its terms,
initially appoints the Trustee to act as the "COLLATERAL AGENT" thereunder and
authorizes and directs the Trustee, solely in its capacity as Collateral Agent,
to enter into the Security Documents and to perform its obligations and exercise
its rights thereunder in accordance therewith. The Company shall do or cause to
be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Security Documents, to assure and confirm to
the Trustee and the Collateral Agent the security interest in the Collateral
contemplated hereby, by the Security Documents or any part thereof, as from time
to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein expressed. The Company shall take, or shall cause its
Subsidiaries to take any and all actions reasonably required to cause the
Security Documents to create and maintain, as security for the Obligations of
the Company hereunder, a valid and enforceable perfected first priority Lien in
and on all the Collateral, in favor of the Collateral Agent for its benefit and
the ratable benefit of the Holders of Notes, superior to and prior to the rights
of all third Persons and subject to no Liens (other than Liens permitted by the
Security Documents).
Section 9.02. RECORDING AND OPINIONS.
(a) The Company shall furnish to the Collateral Agent and the
Trustee on [ ], in each year beginning with
[ ], an Opinion of Counsel, dated as
of such date, either (i) (A) stating that, in the opinion of such counsel,
action has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of all supplemental indentures,
financing statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Security Documents and
reciting with respect to the security interests in the Collateral the details of
such action or referring to prior Opinions of Counsel in which such details are
given, (B) stating that, based on relevant laws as in effect on the date of such
Opinion of Counsel, all financing statements and continuation statements have
been executed and filed that are necessary as of such date and during the
succeeding 12 months fully to preserve and protect, to the extent such
protection and preservation are possible by filing, the rights of the Holders of
Notes and the Collateral Agent and the Trustee hereunder and under the Security
Documents with respect to the security interests in the Collateral, or (ii)
stating that, in the opinion of such counsel, no such action is necessary to
maintain such Lien and assignment.
(b) The Company shall otherwise comply with the provisions of
TIA section 314(d).
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Section 9.03. RELEASE OF COLLATERAL.
(a) Subject to subsections (b), (c) and (d) of this SECTION
9.03, Collateral may be released from the Lien and security interest created by
the Security Documents at any time or from time to time in accordance with the
provisions of the Security Documents and as provided hereby. Upon the request of
the Company pursuant to an Officer's Certificate certifying that all conditions
precedent to such release hereunder and under the Security Documents have been
met, the Collateral Agent shall release Collateral. Upon receipt of such
Officer's Certificate, the Collateral Agent shall (at the sole cost and expense
of the Company) execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to evidence the release of
any Collateral permitted to be released pursuant to this Indenture or the
Security Documents.
(b) No Collateral shall be released from the Lien and security
interest created by the Security Documents pursuant to the provisions of the
Security Documents unless there shall have been delivered to the Collateral
Agent the certificate required by this SECTION 9.03.
(c) At any time when a Default or Event of Default shall have
occurred and be continuing and the maturity of the Notes shall have been
accelerated (whether by declaration or otherwise) and the Trustee shall have
delivered a notice of acceleration to the Collateral Agent (unless the Trustee
is the Collateral Agent, in which case no such notice shall be required), no
release of Collateral pursuant to the provisions of the Security Documents shall
be effective as against the Holders of Notes.
(d) The release of any Collateral from the terms of this
Indenture and the Security Documents shall not be deemed to impair the security
under this Indenture in contravention of the provisions hereof if and to the
extent the Collateral is released pursuant to the terms of the Security
Documents. To the extent applicable, the Company shall cause TIA section 313(b),
relating to reports, and TIA section 314(d), relating to the release of property
or securities from the Lien and security interest of the Security Documents and
relating to the substitution therefor of any property or securities to be
subjected to the Lien and security interest of the Security Documents, to be
complied with. Any certificate or opinion required by TIA section 314(d) may be
made by an Officer of the Company except in cases where TIA section 314(d)
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee and the Collateral Agent in the exercise of
reasonable care.
Section 9.04. CERTIFICATES OF THE COMPANY.
The Company shall furnish to the Trustee and the Collateral
Agent, prior to each proposed release of Collateral pursuant to the Security
Documents, (i) all documents required by TIA section 314(d) and (ii) an Opinion
of Counsel, which may be rendered by internal counsel to the Company, to the
effect that such accompanying documents constitute all documents required by TIA
section 314(d). The Trustee may, to the extent permitted by SECTIONS 7.01 and
7.02 hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
Section 9.05. CERTIFICATES OF THE TRUSTEE.
In the event that the Company wishes to release Collateral in
accordance with the Security Documents and has delivered the certificates and
documents required by the Security Documents and SECTIONS 9.03 and 9.04 hereof,
the Trustee shall, upon receipt of such documentation and based on the Opinion
of Counsel delivered pursuant to SECTION 9.02, deliver a certificate to the
Collateral Agent confirming receipt of such documentation and Opinion of
Counsel; PROVIDED, HOWEVER, that so long as the Trustee is the Collateral Agent,
the requirement that the Trustee deliver a certificate to the Collateral Agent
shall not be applicable.
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Section 9.06. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE
TRUSTEE UNDER THE SECURITY DOCUMENTS.
Subject to the provisions of SECTION 7.01 and 7.02 hereof, the
Trustee shall, in its sole discretion and without the consent of the Holders of
Notes, direct, on behalf of the Holders of Notes, the Collateral Agent to take
all actions it deems necessary or appropriate in order to (a) enforce any of the
terms of the Security Documents and (b) collect, receive and distribute any and
all amounts payable in respect of the Obligations of the Company hereunder. The
Trustee shall have power to institute and maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Collateral by any acts
that may be unlawful or in violation of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders of Notes in
the Collateral (including power to institute and maintain suits or proceedings
to restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders of Notes or of the Trustee).
Section 9.07. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE
UNDER THE SECURITY DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit
of the Holders of Notes distributed under the Security Documents, and to make
further distributions of such funds to the Holders of Notes according to the
provisions of this Indenture.
Section 9.08. TERMINATION OF SECURITY INTEREST.
If the Trustee is not the Collateral Agent, upon the payment
in full of all Obligations of the Company under this Indenture and the Notes, or
upon Legal Defeasance, the Trustee shall, at the request of the Company, deliver
a certificate to the Collateral Agent stating that such Obligations have been
paid in full, and instruct the Collateral Agent to release the Liens pursuant to
this Indenture and the Security Documents.
ARTICLE 10
NOTE GUARANTEES
Section 10.01. GUARANTEE.
(a) Subject to this ARTICLE 10, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that: (a)
the principal of and interest on the Notes shall be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes, if any, if lawful, and
all other obligations of the Company to the Holders or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and performance and not a guarantee of
collection.
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(b) The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenant that this Note Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
(d) Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Note Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantees.
Section 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention,
the Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor shall, after giving effect to such maximum amount
and all other contingent and fixed liabilities of such Guarantor that are
relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this
Article 9, result in the obligations of such Guarantor under its Note Guarantee
not constituting a fraudulent transfer or conveyance.
Section 10.03. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
(a) To evidence its Note Guarantee set forth in SECTION 10.01,
each Guarantor hereby agrees that a notation of such Note Guarantee
substantially in the form included in Exhibit E shall be endorsed by an Officer
of such Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Guarantor by its
President or one of its Vice Presidents.
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(b) Each Guarantor hereby agrees that its Note Guarantee set
forth in SECTION 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
(c) If an Officer whose signature is on this Indenture or on
the Note Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee
shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of the Guarantors.
(e) If required by SECTION 4.18 hereof, the Company shall
cause its Subsidiaries to execute supplemental indentures to this Indenture and
Note Guarantees in accordance with SECTION 4.18 hereof and this Article 10, to
the extent applicable and to execute an assumption agreement to the Security
Agreement and such other documents and instruments in connection with the
Security Documents and the Collateral as the Trustee or the Collateral Agent
shall reasonably request.
Section 10.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
(a) Except as otherwise provided in SECTION 10.05, no
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person (other than the Company or a
Guarantor) whether or not affiliated with such Guarantor unless:
(i) subject to SECTION 10.05 hereof, the Person formed by or
surviving any such consolidation or merger (if other than a Guarantor or the
Company) unconditionally assumes all the obligations of such Guarantor, pursuant
to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes and the Indenture; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
Indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.
(c) Except as set forth in Article 4 and Article 5 hereof, and
notwithstanding SECTIONS 10.04(a)(i) and (a)(ii) above, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into the Company or another Guarantor, or shall prevent
any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
54
Section 10.05. RELEASES FOLLOWING SALE OF ASSETS.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the capital stock of any Guarantor, in each case
to a Person that is not (either before or after giving effect to such
transactions) a Subsidiary of the Company, then such Guarantor (in the event of
a sale or other disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Guarantor) or the Person acquiring the property
(in the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) shall be released and relieved of any obligations
under its Note Guarantee; PROVIDED THAT such sale or other disposition are
permitted under the terms of the Senior Facilities. Upon delivery by the Company
to the Trustee of an Officer's Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture (including without limitation SECTION 4.11
hereof), the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Note
Guarantee.
(b) Any Guarantor not released from its obligations under its
Note Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 10.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01. SATISFACTION AND DISCHARGE.
(a) This Indenture shall be discharged and shall cease to be
of further effect as to all Notes issued hereunder, when:
(i) either
(A) all Notes that have been authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Company) have been delivered to the Trustee for cancellation; or
(B) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a notice of
redemption or otherwise or shall become due and payable within one year and the
Company or any Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the benefit of the Holders,
cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as shall be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire indebtedness on the
Notes not delivered to the Trustee for cancellation for principal, premium and
accrued interest to the date of maturity or redemption;
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit shall not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;
(iii) the Company or any Guarantor has paid or caused to be
paid all sums payable by it under this Indenture; and
55
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or the redemption date, as the case may be.
(b) In addition, the Company must deliver an Officer's
Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
(c) Notwithstanding the satisfaction and discharge of this
Indenture, if money shall have been deposited with the Trustee pursuant to
SECTION 11.01(a)(i)(B), the provisions of SECTION 11.02 shall survive.
Section 11.02. APPLICATION OF TRUST MONEY.
(a) All money deposited with the Trustee pursuant to SECTION
13.01 shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
(b) If the Trustee or Paying Agent is unable to apply any
money or Government Securities in accordance with SECTION 11.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to SECTION 11.01; PROVIDED THAT if the Company has made any payment of
principal of and premium and interest on any Notes because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.
ARTICLE 12 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 12.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officer's Certificate, at any time,
elect to have either Section 12.02 or 12.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 12.
Section 12.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 12.01 hereof of the
option applicable to this Section 12.02, the Company and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 12.04 hereof,
be deemed to have been discharged from their respective obligations with respect
to all outstanding Notes and Guarantees on the date the conditions set forth
below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "OUTSTANDING" only for the purposes of Section 12.05
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding
56
Notes to receive payments in respect of the principal of, premium and interest
on such Notes when such payments are due from the trust referred to in Section
12.04(a); (b) the Company's obligations with respect to such Notes under
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02 hereof; (c) the
rights, powers, trusts, duties and immunities of the Trustee including without
limitation thereunder Section 7.07, 12.05 and 12.07 hereof and the Company's
obligations in connection therewith and (d) the provisions of this Section
12.02. Subject to compliance with this Article 12, the Company and Guarantors
may exercise their option under this Section 12.02 notwithstanding the prior
exercise of the option under Section 12.03 hereof.
Section 12.03. COVENANT DEFEASANCE.
Upon the exercise under Section 12.01 hereof of the option
applicable to this Section 12.03, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 12.04 hereof, be
released from their respective obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16 and 4.17 hereof,
and clause (iv) of Section 5.01 hereof with respect to the outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed not
"OUTSTANDING" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "OUTSTANDING" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 12.01 hereof of the option applicable to this
Section 12.03, subject to the satisfaction of the conditions set forth in
Section 12.04 hereof, Sections 6.01(iii) through 6.01(vi) hereof shall not
constitute Events of Default.
Section 12.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. The
following shall be the conditions to the application of either Section 12.02 or
12.03 hereof to the outstanding Notes:
(a) In order to exercise either Legal Defeasance or Covenant
Defeasance:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
shall be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and interest on
the outstanding Notes on the stated maturity or on the applicable redemption
date, as the case may be, and the Company must specify whether the Notes are
being defeased to maturity or to a particular redemption date;
(ii) in the case of an election under Section 12.02 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes shall not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and shall be subject to
federal income tax on the same amounts, in
57
the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(iii) in the case of an election under Section 12.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the Holders
of the outstanding Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and shall be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);
(v) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company is a
party or by which the Company is bound;
(vi) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the 91st day following the deposit,
the trust funds shall not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(vii) the Company shall have delivered to the Trustee an
Officer's Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(viii) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 12.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 12.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee, collectively for purposes of this Section
12.05, the "TRUSTEE") pursuant to Section 12.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 12.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article 12 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
written request of the Company and be relieved of all liability with respect to
any money or non-callable Government Securities held by it as provided in
Section 12.04 hereof which, in the opinion of a nationally recognized firm of
independent public
58
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 12.04(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 12.06. REPAYMENT TO THE COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium and interest on any Note and remaining unclaimed for one year after such
principal, and premium and interest, has become due and payable shall be paid to
the Company on its written request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as Trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and/or The Wall Street Journal
(national edition), notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then
remaining shall be repaid to the Company.
Section 12.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
12.02 or 12.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 12.02 or 12.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 12.02 or 12.03 hereof, as the case may be; provided, however, that, if
the Company makes any payment of principal of, and premium, if any, and interest
on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
Section 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA section 318(c), the imposed duties
shall control.
Section 13.02. NOTICES.
All notices, demands, requests and other communications
provided for in this Agreement shall be given in writing, or by any
telecommunication device capable of creating a written record, and addressed to
the party to be notified as follows:
(a) If to the Company and/or any Guarantor:
AEI Resources, Inc.
0000 Xxxxxxx Xxxxx
00
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxx Xxxxx Xxxx LLC
2700 Lexington Financial Center
000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(b) If to the Trustee/Collateral Agent:
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
MAC N9303-120
Telecopier No: (000) 000-0000
Attention: Corporate Trust
with a copy to:
___________________________
___________________________
Telephone: (___) ___-____
Telecopier: (___) ___-____
Attention: ______________
(c) If to any Holder, at its address specified on the
signature pages hereto;
or at such other address as shall be notified in writing (i)
in the case of the Company and the Trustee, to the other parties and (ii) in the
case of all other parties, to the Company and the Trustee. Any notice or
communication shall also be so mailed to any Person described in TIA section
313(c), to the extent required by the TIA. All such notices and communications
shall be effective upon personal delivery (if delivered by hand, including any
overnight courier service), when deposited in the mails (if sent by mail), or
when properly transmitted (if sent by a telecommunications device); PROVIDED,
HOWEVER, that notices and communications to the Trustee pursuant to ARTICLE 2 or
9 shall not be effective until received by the Trustee.
If the Company mails a notice or communication to the Holders,
it shall mail a copy to the Trustee and to the Collateral Agent at the same
time.
60
Section 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES.
Holders may communicate pursuant to TIA section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA section 312(c).
Section 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture (other than the initial issuance of the
Notes), the Company shall furnish to the Trustee upon request:
(i) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
SECTION 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
SECTION 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA section 314(a)(4)) shall comply with the provisions of
TIA section 314(e) and shall include:
(i) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(iii) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 13.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or such Guarantor under the Notes, the Note
Guarantees, this Indenture, or for any claim based on, in respect of, or by
reason of,
61
such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 13.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
Indenture, loan or debt agreement of the Company or their Subsidiaries or of any
other Person. Any such Indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 13.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes
shall bind their respective successors and potential assigns. All agreements of
each Guarantor in this Indenture shall bind its successors, except as otherwise
provided in SECTION 10.05. All agreements of the Trustee in this Indenture shall
bind its successors and assigns.
Section 13.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 13.12. COUNTERPART ORIGINALS.
This Indenture may be executed in any number of counterparts
and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are attached to the same document.
Section 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and Headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 13.14. NO WAIVER; REMEDIES. No failure on the part of
any Holder or the Trustee to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
62
Section 13.15. BINDING EFFECT. This Indenture shall become
effective when it shall have been executed by the Company and the Trustee and
when the Trustee shall have been notified by each Holder that such Holder has
executed it and thereafter shall be binding upon and inure to the benefit of the
Company, the Trustee and each Holder and their respective successors and
assigns, except that the Company shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Holders.
Section 13.16. ENTIRE AGREEMENT. This Indenture, the Security
Documents, the Notes, together with all of the other certificates and documents
delivered hereunder or thereunder, embodies the entire agreement of the parties
and supersedes all prior agreements and understandings relating to the subject
matter hereof. Delivery of an executed signature page of this Indenture by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Indenture signed by all parties
shall be lodged with the Company and the Trustee.
[Signatures on following page]
63
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
COMPANY:
AEI RESOURCES, INC.
By:
-----------------------------------
Name:
Title:
Address for Notices:
c/o AEI Resources, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: _________________
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
64
GUARANTORS:
17 WEST MINING, INC., XXXXX-XXXXX CO., INC.,
ACECO, INC., XXXXXX COAL COMPANY,
XXXXXXXXX MINING, INC., XXXXXX RESOURCES, INC.,
AEI COAL SALES COMPANY, INC., XXXXXX RESOURCES MANAGEMENT, INC.,
AEI HOLDING COMPANY, INC., XXXXX COAL COMPANY,
AEI RESOURCES HOLDING, INC., MEADOWLARK, INC.,
AMERICOAL DEVELOPMENT COMPANY, MEGA MINERALS, INC.,
APPALACHIAN REALTY COMPANY, MIDWEST COAL SALES COMPANY,
AYRSHIRE LAND COMPANY, MID-VOL LEASING, INC.,
BLUEGRASS COAL DEVELOPMENT COMPANY, MINING TECHNOLOGIES, INC.,
BOWIE RESOURCES LIMITED, MOUNTAIN-CLAY, INCORPORATED
CC COAL COMPANY, (d/b/a Mountain Clay, Inc.),
COAL VENTURES HOLDING COMPANY, INC., PHOENIX LAND COMPANY,
EAST KENTUCKY ENERGY CORPORATION, PREMIUM PROCESSING, INC.,
EMPLOYEE BENEFITS MANAGEMENT, INC., PRO-LAND, INC. (d/b/a Kem Coal Seller),
EMPLOYEE CLAIMS ADMINISTRATION, LLC, RED RIDGE MINING, INC.,
ENERZ CORPORATION, RIVER COAL COMPANY, INC.,
EVERGREEN MINING COMPANY, ROARING CREEK COAL COMPANY,
FAIRVIEW LAND COMPANY, SHIPYARD RIVER COAL TERMINAL COMPANY,
XXXXXXX BRANCH COAL CO., INC., STRAIGHT CREEK COAL RESOURCES COMPANY,
FRANKLIN COAL SALES COMPANY, SUNNY RIDGE ENTERPRISES, INC.,
G.E.C., Inc. SUNNY RIDGE MINING COMPANY, INC.,
GRASSY COVE COAL MINING COMPANY, TENNESSEE MINING, INC.,
HERITAGE MINING COMPANY, TURRIS COAL COMPANY,
HIGHLAND COAL, INC., WYOMING COAL TECHNOLOGY, INC.,
XXXXXXX COAL HOLDING COMPANY,
XXXXXXX ENVIRONMENTAL SERVICES COMPANY,
ZENERGY, INC.,
each as a Guarantor
By: _______________________________________
Name:
Title:
65
BEECH COAL COMPANY,
CANNELTON, INC.,
CANNELTON INDUSTRIES, INC.,
CANNELTON LAND COMPANY,
CANNELTON SALES COMPANY,
XXXX COAL & DOCK COMPANY,
XXXXXX HOLDINGS, INC.,
KANAWHA CORPORATION,
KINDILL HOLDING, INC.,
KINDILL MINING, INC.,
MIDWEST COAL COMPANY,
MOUNTAINEER COAL
DEVELOPMENT COMPANY,
MOUNTAIN COALS CORPORATION,
OLD BEN COAL COMPANY,
PRINCESS XXXXXXX COAL COMPANY,
PRINCESS XXXXXXX COAL HOLDING
COMPANY, INC.,
RP TERMINAL, LLC.,
WEST VIRGINIA-INDIANA COAL
HOLDING COMPANY, INC.,
each as a Guarantor
By:
---------------------------------------
Name:
Title:
BENTLEY COAL COMPANY,
SKYLINE COAL COMPANY,
KENTUCKY PRINCE MINING COMPANY,
each as Guarantor
By: GRASSY COVE COAL MINING COMPANY,
ROARING CREEK
COAL COMPANY,
each as General Partner of each of the entities
listed above
By:
-------------------------------------------
Name:
Title:
66
TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
Title:
Address for Notices:
Xxxxx Fargo Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Telecopier No: (000) 000-0000
Telephone No. (000) 000-0000
Attention: Corporate Trust
67
HOLDERS:
--------------------------------------
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
Address for Notices:
---------------------------
---------------------------
---------------------------
Attention: __________________
Telecopier No.: (___) ___-_____
Telephone No.: (___) ___-_____
68
