Attached files
file | filename |
---|---|
8-K - FORM 8-K - PEABODY ENERGY CORP | c60025e8vk.htm |
EX-5.1 - EX-5.1 - PEABODY ENERGY CORP | c60025exv5w1.htm |
EX-99.1 - EX-99.1 - PEABODY ENERGY CORP | c60025exv99w1.htm |
EX-99.2 - EX-99.2 - PEABODY ENERGY CORP | c60025exv99w2.htm |
Exhibit 4.1
EXECUTION COPY
PEABODY ENERGY CORPORATION
6.500% SENIOR NOTES DUE 2020
THIRTY-THIRD SUPPLEMENTAL INDENTURE
Dated as of August 25, 2010
to the Indenture dated as of March 19, 2004
U.S. BANK NATIONAL ASSOCIATION
Trustee
Trustee
THIRTY-THIRD SUPPLEMENTAL INDENTURE dated as of August 25, 2010 to that certain Indenture
dated as of March 19, 2004, (the Base Indenture, and, together with this Thirty-Third
Supplemental Indenture, the Indenture) between Peabody Energy Corporation, a Delaware corporation
(the Company) and U.S. Bank National Association, as Trustee (the Trustee).
The Company and the Trustee have heretofore executed the Base Indenture, a form of which has
been filed with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as Exhibit 4.23 to the Companys Registration Statement on Form S-3, as amended by
Post-Effective Amendment No. 1 (Registration No. 333-161179), providing for the issuance from time
to time of debt securities of the Company.
The Company has heretofore executed and delivered to the Trustee the First Supplemental
Indenture dated as of March 23, 2004 to the Base Indenture; as supplemented by the Second
Supplemental Indenture, dated as of April 22, 2004; Third Supplemental Indenture, dated as of
October 18, 2004; Fourth Supplemental Indenture, dated as of January 20, 2005; Fifth Supplemental
Indenture, dated as of September 30, 2005; Sixth Supplemental Indenture, dated as of January 20,
2006; Seventh Supplemental Indenture, dated as of June 13, 2006; Eighth Supplemental Indenture,
dated as of June 30, 2006; Ninth Supplemental Indenture, dated as of September 29, 2006; Tenth
Supplemental Indenture, dated as of October 12, 2006; Eleventh Supplemental Indenture, dated as of
October 12, 2006; Twelfth Supplemental Indenture, dated as of November 10, 2006; Thirteenth
Supplemental Indenture, dated as of November 10, 2006; Fourteenth Supplemental Indenture, dated as
of November 10, 2006; Fifteenth Supplemental Indenture, dated as of January 31, 2007; Sixteenth
Supplemental Indenture, dated as of January 31, 2007; Seventeenth Supplemental Indenture, dated as
of January 31, 2007; Eighteenth Supplemental Indenture, dated as of June 14, 2007; Nineteenth
Supplemental Indenture, dated as of June 14, 2007; Twentieth Supplemental Indenture, dated as of
June 14, 2007; Twenty-First Supplemental Indenture, dated as of November 14, 2007; Twenty-Second
Supplemental Indenture, dated as of November 14, 2007; Twenty-Third Supplemental Indenture, dated
as of November 14, 2007; Twenty-Fourth Supplemental Indenture, dated as of March 31, 2008;
Twenty-Fifth Supplemental Indenture, dated as of March 31, 2008; Twenty-Sixth Supplemental
Indenture, dated as of March 31, 2008; Twenty-Seventh Supplemental Indenture, dated as of November
5, 2008; Twenty-Eighth Supplemental Indenture, dated as of November 5, 2008; Twenty-Ninth
Supplemental Indenture, dated as of November 5, 2008; Thirtieth Supplemental Indenture, dated as of
March 13, 2009; Thirty-First Supplemental Indenture, dated as of March 13, 2009; and Thirty-Second
Supplemental Indenture, dated as of March 13, 2009.
The Company and the Trustee are hereby supplementing the Base Indenture pursuant to the
provisions of Section 9.01 of the Base Indenture to establish the form and terms and conditions of
the debt securities issued pursuant to this Thirty-Third Supplemental Indenture. The terms of this
Thirty-Third Supplemental Indenture shall supplement and be incorporated in their entirety with the
terms of the Base Indenture solely with respect to the debt securities issued pursuant to this
Thirty-Third Supplemental Indenture. To the extent any terms of this Thirty-Third Supplemental
Indenture are contrary to or duplicative of terms contained in the Base Indenture, the terms of
this Thirty-Third Supplemental Indenture shall be deemed to supersede the Base Indenture solely
with respect to the debt securities issued pursuant to this Thirty-Third Supplemental Indenture and
solely for the benefit of the Holders of such debt securities issued pursuant to this Thirty-Third
Supplemental Indenture.
The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders of the 6.500% Senior Notes due 2020 (the Notes).
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
So long as any of the Notes are Outstanding, the following definitions shall be applicable to
the Notes, shall be included as defined terms for all purposes under the Base Indenture with
respect to the Notes and, to the extent inconsistent with the definitions contained in Section 1.01
of the Base Indenture, shall replace such definitions with respect to the Notes. Capitalized terms
used but not defined herein shall have the meaning ascribed to such terms in the Base Indenture.
Additional Notes means an unlimited amount of Notes (other than Initial Notes) issued under
this Indenture in accordance with Sections 2.02 hereof.
Agent means any Registrar, Paying Agent or co-Registrar.
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer, redemption or exchange.
Attributable Debt means, in respect of a Sale and Lease-Back Transaction, at the time of
determination, the present value (discounted at a rate per annum equivalent to the rate inherent in
such lease (as determined in good faith by the Company), compounded semiannually) of the obligation
of the lessee for rental payments during the remaining term of the lease included in such
transaction, including any period for which such lease had been extended or may, at the option of
the lessor, be extended or, if earlier, until the earliest date on which the lessee may terminate
such lease upon payment of a penalty (in which case the obligation of the lessee for rental
payments will include such penalty), after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water and utility rates and similar
charges.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Business Day means any day that is not a Legal Holiday.
Capital Stock means (i) in the case of a corporation, corporate stock, (ii) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership 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.
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
Restricted Subsidiaries taken as a whole to any person (as such term is used in Section 13(d)(3)
of the Exchange Act) other than a Principal or a Related Party of a Principal (as defined below),
(ii) the adoption of a plan relating to the liquidation or dissolution of the Company, or (iii) the
consummation of any transaction (including, without limitation, any merger or consolidation) the
result of which is that any person (as defined above), 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 more than 50% of the Voting Stock of the
Company (measured by voting power rather than number of shares).
Notwithstanding the foregoing, a transaction effected to create a holding company will not be
deemed to involve a Change of Control if (i) the Company becomes a direct or indirect wholly-owned
subsidiary of such holding company and (ii) the holders of the voting stock of such holding company
immediately following that transaction are substantially the same as the holders of our voting
stock immediately prior to that transaction.
Change of Control Triggering Event means the occurrence of both a Change of Control and a
Rating Decline with respect to the Notes.
Clearstream means Clearstream Banking S.A. and any successor thereto.
Comparable Treasury Issue means U.S. Treasury security or securities selected by the
Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of those Notes.
Comparable Treasury Price means, with respect to any redemption date, (1) the average of the
Reference Treasury Dealer Quotations for that redemption date after excluding the highest and
lowest of such Reference
2
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, then the average of the available Reference Treasury Dealer Quotations
for the redemption date, or (3) if only one is available on that date, then that Reference Treasury
Dealer Quotation.
Consolidated Net Tangible Assets means, as of any particular time, the total of all the
assets appearing on the most recent consolidated balance sheet prepared in accordance with GAAP of
the Company and its Subsidiaries as of the end of the last fiscal quarter for which financial
information is available (less applicable reserves and other properly deductible items) after
deducting from such amount:
(a) all current liabilities, including current maturities of long-term debt and current
maturities of obligations under capital leases (other than any portion thereof maturing after, or
renewable or extendable at the option of the Company or the relevant Subsidiary beyond, twelve
months from the date of determination); and
(b) the total of the net book values of all assets of the Company and its Subsidiaries
properly classified as intangible assets in accordance with GAAP (including goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like intangible assets).
Corporate Trust Office of the Trustee shall be for purposes of surrender for registration of
transfer or exchange of Notes the offices of the Trustee located at 100 Wall Street, Suite 1600,
New York, New York, 10005 and for all other purposes shall be the office of the Trustee at 225
Asylum Street, 23rd Floor, Hartford, CT 06103.
Credit Agreement means that certain Fourth Amended and Restated Credit Agreement, dated as
of June 18, 2010 by and among the Company, as borrower, Bank of America, N.A., as administrative
agent, swing line lender and letter of credit issuer, and Banc of America Securities LLC, Citigroup
Global Markets Inc. and HSBC Securities (USA) Inc., as joint lead arrangers and joint book managers
and the other lenders party thereto, including any related notes, guarantees, collateral documents,
letters of credit, instruments and agreements executed in connection therewith (and any appendices,
annexes, exhibits or schedules to any of the foregoing), and in each case as amended, restated,
amended and restated, modified, supplemented, renewed, refunded, replaced, restructured, repaid or
refinanced from time to time (whether with the original agents, arrangers and lenders or other
agents, arrangers and lenders or otherwise, whether provided under the original credit agreement or
other Credit Facilities or otherwise, whether for a greater or lesser principal amount, whether
with greater or lesser interest and fees and whether or not including collateral or guarantors).
Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued and
authenticated under this Indenture shall be deemed to have been incurred on such date.
Credit Facilities means, with respect to the Company or any of its Restricted Subsidiaries,
one or more debt facilities (including, without limitation, the Credit Agreement) or commercial
paper facilities with banks or other institutional lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, amended and restated, modified, supplemented, renewed,
refunded, replaced, refinanced, repaid or restructured in whole or in part from time to time.
Custodian means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
Default means any event that is or with the passage of time or the giving of notice or both
would be an Event of Default.
Definitive Note means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, in the form of Exhibit A hereto except that such
Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges of
Interests in the Global Note attached thereto.
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, and
any and all successors
3
thereto appointed as depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.
Domestic Subsidiary means a Subsidiary that is (i) formed under the laws of the United
States of America or a state thereof or (ii) as of the date of determination, treated as a domestic
entity or a partnership or a division of a domestic entity for U.S. federal income tax purposes.
Euroclear means Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear system.
Fitch means Fitch Ratings Limited, or any successor to the rating agency business thereof.
Foreign Subsidiaries means Subsidiaries of the Company that are not Domestic Subsidiaries.
GAAP means generally accepted accounting principles, which are in effect on the date of the
Indenture. The sources of accounting principles and the framework for selecting the principles used
in the preparation of financial statements of nongovernmental entities that are presented in
conformity with GAAP in the United States, are set forth in the Financial Accounting Standards
Boards Accounting Standards Codification.
Global Note Legend means the legend set forth in Section 2.06(f), which is required to be
placed on all Global Notes issued under this Indenture.
Global Notes means a permanent global Note in the form of Exhibit A attached hereto that
bears the Global Note Legend and that has the Schedule of Exchanges of Interests in the Global
Note attached thereto, and that is deposited with or on behalf of and registered in the name of
the Depositary.
Government Securities means securities that are (i) direct obligations of the United States
for the payment of which its full faith and credit is pledged, or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States the
payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States, which, in either case under clauses (i) or (ii), are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Security or a specific payment of interest
on or principal of any such Government Security held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government Security or the specific
payment of interest on or principal of the Government Security evidenced by such depository
receipt.
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, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof), of all or any part of any Indebtedness.
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, in respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Company.
Indirect Participant means a Person who holds a beneficial interest in a Global Note through
a Participant.
4
Initial Notes means $650,000,000 in aggregate principal amount of Notes issued under this
Indenture on the date hereof.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by
Moodys, BBB- (or the equivalent) by S&P or BBB- (or the equivalent) by Fitch.
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 Corporate Trust Office of the Trustee is located or at a place
of payment with respect to the Notes are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may 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.
Moodys means Moodys Investors Service, Inc., or any successor to the rating agency
business thereof.
Non-Recourse Debt means Indebtedness to finance the creation, development, construction or
acquisition of properties or assets and any increases in or extensions, renewals or refinancings of
such Indebtedness; provided that the recourse of the lender thereof (including any agent, trustee,
receiver or other Person acting on behalf of such entity) in respect of such Indebtedness is
limited in all circumstances to the properties or assets created, developed, constructed or
acquired in respect of which such Indebtedness has been incurred, to the Capital Stock and debt
securities of the Restricted Subsidiary that acquires or owns such properties or assets and to the
receivables, inventory, equipment, chattels, contracts, intangibles and other assets, rights or
collateral connected with the properties or assets created, developed, constructed or acquired and
to which such lender has recourse.
Notes has the meaning assigned to it in the preamble to this Indenture.
Obligations means any principal, premium (if any), interest, penalties, fees, charges,
expenses, indemnifications, reimbursement obligations, damages, Guarantees and other liabilities
and amounts payable under the documentation governing any Indebtedness or in respect thereto.
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.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively, and, with respect to
The Depository Trust Company, shall include Euroclear and Clearstream.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Principal Property means any real property interests (all such interests forming an integral
part of a single development or operation being considered as one interest), including any mining
claims and leases, and any plants, buildings or other improvements thereon, and any part thereof,
located in the United States that is held by the Company or any Restricted Subsidiary and has a
gross book value (without deduction of any depreciation reserves), on the date as of which the
determination is being made, exceeding 1% of Consolidated Net Tangible Assets (other than any such
interest that the Board of Directors of the Company determines by resolution is not material to the
business of the Company and its Subsidiaries taken as a whole).
Principals means the executive officers of the Company as of the date hereof.
Rating Agency means each of S&P, Moodys and Fitch, or if S&P, Moodys, Fitch or all three
cease to make a rating on the applicable notes publicly available, a nationally recognized
statistical rating agency or agencies, as the case may be, selected by the Company (as certified by
a resolution of its Board of Directors) which shall be substituted for S&P, Moodys, Fitch, or all
three as the case may be.
5
Rating Date means the date which is 90 days prior to the earlier of:
(a) a Change of Control, and
(b) public notice of the occurrence of a Change of Control or of the intention of the Company
to effect a Change of Control.
Rating Decline means the occurrence of the following on, or within, 90 days after the
earlier of: (i) the date of public notice of the occurrence of a Change of Control or (ii) public
notice of the intention of the Company to effect a Change of Control (which 90-day period shall be
extended so long as the rating of the Notes is under publicly announced consideration for possible
downgrade by any of the Rating Agencies):
(a) if the Notes are assigned an Investment Grade Rating by all Rating Agencies on the Rating
Date, the rating of the Notes by one of the Rating Agencies shall be below an Investment Grade
Rating; or
(b) if the Notes are rated below an Investment Grade Rating by at least one of the Rating
Agencies on the Rating Date, the rating of the Notes by at least one of the other Rating Agencies
shall be decreased by one or more gradations (including gradations within rating categories as well
as between rating categories).
Reference Treasury Dealer means Banc of America Securities LLC, HSBC Securities (USA) Inc.
and Morgan Stanley & Co. Incorporated, or their affiliates, plus one other Primary Treasury Dealer
(as defined in this paragraph) appointed by the Company, and their respective successors; provided,
however, that if any of the foregoing ceases to be a primary U.S. Government securities dealer in
The City of New York (a Primary Treasury Dealer), the Company shall substitute therefor another
Primary Treasury Dealer, if available.
Reference Treasury Dealer Quotation means, with respect to the Reference Treasury Dealer and
any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Trustee by that Reference Treasury Dealer at 3:30 p.m. (New York time) on the
third Business Day preceding that redemption date.
Related Party with respect to any Principal means (A) any spouse or immediate family member
of such Principal or (B) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more controlling interest
of which consist of such Principal and/or such other Persons referred to in the immediately
preceding clause (A).
Responsible Officer, when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers 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 Subsidiary means any Subsidiary (a) substantially all of the property of which is
located in the United States or substantially all of the business of which is carried on, in the
United States and that owns or leases a Principal Property or (b) is engaged primarily in the
business of owning or holding Capital Stock of one or more Restricted Subsidiaries.
S&P means Standard & Poors Rating Group, Inc., or any successor to the rating agency
business thereof.
Sale and Lease-Back Transaction means any arrangement with any person providing for the
leasing by the Company or any Restricted Subsidiary of any Principal Property, whether owned at the
date of the issuance of the notes or thereafter acquired, that has been or is to be sold or
transferred by the Company or any Restricted Subsidiary to such person with the intention of taking
back a lease of this property.
SEC means the Securities and Exchange Commission.
6
Securities Act means the Securities Act of 1933, as amended.
Significant Subsidiary means any Subsidiary that would be a significant subsidiary as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.
Specified Subsidiaries means Kentucky United Coal, LLC, Midwest Coal Reserves of Kentucky,
LLC, Mustang Clean Energy, LLC, Newhall Funding Company, P&L Receivables Company LLC, Peabody
China, LLC, Peabody Mongolia, LLC, PG Investments Six, LLC, Sterling Centennial Insurance Corp. and
United Minerals Company, LLC.
Subsidiary means, with respect to any Person, (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
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)
and (ii) any partnership (a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination thereof).
Subsidiary Guarantee means the Guarantee of the Notes by each of the Subsidiary Guarantors
pursuant to this Indenture and any additional Guarantee of the Notes to be executed by any of the
Companys Subsidiaries pursuant to Section 4.16.
Subsidiary Guarantors means all of the Companys existing Domestic Subsidiaries, except for
the Specified Subsidiaries, and any other Subsidiary that executes a Subsidiary Guarantee in
accordance with the provisions of this Indenture, and their respective successors and assigns.
TIA means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa- 77bbbb) as in effect on the
date on which this Indenture is qualified under the TIA.
Treasury Rate means with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such redemption date.
Trustee means the party named as such above until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Voting Stock of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.
Section 1.02. Other Definitions.
Terms | Defined in Section | |||
Authentication Order |
2.02 | |||
Benefited Party |
9.01 | |||
Change of Control Offer |
4.15 | |||
Change of Control Payment |
4.15 | |||
Change of Control Payment Date |
4.15 | |||
Covenant Defeasance |
7.03 | |||
DTC |
2.03 | |||
Event of Default |
6.01 | |||
Legal Defeasance |
7.02 | |||
Lien |
4.12 | |||
Paying Agent |
2.03 | |||
Registrar |
2.03 |
7
Section 1.03. 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:
obligor on the Notes and the Subsidiary Guarantees means the Company and the Subsidiary
Guarantors, respectively, and any successor obligor upon the Notes and the Subsidiary 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 SEC rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) 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 SEC from time to time.
Section 1.05. Miscellaneous.
Without implied limitation, it is hereby expressly acknowledged that the Trustee shall have
and enjoy the protections, immunities, rights and indemnities set forth in Article Six of the Base
Indenture, in connection with the administration of, and performance under, the Thirty-Third
Supplemental Indenture, all of the terms of which remain in full force and effect.
ARTICLE II
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustees certificate of authentication shall be substantially
in the form of Exhibit A hereto, which is hereby incorporated in and expressly made part of this
Indenture. 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 shall be in
denominations of $2,000 and integral multiples of $1,000. The terms and provisions contained in
the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture,
8
expressly agree to such terms and provisions and to be bound thereby. However, to the extent
any provision of any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Form of Notes. The Notes shall be issued initially in global form and shall be
substantially in the form of Exhibit A 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.
(c) Book-Entry Provisions. This Section 2.01(c) shall only apply to Global Notes deposited
with the Trustee, as custodian for the Depositary. Participants and Indirect Participants shall
have no rights under this Indenture with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as the custodian for the Depositary or under such Global Note, and the
Depositary shall be treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants or Indirect Participants,
the Applicable Procedures or the operation of customary practices of the Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global Note.
Section 2.02. Execution and Authentication.
(a) One Officer shall sign the Notes for the Company by manual or facsimile signature.
(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.
(c) 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.
(d) The Trustee shall, upon a written order of the Company signed by an Officer (an
Authentication Order), authenticate the Notes for original issue.
(e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
the Notes. An authenticating agent may authenticate the 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 Holders or an
Affiliate of the Company.
(f) The Company may issue an unlimited amount of Additional Notes from time to time after the
offering of the Initial Notes. The Initial Notes and any Additional Notes subsequently issued
under this Indenture shall be treated as a single class for all purposes under this Indenture,
including, without limitation, waivers, amendments, redemptions and offers to purchase.
Section 2.03. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (Registrar) and 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
9
appoint one or more co-Registrars and one or more additional paying agents. The term
Registrar includes any co-Registrar and 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. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.
(b) The Company initially appoints The Depository Trust Company (DTC) to act as Depositary
with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global 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 will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and will
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 (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. 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.
(a) 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 § 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 § 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 will be exchanged
by the Company for Definitive Notes if (1) 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
(2) 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 any of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in denominations of $2,000 and integral multiples of $1,000 and 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 3.06 and Section 3.07 of the Base Indenture. 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 Sections 3.06 or Section 3.07 of the Base Indenture, 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); provided, however, that
beneficial interests in a Global Note may be transferred and exchanged as provided in Section
2.06(b) or (c) hereof.
10
(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.
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, in accordance with the Applicable
Procedures. 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).
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes. The holder of a
beneficial interest in a Global Note may exchange such beneficial interest for a Definitive Note or
transfer such beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note only in which event such owner of such beneficial interest shall instruct the
Depository (or shall cause the appropriate participant to direct the Depository) in accordance with
the Applicable Procedures to instruct the Trustee to reduce the aggregate principal amount of the
Global Note by the applicable amount of such exchange or transfer and to issue in exchange
therefore a Definitive Note or Notes in such aggregate amount and registered as provided in such
instruction; and upon the Trustees receipt of such instruction from the Depository (or from the
applicable Participant or beneficial owner pursuant to the Depositorys proxy procedures), 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, in both cases in accordance with Section 2.02 hereof, to the Person
designated in such instruction 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) 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 mail or 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 written request for such an exchange or transfer
together with surrender of the Definitive Note to be exchanged or transferred, (and, accompanied by
a written instrument or instruments of transfer as provided in Section 2.06(e) hereof, and subject
to the Applicable Procedures, 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 pursuant to
Section 2.06(g) hereof.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holders 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.
(f) Global Note 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 2.06 OF THE THIRTY-THIRD SUPPLEMENTAL INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
THIRTY-THIRD SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 3.10 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS
11
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
(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 cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with Section 3.10 of the Base
Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will 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 will 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 Global Notes
and Definitive Notes, and the Trustee shall authenticate Global Notes and Definitive Notes upon the
Companys order (including an Authentication Order given pursuant to Section 2.02) or at the
Registrars request (in connection with any transfer or exchange of Notes pursuant to this Section
2.06).
(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 3.06, 4.15 and 8.05 hereof and Section 3.07
of the Base Indenture).
(iii) 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.
(iv) Neither the Registrar nor the Company shall 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.
(v) 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.
(vi) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02 hereof.
12
(vii) 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.
(viii) The Trustee is hereby authorized to enter into a letter of representation with the
Depositary in the form provided by the Company and to act in accordance with such letter.
(ix) Notwithstanding anything contained herein to the contrary, neither the Trustee nor the
Registrar shall be responsible for ascertaining whether any purchase or transfer complies with the
registration provisions of or exemptions from the Securities Act or other state, federal securities
laws that may be applicable; provided, however, that if a certificate is specifically required by
the express terms of this Section 2.06 to be delivered to a Trustee by a purchaser or required by
the express terms of this Section 2.06 to be delivered to a Trustee by a purchaser or transferee of
a Note, the Trustee shall be under a duty to receive and examine the same to determine whether it
conforms on its face to the requirements of this Section 2.06 and shall promptly notify the party
delivering the same if such transfer does not comply with such terms.
Section 2.07. Outstanding Notes.
(a) The Notes Outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled 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 as not Outstanding. Except as set forth in Section 2.08 hereof, a Note
does not cease to be Outstanding because the Company or an Affiliate of the Company holds the Note.
(b) If a Note is replaced pursuant to Section 3.06 of the Base Indenture, it ceases to be
Outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be Outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
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 2.08. 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 by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, 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 that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
ARTICLE III
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the redemption provisions of Section 3.07
hereof, it shall furnish to the Trustee, at least 45 days (unless a later date is agreed to by the
Trustee at its option) but not more than 60 days before a redemption date, an Officers Certificate
setting forth (i) the clause of this Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Notes to be redeemed, (iv) the redemption price
and (v) the CUSIP numbers of the Notes to be redeemed.
13
Section 3.02. Selection of Notes to be Redeemed.
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 by such
method as the Trustee deems fair and appropriate (subject in any case to the Applicable Procedures,
with respect to any Global Notes). In the event of partial redemption by lot, the particular Notes
to be redeemed shall be selected, unless otherwise provided herein (or as otherwise provided in the
Applicable Procedures, if applicable), at least 30 but no more than 60 days prior to the redemption
date by the Trustee from the Outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the 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 $2,000 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.
At least 30 days but not more than 60 days before the applicable 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, except that redemption notices may be mailed
more than 60 days prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes pursuant to Article VII hereof or a satisfaction and discharge of this
Indenture pursuant to Article IV of the Base Indenture.
The notice shall identify the Notes to be redeemed, including the CUSIP numbers, and shall
state:
(a) the redemption date;
(b) a calculation of the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal amount of such Note 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, if any, on
Notes called for redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes 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.
At the Companys written request, the Trustee shall give the notice of redemption in the
Companys name and at its expense; provided, however, that the Company shall have delivered to the
Trustee, at least 45 days, or such shorter period allowed by the Trustee, prior to the redemption
date, an Officers Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in this Section 3.03.
14
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 become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price.
One Business Day prior to 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 interest on all
Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the
Company 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, and accrued interest on, all Notes to be
redeemed.
If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed 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 date until such principal 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.
On and after the redemption date, unless the Company defaults in depositing money sufficient
to pay the redemption price and accrued interest on all of Notes to be redeemed, interest shall
cease to accrue on Notes or portions thereof called for redemption.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the
Companys 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) The Notes will be subject to redemption at any time at the option of the Company, in whole
at any time or in part from time to time, upon notice given in accordance with the provisions of
Section 3.03 hereof, at a redemption price equal to the greater of (1) 100% of the principal amount
of the Notes to be redeemed and (2) the sum of the present values of the remaining principal and
interest payments on the applicable Notes (exclusive of interest accrued to the date of redemption)
discounted to the redemption date, calculated on a semi-annual basis (assuming a 360-day year of
twelve 30-day months), at the Treasury Rate plus 50 basis points, together with accrued and unpaid
interest, if any, to the date of redemption.
(b) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Notes.
The Company or a Subsidiary Guarantor shall pay or cause to be paid the principal of, premium,
if any, and interest, if any, on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and
15
interest, if any, shall be considered paid on the date due if the Paying Agent, if other than
the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest, if any, then due.
The Company or a Subsidiary Guarantor shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then
applicable interest rate on the Notes to the extent lawful; it 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 same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-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.
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.
The Company hereby designates the office of the Trustee located at 100 Wall Street, Suite
1600, New York, New York 10005 as one such office or agency of the Company in accordance with
Section 2.03. Notices or demands with respect to the Notes and this Indenture shall be delivered
to the Trustee at its Corporate Trust Office at 225 Asylum Street, 23rd Floor, Hartford,
Connecticut 06103.
Section 4.03. [Intentionally Omitted.]
Section 4.04. Compliance Certificate.
(a) The Company and each Subsidiary Guarantor (to the extent that such Subsidiary Guarantor is
so required under the TIA) shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers 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 Officer with a view to determining whether the Company 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 the Company 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 or interest, if
any, 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) The Company shall, so long as any of the Notes are Outstanding, deliver to the Trustee, as
soon as possible, but in no event later than five days after any Officer becoming aware of any
Default or Event of Default,
16
an Officers 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, and shall cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each of the Subsidiary Guarantors covenants (to the extent that it 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 Subsidiary Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants that it 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. [Intentionally Omitted]
Section 4.08. [Intentionally Omitted]
Section 4.09. [Intentionally Omitted]
Section 4.10. [Intentionally Omitted]
Section 4.11. [Intentionally Omitted]
Section 4.12. Liens.
Except as otherwise provided below pursuant to this Section 4.12, the Company shall not, and
shall not permit any Restricted Subsidiary to, issue, incur, create, assume, guarantee or otherwise
have outstanding any Indebtedness secured by any mortgage, deed of trust, security interest,
pledge, lien, charge or other encumbrance, each a Lien and collectively Liens, upon any
Principal Property or shares of Capital Stock or Indebtedness of a Restricted Subsidiary unless the
Notes (and, at the Companys option, any other indebtedness or guarantee ranking equally with the
Notes) are secured equally and ratably with (or at the Companys option, prior to) such secured
Indebtedness. This restriction will not apply to Indebtedness secured by:
(a) Liens on property, shares of Capital Stock or Indebtedness of a Person existing at the
time it becomes a Restricted Subsidiary or Liens on any Principal Property created prior to the
time such property became a Principal Property, provided, in each case, that such Liens were not
created in anticipation of the transaction in which such entity becomes a Restricted Subsidiary;
(b) Liens on property (and on any proceeds from the disposition of such property) acquired by
the Company or a Restricted Subsidiary existing at the time of acquisition by the Company or a
Restricted Subsidiary, whether or not assumed by the Company or such Restricted Subsidiary;
provided that no such Lien will extend to any other Principal Property of the Company or any
Restricted Subsidiary;
(c) Liens on property (and on any proceeds from the disposition of such property) acquired by
the Company or a Restricted Subsidiary and created prior to, at the time of, or within 360 days
after the acquisition of such property, or the completion of construction, the completion of
improvements or the commencement of substantial commercial operation of such property, for the
purpose of financing all or any part of the purchase price of such property, such construction or
the making of such improvements; provided that such Liens will not extend to
17
any other Principal Property of the Company or the Companys Restricted Subsidiaries other than, in
the case of such construction or improvement, any theretofore unimproved real property on which the
Principal Property so constructed, or the improvement, is located;
(d) Liens in favor of the Company or a Restricted Subsidiary to secure Indebtedness owing to
the Company or a Restricted Subsidiary;
(e) Liens existing on the date hereof;
(f) Liens on property (and on any proceeds from the disposition of such property), shares of
Capital Stock or Indebtedness of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary or at the time of a sale, lease or other
disposition of all or substantially all of the properties of a Person as an entirety or
substantially as an entirety to the Company or any Restricted Subsidiary, provided that the Lien
was not incurred in contemplation of such merger or consolidation or sale, lease or other
disposition;
(g) Liens on property of the Company or the Companys Restricted Subsidiaries in favor of
governmental bodies to secure payments of amounts owed under any contract or statute;
(h) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision as shall be required
in conformity with GAAP shall have been made therefor;
(i) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary course of
business;
(j) Liens incurred or deposits made in the ordinary course of business in connection with
workers compensation, unemployment insurance or other kinds of social security;
(k) Judgment Liens so long as any appropriate legal proceeding that may have been duly
initiated for the review of such judgment shall not have been finally terminated or the period
within which such legal proceeding may be initiated shall not have expired;
(l) Liens created in connection with a project financed with, and created to secure,
Non-Recourse Debt; and
(m) Any extension, renewal or replacement of any Lien referred to above or any Indebtedness
secured by that Lien, provided that such extension, renewal or replacement Lien will secure no
larger an amount of Indebtedness than that existing at the time of such extension, renewal or
replacement and will be limited to all or part of the same property and improvements thereon which
secured the Loan extended, renewed or replaced.
In addition, the Company or any Restricted Subsidiary may issue, incur, create, assume or
guarantee Indebtedness secured by a Lien which would otherwise be subject to the foregoing
restrictions without equally and ratably securing the notes, provided that after giving effect to
the Indebtedness secured by such Lien, the aggregate principal amount of all Indebtedness so
secured by Liens (not including Liens permitted above) and the Attributable Debt of Sale and
Lease-Back Transactions permitted by the provisions described in Section 4.19 of this Indenture
does not exceed 15% of Consolidated Net Tangible Assets.
Section 4.13. [Intentionally Omitted]
Section 4.14. Corporate Existence.
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
18
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 4.15. Offer To Repurchase Upon Change of Control Triggering Event.
(a) Upon the occurrence of a Change of Control Triggering Event, each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral
multiple thereof) of such Holders Notes pursuant to the offer described below (the Change of
Control Offer) at an offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase (the Change of Control
Payment). Within ten days following any Change of Control Triggering Event, the Company shall
mail a notice to each holder describing the transaction or transactions that constitute the Change
of Control Triggering Event and offering to repurchase notes on the date specified in such notice,
which date 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), pursuant to the procedures required by this
Indenture and described in such notice. 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 the Notes as a result
of a Change of Control Triggering Event. To the extent that the provisions of any securities laws
or regulations conflict with the Change of Control Triggering Event provisions of this Indenture,
the Company shall comply with the applicable securities laws and regulations and will not be deemed
to have breached its obligations under the Change of Control Triggering Event provisions of this
Indenture by virtue of such conflict.
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the Change of Control
Offer, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3) deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the Company. The Paying Agent
will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such
Notes, and the Trustee will 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 will be in a principal amount of $2,000 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 Triggering Event provisions described in Sections 4.15(a) and (b) shall
be applicable whether or not any other provisions of this Indenture are applicable.
(c) Notwithstanding anything to the contrary in this Section 4.15, the Company shall not be
required to make a Change of Control Offer upon a Change of Control Triggering Event if a third
party makes the Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth herein applicable to a Change of Control Offer made by the Company
and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or if
the Company exercises its option to purchase the Notes. A Change of Control Offer may be made in
advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement
is in place for the Change of Control at the time of making of the Change of Control Offer.
Section 4.16. Additional Subsidiary Guarantees.
If the Company or any of its Domestic Subsidiaries shall acquire or create another Domestic
Subsidiary after the date hereof and such Domestic Subsidiary provides a guarantee under the Credit
Agreement, then such newly acquired or created Domestic Subsidiary shall execute a supplemental
Indenture in form and substance
substantially similar to Exhibit C attached hereto providing that such Domestic Subsidiary
shall become a Subsidiary Guarantor under this Indenture.
19
Section 4.17. [Intentionally Omitted]
Section 4.18. [Intentionally Omitted]
Section 4.19. Limitation on Sale and Lease-Back Transactions.
Except as otherwise provided below, the Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Sale and Lease-Back Transactions, other than any such transaction
involving a lease for a term of not more than three years or any such transaction between the
Company and one of its Restricted Subsidiaries or between Restricted Subsidiaries, unless at the
effective time of such transaction:
(a) the Company or the Restricted Subsidiary is entitled, pursuant to Section 4.12 without
equally and ratably securing the Notes, to incur Indebtedness secured by a Lien in an amount at
least equal to the Attributable Debt with respect to such Sale and Lease-Back Transaction; or
(b) the Company or the Restricted Subsidiary applies, within 360 days of the closing date of
the Sale and Lease-Back Transaction, an amount equal to the greater of (1) the net proceeds of such
sale or (2) the Attributable Debt with respect to such Sale and Lease-Back Transaction, to either
(or a combination of) (x) the prepayment, defeasance or retirement (other than any mandatory
retirement, mandatory prepayment or sinking fund payment or payment at maturity) of Indebtedness of
the Company or a Restricted Subsidiary maturing after, or renewable or extendable at the option of
the Company or the relevant Restricted Subsidiary beyond, twelve months from the date of
determination (other than debt subordinate to the Notes or any Guarantee or debt to the Company or
a Restricted Subsidiary); provided, however, the amount to be applied to the prepayment or
retirement of any such Indebtedness shall be reduced by the principal amount of any debt securities
of the Company or the Companys Restricted Subsidiaries delivered within 360 days after such Sale
and Lease-Back Transaction to the Trustee or Paying Agent for retirement and cancellation; or (y)
the purchase, construction or development of other property, facilities or equipment.
ARTICLE V
SUCCESSORS
Section 5.01. [Intentionally Omitted]
Section 5.02. [Intentionally Omitted]
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An Event of Default with respect to the Notes (and for purposes of this Indenture) occurs
if:
(a) the Company defaults in the payment when due of interest on the Notes and such default
continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or premium, if any, on the
Notes when the same becomes due and payable at maturity, upon redemption (including in connection
with an offer to purchase) or otherwise;
(c) the Company or any of its Subsidiaries fails to make the offer required or to purchase any
of the Notes as required by Section 4.15 hereof;
20
(d) the Company or any of its Subsidiaries fails to comply for 60 days after written notice to
the Company by the Trustee or a Holder with any covenant, representation, warranty or other
agreement in this Indenture or the Notes;
(e) a default occurs 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
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of the
Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after
the date of this Indenture, which default results in the acceleration of such Indebtedness prior to
its express maturity and, in each case, the principal amount of such Indebtedness aggregates $75.0
million or more;
(f) except as permitted by this Indenture, any Subsidiary Guarantee of any Significant
Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary)
is 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 Subsidiary Guarantor that is a Significant Subsidiary, or any
Person acting on behalf of any Subsidiary Guarantor that is a Significant Subsidiary, shall deny or
disaffirm its obligations under such Subsidiary Guarantee;
(g) the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a custodian of it or for all or substantially all
of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due; and
(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant Subsidiaries that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Company or any of its Significant Subsidiaries that
are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary or for all or substantially all of the property of
the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary; or
(iii) orders the liquidation of the Company or any of its Significant Subsidiaries that
are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days.
21
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in clause (g) or (h) of
Section 6.01 hereof with respect to the Company, any Significant Subsidiary that is a Restricted
Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary) 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. Upon any such declaration, the Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (g) or (h) of Section
6.01 hereof occurs, all Outstanding Notes shall become due and payable without further action or
notice. The Holders of a majority in aggregate principal amount of the then Outstanding Notes by
written notice to the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
Section 6.03. Other Remedies.
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, if any, on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
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.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then Outstanding
Notes by written notice to the Trustee may on behalf of the Holders of all of the Notes waive an
existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes;
provided, however, that after any acceleration, but before a judgment or decree based on
acceleration is obtained by the Trustee, the Holders of a majority in aggregate principal amount of
the Notes then Outstanding may rescind and annul such acceleration if all Events of Default, other
than the nonpayment of accelerated principal, premium, or interest, have been cured or waived as
provided in this Indenture. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; provided, however, that no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.05. Control by Majority.
Subject to Section 6.01 of the Base Indenture, in case an Event of Default shall occur and be
continuing, the Trustee will be under no obligation to exercise any of its rights or powers under
this Indenture at the request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity against any loss, liability or expense. Subject to
Section 6.07 of the Base Indenture, the Holders of a majority in aggregate principal amount of the
Notes then Outstanding will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Notes. Notwithstanding the foregoing, 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.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;
22
(b) 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;
(c) 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;
(d) 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
(e) during such 60-day period the Holders of a majority in aggregate principal amount of the
then Outstanding Notes do not give the Trustee a direction inconsistent with the request.
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 Note, on or after the respective
due dates expressed in the Note (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.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) 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, if any, 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
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable 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 6.07 of the Base Indenture. 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 6.07 of the
Base Indenture 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.
23
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in
the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 6.07 of the Base
Indenture, including payment of all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;
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; and
Third: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of the 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 aggregate principal
amount of the then Outstanding Notes.
ARTICLE VII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01. 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 Officers Certificate, at any time, elect to have either Section 7.02 or 7.03 hereof be
applied to all Outstanding Notes upon compliance with the conditions set forth below in this
Article VII.
Section 7.02. Legal Defeasance and Discharge.
Upon the Companys exercise under Section 7.01 hereof of the option applicable to this Section
7.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 7.04
hereof, be deemed to have been discharged from its obligations with respect to all Outstanding
Notes and to have each Subsidiary Guarantors obligation discharged with respect to its Subsidiary
Guarantee 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 7.05 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 Notes to receive solely out of the trust fund described in Section 7.04
hereof, and as more fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest if any, on such Notes when such payments are due, (b) the Companys
obligations with respect to such
24
Notes under Article II and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Companys and the Subsidiary Guarantors obligations in
connection therewith and (d) this Article VII. Subject to compliance with this Article VII, the
Company may exercise its option under this Section 7.02 notwithstanding the prior exercise of its
option under Section 7.03 hereof.
Section 7.03. Covenant Defeasance.
Upon the Companys exercise under Section 7.01 hereof of the option applicable to this Section
7.03, the Company and each Subsidiary Guarantor shall, subject to the satisfaction of the
conditions set forth in Section 7.04 hereof, be released from their obligations under the covenants
contained in Sections 4.12, 4.14, 4.15, 4.16 and 4.19 hereof with respect to the Outstanding Notes
on and after the date the conditions set forth in Section 7.04 hereof 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 and each Subsidiary Guarantor 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 Companys exercise under Section 7.01 hereof of
the option applicable to this Section 7.03, subject to the satisfaction of the conditions set forth
in Section 7.04 hereof, Sections 6.01(d) and 6.01(e) hereof shall not constitute Events of Default.
Section 7.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 7.02 or 7.03 hereof
to the Outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination of cash in U.S.
dollars and Government Securities, in amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, interest or premium, if
any, 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;
(b) in the case of an election under Section 7.02 hereof, the Company shall deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions
and exclusions) 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 of this Indenture, 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 will confirm that, the Holders of the Outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance
and will 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 Legal Defeasance had not occurred;
(c) in the case of an election under Section 7.03 hereof, the Company shall deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions
and exclusions) confirming that the Holders of the Outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will 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;
25
(d) 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 incurrence of
Indebtedness all or a portion of the proceeds of which will be used to defease the Notes pursuant
to this Article VII concurrently with such incurrence or the granting of Liens in connection
therewith) or insofar as Sections 6.01(f) or 6.01(g) hereof are concerned, at any time in the
period ending on the effective date of such defeasance;
(e) 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 or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee, at or prior to the effective date of such
defeasance, an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the deposit and assuming that no
Holder is one of the Companys insiders under applicable bankruptcy law and subject to customary
exceptions and exclusions, after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors rights generally;
(g) the Company shall have delivered to the Trustee an Officers Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 7.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 7.06 hereof, all money and Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying Trustee, collectively for purposes of this
Section 7.05, the Trustee) pursuant to Section 7.04 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 and the Subsidiary Guarantors shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or Government Securities deposited
pursuant to Section 7.04 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 VII to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or Government Securities
held by it as provided in Section 7.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 7.04(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 7.06. Repayment to 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, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a secured creditor,
look only to the Company for payment thereof, and all liability of the Trustee or
26
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 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 will be repaid to the Company.
Section 7.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or Government
Securities in accordance with Section 7.02 or 7.03 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 Companys obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.02 or 7.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 7.02 or 7.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or 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 VIII
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. Without Consent of Holders of Notes.
Notwithstanding Section 8.02 of this Indenture, the Company, the Subsidiary Guarantors and the
Trustee may amend or supplement this Indenture, the Subsidiary Guarantees or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for the assumption by a successor corporation of the obligations of the Company
under this Indenture in the case of a merger or consolidation or sale of all or substantially all
of the Companys assets;
(c) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(d) 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 such Holder;
(e) to make any change to comply with any requirement of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to provide for the issuance of Additional Notes in accordance with the limitations set
forth in this Indenture as of the date hereof; or
(g) to allow any Subsidiary Guarantor to execute a supplemental Indenture for the purpose of
providing a Subsidiary Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 6.03 of the Base Indenture, the Trustee shall join
with the Company and the Subsidiary Guarantors in the execution of any amended or supplemental
Indenture 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
27
Trustee shall not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 8.02. With Consent of Holders of Notes.
Except as provided below in this Section 8.02, the Company and the Trustee may amend or
supplement this Indenture (including Section 4.15 hereof), the Subsidiary Guarantees and the Notes
with the consent of the Holders of at least a majority in aggregate principal amount of the Notes,
including Additional Notes, if any, then Outstanding voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (except a continuing Default or Event of Default in the payment of interest, premium, if
any, or the principal of, the Notes, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this Indenture or the Notes may be waived
with the consent of the Holders of a majority in aggregate principal amount of the Notes, including
Additional Notes, if any, then Outstanding voting as a single class (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.07 hereof shall determine which Notes are considered to be Outstanding for
purposes of this Section 8.02.
Upon the request of the Company accompanied by a resolution of the Board of Directors
authorizing the execution of any such amended or supplemental Indenture, 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 6.03 of the Base
Indenture, the Trustee shall join with the Company in the execution of such amended or supplemental
Indenture, unless such amended or supplemental Indenture directly affects the Trustees own rights,
duties or immunities under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or supplemental Indenture.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have become effective by
virtue of the requisite percentage having been obtained prior to the date which is 90 days after
such record date, any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.
It shall not be necessary for the consent of the Holders 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.
After an amendment, supplement or waiver under this Section 8.02 becomes effective, the
Company shall mail to the Holders to such Holders address appearing in the Security Register 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. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes, including Additional Notes,
if any, then Outstanding voting as a single class may waive compliance in a particular instance by
the Company with any provision of this Indenture or the Notes. Without the consent of each Holder
affected, an amendment or waiver under this Section 8.02 may not (with respect to any Notes held by
a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or change the optional
redemption dates (other than any notice provision) or optional redemption prices from those
provided in Section 3.07 hereof;
(c) make any change in the provisions of Section 4.15;
28
(d) reduce the rate of or change the time for payment of interest on any Note;
(e) waive a Default or Event of Default in the payment of principal of, or interest or premium
on the Notes (except a 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);
(f) make any Note payable in a currency other than that stated in the Notes;
(g) make any change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of, or interest or premium on
the Notes;
(h) waive a redemption payment with respect to any Note other than a payment required by
Section 4.15 hereof;
(i) release any Subsidiary Guarantor from any of its obligations under its Subsidiary
Guarantee or this Indenture, except in accordance with the terms hereof; or
(j) make any change in the preceding amendment and waiver provisions.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture 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 of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note 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. An amendment, supplement or
waiver becomes effective in accordance with its terms and 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, upon receipt of an Authentication Order, 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 VIII if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental
Indenture until the Board of Directors approves it. In executing any amended or supplemental
Indenture, the Trustee shall be entitled to receive and (subject to Section 6.01 of the Base
Indenture) shall be fully protected in relying upon an Officers Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental Indenture is authorized or
permitted by this Indenture and that such amended or supplemental Indenture is the legal, valid and
binding obligations of the Company enforceable against it in accordance with its terms, subject to
customary exceptions and that such amended or supplemental Indenture complies with the provisions
hereof (including Section 8.03).
29
ARTICLE IX
SUBSIDIARY GUARANTEES
SUBSIDIARY GUARANTEES
Section 9.01. Guarantee.
Subject to this Article IX, each of the Subsidiary 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 will 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 will 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 will 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 Subsidiary Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee
of payment and not a guarantee of collection.
Each Subsidiary Guarantor hereby agrees that its obligations with regard to this Subsidiary
Guarantee shall be joint and several, unconditional, irrespective of the validity or enforceability
of the Notes or the obligations of the Company under this Indenture, the absence of any action to
enforce the same, the recovery of any judgment against the Company or any other obligor with
respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the
Notes, any action to enforce the same or any other circumstances (other than complete performance)
which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary
Guarantor. Each Subsidiary Guarantor further, to the extent permitted by law, waives and
relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees
not to assert or take advantage of any such claims, rights or remedies, including but not limited
to: (a) any right to require any of the Trustee, the Holders or the Company (each a Benefited
Party), as a condition of payment or performance by such Subsidiary Guarantor, to (1) proceed
against the Company, any other guarantor (including any other Subsidiary Guarantor) of the
Obligations under the Subsidiary Guarantees or any other Person, (2) proceed against or exhaust any
security held from the Company, any such other guarantor or any other Person, (3) proceed against
or have resort to any balance of any deposit account or credit on the books of any Benefited Party
in favor of the Company or any other Person, or (4) pursue any other remedy in the power of any
Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority
or any disability or other defense of the Company including any defense based on or arising out of
the lack of validity or the unenforceability of the Obligations under the Subsidiary Guarantees or
any agreement or instrument relating thereto or by reason of the cessation of the liability of the
Company from any cause other than payment in full of the Obligations under the Subsidiary
Guarantees; (c) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more burdensome than
that of the principal; (d) any defense based upon any Benefited Partys errors or omissions in the
administration of the Obligations under the Subsidiary Guarantees, except behavior which amounts to
bad faith; (e)(1) any principles or provisions of law, statutory or otherwise, which are or might
be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of
such Subsidiary Guarantors obligations hereunder, (2) the benefit of any statute of limitations
affecting such Subsidiary Guarantors liability hereunder or the enforcement hereof, (3) any rights
to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that
any Benefited Party protect, secure, perfect or insure any security interest or lien or any
property subject thereto; (f) notices, demands, presentations, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary
Guarantees, notices of default under the Notes or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Obligations under the Subsidiary
Guarantees or any agreement related thereto, and notices of any extension of credit to the Company
and any right to consent to any thereof; (g) to the extent permitted under applicable law, the
benefits of any One Action rule and (h) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of the Subsidiary Guarantees. Each Subsidiary Guarantor hereby covenants
that its Subsidiary Guarantee shall not be discharged except by complete performance of the
obligations contained in its Subsidiary Guarantee and this Indenture.
30
If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
Each Subsidiary 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 Subsidiary Guarantor further agrees that, as between the
Subsidiary 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 Section 6.02 hereof
for the purposes of this Subsidiary 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 Section 6.02
hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by
the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors
shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Section 9.02. Limitation on Subsidiary Guarantor Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary 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 Subsidiary Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee and this Article IX shall be limited to
the maximum amount as will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Subsidiary 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 Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under this Article IX, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
Section 9.03. Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 9.01, each Subsidiary Guarantor
hereby agrees that a notation of such Subsidiary Guarantee substantially in the form included in
Exhibit B shall be endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on behalf of such Subsidiary
Guarantor by its President or one of its Vice Presidents.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
9.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the
Subsidiary Guarantors.
In the event that the Company creates or acquires any new Subsidiaries subsequent to the date
of this Indenture, if required by Section 4.16 hereof, the Company shall cause such Subsidiaries to
execute supplemental Indentures to this Indenture and Subsidiary Guarantees in accordance with
Section 4.16 hereof and this Article IX, to the extent applicable.
31
Section 9.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
No Subsidiary Guarantor may consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person) another corporation, Person or entity whether or not
affiliated with such Subsidiary Guarantor unless:
(a) subject to Section 9.05 hereof, the Person formed by or surviving any such consolidation
or merger (if other than a Subsidiary Guarantor or the Company) unconditionally assumes all the
obligations of such Subsidiary Guarantor pursuant to a supplemental Indenture in form and substance
reasonably satisfactory to the Trustee, under the Notes, this Indenture and the Subsidiary
Guarantee on the terms set forth herein or therein; and
(b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing.
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 Subsidiary 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 Subsidiary Guarantor, such successor Person shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor.
Such successor Person thereupon may cause to be signed any or all of the Subsidiary 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 Subsidiary Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles IV and V hereof, and notwithstanding clauses (a) and (b)
above, nothing contained in this Indenture or in any of the Notes shall prevent any consolidation
or merger of a Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor, or
shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or another Subsidiary Guarantor.
Section 9.05. Releases.
In the event of (a) the release or discharge of the Guarantee of the Credit Agreement by a
Subsidiary Guarantor, except a discharge or release by or as a result of payment under such
Guarantee or (b) a sale or other disposition by way of such a merger, consolidation or otherwise,
of all of the capital stock of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the
event of a sale or other disposition of all of the capital stock of such Subsidiary Guarantor)
shall be released and relieved of any obligations under its Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of and interest on the Notes and for the other
obligations of any Subsidiary Guarantor under this Indenture as provided in this Article IX.
[Signatures on following page]
32
SIGNATURES
Dated as of August 25, 2010
ISSUER: Peabody Energy Corporation |
||||
By: | /s/ Walter L. Hawkins, Jr. | |||
Name: | Walter L. Hawkins, Jr. | |||
Title: | Senior Vice President Finance and Treasurer | |||
GUARANTORS | ||
AMERICAN LAND DEVELOPMENT, LLC | ||
AMERICAN LAND HOLDINGS OF COLORADO, LLC | ||
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC | ||
AMERICAN LAND HOLDINGS OF INDIANA, LLC | ||
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC | ||
AMERICAN LAND HOLDINGS OF WEST VIRGINIA, LLC | ||
ARID OPERATIONS, INC. | ||
BIG RIDGE, INC. | ||
BIG SKY COAL COMPANY | ||
BLACK HILLS MINING COMPANY, LLC | ||
BTU EMPIRE COMPANY, LLC | ||
BTU WESTERN RESOURCES, INC. | ||
CABALLO COAL, LLC | ||
CABALLO GRANDE, LLC | ||
CASEYVILLE DOCK COMPANY, LLC | ||
CENTRAL STATES COAL RESERVES OF ILLINOIS, LLC | ||
CENTRAL STATES COAL RESERVES OF INDIANA, LLC | ||
CENTURY MINERAL RESOURCES, INC. | ||
COAL RESERVES HOLDING LIMITED LIABILITY COMPANY NO. 1 | ||
COALSALES II, LLC | ||
COLORADO YAMPA COAL COMPANY | ||
CONSERVANCY RESOURCES, LLC | ||
COTTONWOOD LAND COMPANY | ||
CYPRUS CREEK LAND COMPANY | ||
CYPRUS CREEK LAND RESOURCES, LLC | ||
DYSON CREEK COAL COMPANY, LLC | ||
DYSON CREEK MINING COMPANY, LLC | ||
EL SEGUNDO COAL COMPANY, LLC | ||
ELKLAND HOLDINGS, LLC | ||
FALCON COAL COMPANY, LLC | ||
GALLO FINANCE COMPANY | ||
GOLD FIELDS CHILE, LLC | ||
GOLD FIELDS MINING, LLC | ||
GOLD FIELDS ORTIZ, LLC | ||
HAYDEN GULCH TERMINAL, LLC | ||
HIGHWALL MINING SERVICES COMPANY | ||
HILLSIDE RECREATIONAL LANDS, LLC | ||
HMC MINING, LLC | ||
ILLINOIS LAND HOLDINGS, LLC |
33
INDEPENDENCE MATERIAL HANDLING, LLC | ||
JAMES RIVER COAL TERMINAL, LLC | ||
JUNIPER COAL COMPANY | ||
KAYENTA MOBILE HOME PARK, INC. | ||
KENTUCKY SYNGAS, LLC | ||
LIVELY GROVE ENERGY, LLC | ||
LIVELY GROVE ENERGY PARTNERS, LLC | ||
MARIGOLD ELECTRICITY, LLC | ||
MIDCO SUPPLY AND EQUIPMENT COMPANY | ||
MIDWEST COAL ACQUISITION CORP. | ||
MIDWEST COAL RESERVES OF ILLINOIS, LLC | ||
MIDWEST COAL RESERVES OF INDIANA, LLC | ||
MUSTANG ENERGY COMPANY, LLC | ||
NEW MEXICO COAL RESOURCES, LLC | ||
PEABODY AMERICA, INC. | ||
PEABODY ARCHVEYOR, LLC | ||
PEABODY ARCLAR MINING, LLC | ||
PEABODY BEAR RUN MINING, LLC | ||
PEABODY BEAR RUN SERVICES, LLC | ||
PEABODY CARDINAL GASIFICATION, LLC | ||
PEABODY COALSALES, LLC | ||
PEABODY COALTRADE INTERNATIONAL (CTI), LLC | ||
PEABODY COALTRADE, LLC | ||
PEABODY COLORADO OPERATIONS, LLC | ||
PEABODY COLORADO SERVICES, LLC | ||
PEABODY COULTERVILLE MINING, LLC | ||
PEABODY DEVELOPMENT COMPANY, LLC | ||
PEABODY ELECTRICITY, LLC | ||
PEABODY EMPLOYMENT SERVICES, LLC | ||
PEABODY ENERGY GENERATION HOLDING COMPANY | ||
PEABODY ENERGY INVESTMENTS, INC. | ||
PEABODY ENERGY SOLUTIONS, INC. | ||
PEABODY GATEWAY NORTH MINING, LLC | ||
PEABODY GATEWAY SERVICES, LLC | ||
PEABODY HOLDING COMPANY, LLC | ||
PEABODY ILLINOIS SERVICES, LLC | ||
PEABODY INDIANA SERVICES, LLC | ||
PEABODY INTERNATIONAL INVESTMENTS, INC. | ||
PEABODY INTERNATIONAL SERVICES, INC. | ||
PEABODY INVESTMENTS CORP. | ||
PEABODY MIDWEST MANAGEMENT SERVICES, LLC | ||
PEABODY MIDWEST MINING, LLC | ||
PEABODY MIDWEST OPERATIONS, LLC | ||
PEABODY MIDWEST SERVICES, LLC | ||
PEABODY NATURAL GAS, LLC | ||
PEABODY NATURAL RESOURCES COMPANY | ||
PEABODY NEW MEXICO SERVICES, LLC | ||
PEABODY OPERATIONS HOLDING, LLC | ||
PEABODY POWDER RIVER OPERATIONS, LLC | ||
PEABODY POWDER RIVER SERVICES, LLC | ||
PEABODY POWERTREE INVESTMENTS, LLC | ||
PEABODY RECREATIONAL LANDS, LLC | ||
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC | ||
PEABODY ROCKY MOUNTAIN SERVICES, LLC |
34
PEABODY SERVICES HOLDING, LLC | ||
PEABODY SOUTHWEST, LLC | ||
PEABODY SOUTHWESTERN COAL COMPANY | ||
PEABODY TERMINAL HOLDING COMPANY, INC. | ||
PEABODY TERMINALS, LLC | ||
PEABODY TWENTYMILE MINING, LLC | ||
PEABODY VENEZUELA COAL CORP. | ||
PEABODY VENTURE FUND, LLC | ||
PEABODY-WATERSIDE DEVELOPMENT, LLC | ||
PEABODY WESTERN COAL COMPANY | ||
PEABODY WILD BOAR MINING, LLC | ||
PEABODY WILD BOAR SERVICES, LLC | ||
PEABODY WYOMING SERVICES, LLC | ||
PEC EQUIPMENT COMPANY, LLC | ||
POINT PLEASANT DOCK COMPANY, LLC | ||
POND RIVER LAND COMPANY | ||
PORCUPINE PRODUCTION, LLC | ||
PORCUPINE TRANSPORTATION, LLC | ||
POWDER RIVER COAL, LLC | ||
RIVERVIEW TERMINAL COMPANY | ||
SAGE CREEK COAL COMPANY, LLC | ||
SAGE CREEK HOLDINGS, LLC | ||
SCHOOL CREEK COAL COMPANY, LLC | ||
SCHOOL CREEK COAL RESOURCES, LLC | ||
SENECA COAL COMPANY, LLC | ||
SHOSHONE COAL CORPORATION | ||
STAR LAKE ENERGY COMPANY, L.L.C. | ||
SUGAR CAMP PROPERTIES, LLC | ||
THOROUGHBRED GENERATING COMPANY, LLC | ||
THOROUGHBRED MINING COMPANY, LLC | ||
TWENTYMILE COAL, LLC | ||
WEST ROUNDUP RESOURCES, LLC | ||
WILLIAMS FORK COAL COMPANY, LLC | ||
WYOMING NATURAL GAS, LLC |
By: | /s/ Walter L. Hawkins, Jr. | |||
Walter L. Hawkins, Jr. | ||||
Senior Vice President and Treasurer |
35
TRUSTEE U.S. Bank National Association |
||||
By: | /s/ Philip G. Kane, Jr. | |||
Name: | Philip G. Kane, Jr. | |||
Title: | Vice President | |||
EXHIBIT A
(Face of Note)
6.500% Senior Notes due 2020
CUSIP 704549 AH7 | ||||
ISIN US704549AH71 | ||||
No.
|
$ |
PEABODY ENERGY CORPORATION
promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of
Dollars ($ ) on August 25, 2020.
Interest Payment Dates: March 15 and September 15, commencing March 15, 2011.
Record Dates: March 1 and September 1.
Dated: August 25, 2010.
IN WITNESS WHEREOF, Peabody Energy Corporation, has caused this Note to be signed manually or
by facsimile by its duly authorized officer.
PEABODY ENERGY CORPORATION |
||||
By: | ||||
Name: | Walter L. Hawkins, Jr. | |||
Title: | Senior Vice President Finance and Treasurer | |||
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
Notes referred to in the
within-mentioned Indenture:
U.S. Bank National Association
as Trustee
as Trustee
By: | ||||
Authorized Signatory | ||||
Dated August 25, 2010
2
(Back of Note)
6.500% Senior Notes due 2020
[Insert the Global Note Legend, if applicable, pursuant to the terms of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.
1. Interest. Peabody Energy Corporation, a Delaware corporation (the Company), promises to
pay interest on the principal amount of this Note at 6.500% per annum from August 25, 2020 until
maturity. The Company will pay interest semi-annually on March 15 and September 15 of each year,
or if any such day is not a Business Day, on the next succeeding Business Day (each an Interest
Payment Date). Interest on the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from August 25, 2010; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be March 15, 2011. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it
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 periods) from time to time
on demand at the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest)
to the Persons who are registered Holders of Notes at the close of business on the March 1 or
September 1 next preceding the Interest Payment Date (except as provided in Section 3.08 of the
Base Indenture with respect to defaulted interest), even if such Notes are canceled after such
record date and on or before such Interest Payment Date. The Notes shall be payable as to
principal, premium, if any, and interest at the office or agency of the Company maintained for such
purpose within the City and State of New York, unless the Company elects to make payment of
interest by check mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will be required with
respect to principal of, interest and premium on all Global Notes and all other Notes the Holders
of which shall have provided wire transfer instructions to the Company or the Paying Agent at least
15 days prior to the Interest Payment Date. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the Trustee under
the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or
Registrar without prior notice to any Holder. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under the Thirty-Third Supplemental Indenture
dated as of August 25, 2010 among the Company, the Subsidiary Guarantors and the Trustee to a Base
Indenture dated as of March 19, 2004 (collectively, the Indenture) between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company.
5. The principal on the Notes shall be due and payable on August 25, 2020.
3
6. Optional Redemption.
(a) The Notes shall be subject to redemption at any time at the option of the Company, in
whole at any time or in part from time to time, upon not less than 30 nor more than 60 days notice
to Holders in the manner provided in the Indenture.
(b) The Notes will be redeemable at a redemption price equal to the greater of (1) 100% of the
principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining
principal and interest payments on the applicable Notes (exclusive of interest accrued to the date
of redemption) discounted to the redemption date, calculated on a semi-annual basis (assuming a
360-day year comprised of twelve 30-day months), at the Treasury Rate plus 50 basis points,
together with accrued and unpaid interest, if any, to the date of redemption.
(c) Any redemption pursuant to this Paragraph 6 shall be made pursuant to the provisions of
Article III of the Indenture.
7. Repurchase at Option of Holder. Upon the occurrence of a Change of Control Triggering
Event, the Company shall be required to make an offer (a Change of Control Offer) to repurchase
all or any part (equal to $2,000 or an integral multiple of $1,000) of each Holders Notes at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of purchase (the Change of Control Payment). Within 10
days following any Change of Control Triggering Event, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of Control Triggering
Event and offering to repurchase the Notes on the date specified in such notice.
8. Notice of Redemption. Notice of redemption shall be mailed no earlier than 30 days and no
later than 60 days from the date such notice is mailed to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on the Notes or portions
thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are issued in denominations of $2,000 and
integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents in connection with a transfer
of Notes, to pay all taxes and fees required by law or permitted by the Indenture due on transfer.
The Company is not required to exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being redeemed in part.
Also, the Company is not required to exchange or register the transfer of any Notes for a period of
15 days before a selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for
all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture, the
Subsidiary Guarantees or the Notes may be amended or supplemented with the consent of the Holders
of at least a majority in aggregate principal amount of the Notes then Outstanding including
Additional Notes, if any, voting as a single class, and any existing default or compliance with any
provision of the Indenture, the Subsidiary Guarantees or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then Outstanding Notes and Additional
Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the
Indenture, the Subsidiary Guarantees or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place
of certificated Notes, to provide for the assumption of the Companys or Subsidiary Guarantors
obligations to Holders of the Notes in case of a merger or consolidation, 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 under the Indenture of any such Holder, to comply with the
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act, to provide for the Issuance of Additional Notes in accordance with the
limitations set forth
4
in the Indenture, or to allow any Subsidiary Guarantor to execute a supplemental Indenture to
the Indenture and/or a Subsidiary Guarantee with respect to the Notes.
12. | Defaults and Remedies. An Event of Default occurs if: |
(a) | the Company defaults in the payment when due of interest on the Notes and such default continues for a period of 30 days; | ||
(b) | the Company defaults in the payment when due of principal of or premium, if any, on the Notes when the same becomes due and payable at maturity, upon redemption (including in connection with an offer to purchase) or otherwise; | ||
(c) | the Company or any of its Subsidiaries fails to make the offer required or to purchase any of the Notes as required by Section 4.15 of the Indenture; | ||
(d) | the Company or any of its Subsidiaries fails to comply for 60 days after written notice to the Company by the Trustee or a Holder with any covenant, representation, warranty or other agreement in the Indenture or the Notes; | ||
(e) | a default occurs 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 Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of the Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the date hereof, which default results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of such Indebtedness aggregates $75.0 million or more; | ||
(f) | the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law: | ||
(i) commences a voluntary case, | |||
(ii) consents to the entry of an order for relief against it in an involuntary case, | |||
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property, | |||
(iv) makes a general assignment for the benefit of its creditors, or | |||
(v) generally is not paying its debts as they become due; or |
(g) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: | ||
(i) is for relief against the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary in an involuntary case; | |||
(ii) appoints a custodian of the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; |
5
(iii) orders the liquidation of the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; and the order or decree remains unstayed and in effect for 60 consecutive days; or | |||
(iv) except as permitted by the Indenture, any Subsidiary Guarantee is 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 Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, shall deny or disaffirm its obligations under such Subsidiary Guarantors Subsidiary Guarantee. |
If any Event of Default (other than an Event of Default specified in clause (f) or (g) of
Section 6.01 of the Indenture 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.
13. Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee, incorporator or stockholder,
of the Company, or any Person controlling such Person, as such, shall not have any liability for
any obligations of the Company under the Notes , the Subsidiary Guarantees, the Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:
Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Attention: Chief Legal Officer
701 Market Street
St. Louis, Missouri 63101-1826
Attention: Chief Legal Officer
6
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
(Print or type assignees name, address and zip code)
and irrevocably appoint as agent to transfer this Note on the books of
the
Issuer. The agent may substitute another to act for him.
Date:
|
Your Signature: | |
(Sign exactly as your name appears on the face of this Note) | ||
Signature Guarantee: | ||
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended |
7
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to 4.15 of the
Indenture, check the box below:
o Section 4.15
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.15 of the Indenture, state the amount you elect to have purchased: $
Date:
|
Your Signature: | |
(Sign exactly as your name appears on
the face of this Note) |
||
Tax Identification No: | ||
Signature Guarantee: | ||
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended |
8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:
Date of Exchange | Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount of this Global Note following such decrease (or increase) |
Signature of authorized signatory of Trustee or Note Custodian |
||||
9
EXHIBIT B
FORM OF NOTATION OF SUBSIDIARY GUARANTEE
For value received, each Subsidiary Guarantor (which term includes any successor Person under
the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Thirty-Third Supplemental Indenture dated as of
August 25, 2010 to the Indenture dated as of March 19, 2004, (the Base Indenture, and, together
with the Thirty-Third Supplemental Indenture, the Indenture) among Peabody Energy Corporation,
the Subsidiary Guarantors listed on Schedule I thereto and U.S. Bank National Association, as
Trustee (the Trustee), (a) the due and punctual payment of the principal of, premium, if any, and
interest on the Notes (as defined in the Indenture), whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue principal and premium,
and, to the extent permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will 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. The obligations of the Subsidiary Guarantors to the Holders of Notes and to the
Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article
IX of the Indenture and reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall be
bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for such
purpose.
AMERICAN LAND DEVELOPMENT, LLC AMERICAN LAND HOLDINGS OF COLORADO, LLC AMERICAN LAND HOLDINGS OF ILLINOIS, LLC AMERICAN LAND HOLDINGS OF INDIANA, LLC AMERICAN LAND HOLDINGS OF KENTUCKY, LLC AMERICAN LAND HOLDINGS OF WEST VIRGINIA, LLC ARID OPERATIONS, INC. BIG RIDGE, INC. BIG SKY COAL COMPANY BLACK HILLS MINING COMPANY, LLC BTU EMPIRE COMPANY, LLC BTU WESTERN RESOURCES, INC. CABALLO COAL, LLC CABALLO GRANDE, LLC CASEYVILLE DOCK COMPANY, LLC CENTRAL STATES COAL RESERVES OF ILLINOIS, LLC CENTRAL STATES COAL RESERVES OF INDIANA, LLC CENTURY MINERAL RESOURCES, INC. COAL RESERVES HOLDING LIMITED LIABILITY COMPANY NO. 1 COALSALES II, LLC COLORADO YAMPA COAL COMPANY CONSERVANCY RESOURCES, LLC COTTONWOOD LAND COMPANY CYPRUS CREEK LAND COMPANY CYPRUS CREEK LAND RESOURCES, LLC DYSON CREEK COAL COMPANY, LLC DYSON CREEK MINING COMPANY, LLC EL SEGUNDO COAL COMPANY, LLC ELKLAND HOLDINGS, LLC FALCON COAL COMPANY, LLC |
GALLO FINANCE COMPANY GOLD FIELDS CHILE, LLC GOLD FIELDS MINING, LLC GOLD FIELDS ORTIZ, LLC HAYDEN GULCH TERMINAL, LLC HIGHWALL MINING SERVICES COMPANY HILLSIDE RECREATIONAL LANDS, LLC HMC MINING, LLC ILLINOIS LAND HOLDINGS, LLC INDEPENDENCE MATERIAL HANDLING, LLC JAMES RIVER COAL TERMINAL, LLC JUNIPER COAL COMPANY KAYENTA MOBILE HOME PARK, INC. KENTUCKY SYNGAS, LLC LIVELY GROVE ENERGY, LLC LIVELY GROVE ENERGY PARTNERS, LLC MARIGOLD ELECTRICITY, LLC MIDCO SUPPLY AND EQUIPMENT COMPANY MIDWEST COAL ACQUISITION CORP. MIDWEST COAL RESERVES OF ILLINOIS, LLC MIDWEST COAL RESERVES OF INDIANA, LLC MUSTANG ENERGY COMPANY, LLC NEW MEXICO COAL RESOURCES, LLC PEABODY AMERICA, INC. PEABODY ARCHVEYOR, LLC PEABODY ARCLAR MINING, LLC PEABODY BEAR RUN MINING, LLC PEABODY BEAR RUN SERVICES, LLC PEABODY CARDINAL GASIFICATION, LLC PEABODY COALSALES, LLC PEABODY COALTRADE INTERNATIONAL (CTI), LLC PEABODY COALTRADE, LLC PEABODY COLORADO OPERATIONS, LLC PEABODY COLORADO SERVICES, LLC PEABODY COULTERVILLE MINING, LLC PEABODY DEVELOPMENT COMPANY, LLC PEABODY ELECTRICITY, LLC PEABODY EMPLOYMENT SERVICES, LLC PEABODY ENERGY GENERATION HOLDING COMPANY PEABODY ENERGY INVESTMENTS, INC. PEABODY ENERGY SOLUTIONS, INC. PEABODY GATEWAY NORTH MINING, LLC PEABODY GATEWAY SERVICES, LLC PEABODY HOLDING COMPANY, LLC PEABODY ILLINOIS SERVICES, LLC PEABODY INDIANA SERVICES, LLC PEABODY INTERNATIONAL INVESTMENTS, INC. PEABODY INTERNATIONAL SERVICES, INC. PEABODY INVESTMENTS CORP. PEABODY MIDWEST MANAGEMENT SERVICES, LLC PEABODY MIDWEST MINING, LLC PEABODY MIDWEST OPERATIONS, LLC PEABODY MIDWEST SERVICES, LLC PEABODY NATURAL GAS, LLC PEABODY NATURAL RESOURCES COMPANY |
2
PEABODY NEW MEXICO SERVICES, LLC PEABODY OPERATIONS HOLDING, LLC PEABODY POWDER RIVER OPERATIONS, LLC PEABODY POWDER RIVER SERVICES, LLC PEABODY POWERTREE INVESTMENTS, LLC PEABODY RECREATIONAL LANDS, LLC PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC PEABODY ROCKY MOUNTAIN SERVICES, LLC PEABODY SERVICES HOLDING, LLC PEABODY SOUTHWEST, LLC PEABODY SOUTHWESTERN COAL COMPANY PEABODY TERMINAL HOLDING COMPANY, INC. PEABODY TERMINALS, LLC PEABODY TWENTYMILE MINING, LLC PEABODY VENEZUELA COAL CORP. PEABODY VENTURE FUND, LLC PEABODY-WATERSIDE DEVELOPMENT, LLC PEABODY WESTERN COAL COMPANY PEABODY WILD BOAR MINING, LLC PEABODY WILD BOAR SERVICES, LLC PEABODY WYOMING SERVICES, LLC PEC EQUIPMENT COMPANY, LLC POINT PLEASANT DOCK COMPANY, LLC POND RIVER LAND COMPANY PORCUPINE PRODUCTION, LLC PORCUPINE TRANSPORTATION, LLC POWDER RIVER COAL, LLC RIVERVIEW TERMINAL COMPANY SAGE CREEK COAL COMPANY, LLC SAGE CREEK HOLDINGS, LLC SCHOOL CREEK COAL COMPANY, LLC SCHOOL CREEK COAL RESOURCES, LLC SENECA COAL COMPANY, LLC SHOSHONE COAL CORPORATION STAR LAKE ENERGY COMPANY, L.L.C. SUGAR CAMP PROPERTIES, LLC THOROUGHBRED GENERATING COMPANY, LLC THOROUGHBRED MINING COMPANY, LLC TWENTYMILE COAL, LLC WEST ROUNDUP RESOURCES, LLC WILLIAMS FORK COAL COMPANY, LLC WYOMING NATURAL GAS, LLC |
||||
By: | ||||
Name: | ||||
Title: |
3
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS
Supplemental Indenture (this Supplemental Indenture), dated as of [], among (the
Guaranteeing Subsidiary), a subsidiary of Peabody Energy Corporation (or its permitted
successor), a Delaware corporation (the Company), the Company, the other Subsidiary Guarantors
(as defined in the Indenture referred to herein) and U.S. Bank National Association, as Trustee
under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee the Thirty-Third
Supplemental Indenture dated as of August 25, 2010 to the Indenture dated as of March 19, 2004,
(the Base Indenture, and, together with the Thirty-Third Supplemental Indenture, the Indenture)
providing for the issuance of an unlimited amount of 6.500% Senior Notes due 2020 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental Indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the Subsidiary Guarantee);
and
WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
(a) | Along with all Subsidiary Guarantors named in the Indenture, to jointly and severally Guarantee 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 the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: |
(i) | the principal of and interest on the Notes will 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 will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and | ||
(ii) | in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will 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 Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. |
(b) | The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the 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 Subsidiary Guarantor. |
(c) | The following is hereby waived: 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. | ||
(d) | This Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. | ||
(e) | If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors, or any custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. | ||
(f) | The Guaranteeing Subsidiary 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. | ||
(g) | As between the Subsidiary 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 of the Indenture for the purposes of this Subsidiary 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 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. | ||
(h) | The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee. | ||
(i) | Pursuant to Section 9.04 of the Indenture, after giving effect to any maximum amount and any other contingent and fixed liabilities that are relevant under any applicable Bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under Article 9 of the Indenture shall result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance. |
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that the Subsidiary Guarantees
shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) | The Guaranteeing Subsidiary may not consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another corporation, Person or entity whether or not affiliated with such Subsidiary Guarantor unless: |
(i) | subject to Section 9.04 of the Indenture, the Person formed by or surviving any such consolidation or merger (if other than a Subsidiary Guarantor or the Company) unconditionally assumes all the obligations of such Subsidiary Guarantor, pursuant to a supplemental Indenture in form and substance reasonably satisfactory to the Trustee, |
2
under the Notes, the Indenture and the Subsidiary Guarantee on the terms set forth herein or therein; and | |||
(ii) | immediately after giving effect to such transaction, no Default or Event of Default shall have occured and be continuing. |
(b) | In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor corporation, by supplemental Indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Subsidiary Guarantor, such successor corporation shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor corporation thereupon may cause to be signed any or all of the Subsidiary 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 Subsidiary Guarantees so issued shall in all respects have the same legal rank and benefit under the Indenture as the Subsidiary Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Subsidiary Guarantees had been issued at the date of the execution hereof. | ||
(c) | Except as set forth in Articles 4 and 5 of the Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or in any of the Notes shall prevent any consolidation or merger of a Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety to the Company or another Subsidiary Guarantor. |
5. Releases.
(a) | In the event of (i) the release or discharge of the Guarantee of the Credit Agreement by a Subsidiary Guarantor, except a discharge or release by or as a result of payment under such Guarantee or (ii) a sale or other disposition by way of such a merger, consolidation or otherwise, of all of the capital stock of any Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition of all of the capital stock of such Subsidiary Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee. | ||
(b) | Any Subsidiary Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Subsidiary Guarantor under the Indenture as provided in Article 9 of the Indenture. |
6. No Recourse Against Others. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any
liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the 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. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such a waiver is
against public policy.
7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. Counterparts. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.
3
9. Effect of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and
the Company.
4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated:
[Guaranteeing Subsidiary] |
||||
By: | ||||
Name: | ||||
Title: | ||||
Peabody Energy Corporation |
||||
By: | ||||
Name: | ||||
Title: | ||||
[EXISTING SUBSIDIARY NOTE GUARANTORS] |
||||
By: | ||||
Name: | ||||
Title: | ||||
U.S. Bank National Association as Trustee |
||||
By: | ||||
Name: | ||||
Title: |
5
Schedule I
SCHEDULE OF SUBSIDIARY GUARANTORS
The following schedule lists each Subsidiary Guarantor under the Indenture as of the Issue
Date:
AMERICAN LAND DEVELOPMENT, LLC
AMERICAN LAND HOLDINGS OF COLORADO, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC
AMERICAN LAND HOLDINGS OF WEST VIRGINIA, LLC
ARID OPERATIONS, INC.
BIG RIDGE, INC.
BIG SKY COAL COMPANY
BLACK HILLS MINING COMPANY, LLC
BTU EMPIRE COMPANY, LLC
BTU WESTERN RESOURCES, INC.
CABALLO COAL, LLC
CABALLO GRANDE, LLC
CASEYVILLE DOCK COMPANY, LLC
CENTRAL STATES COAL RESERVES OF ILLINOIS, LLC
CENTRAL STATES COAL RESERVES OF INDIANA, LLC
CENTURY MINERAL RESOURCES, INC.
COAL RESERVES HOLDING LIMITED LIABILITY COMPANY NO. 1
COALSALES II, LLC
COLORADO YAMPA COAL COMPANY
CONSERVANCY RESOURCES, LLC
COTTONWOOD LAND COMPANY
CYPRUS CREEK LAND COMPANY
CYPRUS CREEK LAND RESOURCES, LLC
DYSON CREEK COAL COMPANY, LLC
DYSON CREEK MINING COMPANY, LLC
EL SEGUNDO COAL COMPANY, LLC
ELKLAND HOLDINGS, LLC
FALCON COAL COMPANY, LLC
GALLO FINANCE COMPANY
GOLD FIELDS CHILE, LLC
GOLD FIELDS MINING, LLC
GOLD FIELDS ORTIZ, LLC
HAYDEN GULCH TERMINAL, LLC
HIGHWALL MINING SERVICES COMPANY
HILLSIDE RECREATIONAL LANDS, LLC
HMC MINING, LLC
ILLINOIS LAND HOLDINGS, LLC
INDEPENDENCE MATERIAL HANDLING, LLC
JAMES RIVER COAL TERMINAL, LLC
JUNIPER COAL COMPANY
KAYENTA MOBILE HOME PARK, INC.
KENTUCKY SYNGAS, LLC
LIVELY GROVE ENERGY, LLC
LIVELY GROVE ENERGY PARTNERS, LLC
MARIGOLD ELECTRICITY, LLC
MIDCO SUPPLY AND EQUIPMENT COMPANY
MIDWEST COAL ACQUISITION CORP.
MIDWEST COAL RESERVES OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF COLORADO, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC
AMERICAN LAND HOLDINGS OF WEST VIRGINIA, LLC
ARID OPERATIONS, INC.
BIG RIDGE, INC.
BIG SKY COAL COMPANY
BLACK HILLS MINING COMPANY, LLC
BTU EMPIRE COMPANY, LLC
BTU WESTERN RESOURCES, INC.
CABALLO COAL, LLC
CABALLO GRANDE, LLC
CASEYVILLE DOCK COMPANY, LLC
CENTRAL STATES COAL RESERVES OF ILLINOIS, LLC
CENTRAL STATES COAL RESERVES OF INDIANA, LLC
CENTURY MINERAL RESOURCES, INC.
COAL RESERVES HOLDING LIMITED LIABILITY COMPANY NO. 1
COALSALES II, LLC
COLORADO YAMPA COAL COMPANY
CONSERVANCY RESOURCES, LLC
COTTONWOOD LAND COMPANY
CYPRUS CREEK LAND COMPANY
CYPRUS CREEK LAND RESOURCES, LLC
DYSON CREEK COAL COMPANY, LLC
DYSON CREEK MINING COMPANY, LLC
EL SEGUNDO COAL COMPANY, LLC
ELKLAND HOLDINGS, LLC
FALCON COAL COMPANY, LLC
GALLO FINANCE COMPANY
GOLD FIELDS CHILE, LLC
GOLD FIELDS MINING, LLC
GOLD FIELDS ORTIZ, LLC
HAYDEN GULCH TERMINAL, LLC
HIGHWALL MINING SERVICES COMPANY
HILLSIDE RECREATIONAL LANDS, LLC
HMC MINING, LLC
ILLINOIS LAND HOLDINGS, LLC
INDEPENDENCE MATERIAL HANDLING, LLC
JAMES RIVER COAL TERMINAL, LLC
JUNIPER COAL COMPANY
KAYENTA MOBILE HOME PARK, INC.
KENTUCKY SYNGAS, LLC
LIVELY GROVE ENERGY, LLC
LIVELY GROVE ENERGY PARTNERS, LLC
MARIGOLD ELECTRICITY, LLC
MIDCO SUPPLY AND EQUIPMENT COMPANY
MIDWEST COAL ACQUISITION CORP.
MIDWEST COAL RESERVES OF ILLINOIS, LLC
MIDWEST COAL RESERVES OF INDIANA, LLC
MUSTANG ENERGY COMPANY, LLC
NEW MEXICO COAL RESOURCES, LLC
PEABODY AMERICA, INC.
PEABODY ARCHVEYOR, LLC
PEABODY ARCLAR MINING, LLC
PEABODY BEAR RUN MINING, LLC
PEABODY BEAR RUN SERVICES, LLC
PEABODY CARDINAL GASIFICATION, LLC
PEABODY COALSALES, LLC
PEABODY COALTRADE INTERNATIONAL (CTI), LLC
PEABODY COALTRADE, LLC
PEABODY COLORADO OPERATIONS, LLC
PEABODY COLORADO SERVICES, LLC
PEABODY COULTERVILLE MINING, LLC
PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ELECTRICITY, LLC
PEABODY EMPLOYMENT SERVICES, LLC
PEABODY ENERGY GENERATION HOLDING COMPANY
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY GATEWAY NORTH MINING, LLC
PEABODY GATEWAY SERVICES, LLC
PEABODY HOLDING COMPANY, LLC
PEABODY ILLINOIS SERVICES, LLC
PEABODY INDIANA SERVICES, LLC
PEABODY INTERNATIONAL INVESTMENTS, INC.
PEABODY INTERNATIONAL SERVICES, INC.
PEABODY INVESTMENTS CORP.
PEABODY MIDWEST MANAGEMENT SERVICES, LLC
PEABODY MIDWEST MINING, LLC
PEABODY MIDWEST OPERATIONS, LLC
PEABODY MIDWEST SERVICES, LLC
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY NEW MEXICO SERVICES, LLC
PEABODY OPERATIONS HOLDING, LLC
PEABODY POWDER RIVER OPERATIONS, LLC
PEABODY POWDER RIVER SERVICES, LLC
PEABODY POWERTREE INVESTMENTS, LLC
PEABODY RECREATIONAL LANDS, LLC
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC
PEABODY ROCKY MOUNTAIN SERVICES, LLC
PEABODY SERVICES HOLDING, LLC
PEABODY SOUTHWEST, LLC
PEABODY SOUTHWESTERN COAL COMPANY
PEABODY TERMINAL HOLDING COMPANY, INC.
PEABODY TERMINALS, LLC
PEABODY TWENTYMILE MINING, LLC
PEABODY VENEZUELA COAL CORP.
PEABODY VENTURE FUND, LLC
PEABODY-WATERSIDE DEVELOPMENT, LLC
PEABODY WESTERN COAL COMPANY
PEABODY WILD BOAR MINING, LLC
PEABODY WILD BOAR SERVICES, LLC
PEABODY WYOMING SERVICES, LLC
MUSTANG ENERGY COMPANY, LLC
NEW MEXICO COAL RESOURCES, LLC
PEABODY AMERICA, INC.
PEABODY ARCHVEYOR, LLC
PEABODY ARCLAR MINING, LLC
PEABODY BEAR RUN MINING, LLC
PEABODY BEAR RUN SERVICES, LLC
PEABODY CARDINAL GASIFICATION, LLC
PEABODY COALSALES, LLC
PEABODY COALTRADE INTERNATIONAL (CTI), LLC
PEABODY COALTRADE, LLC
PEABODY COLORADO OPERATIONS, LLC
PEABODY COLORADO SERVICES, LLC
PEABODY COULTERVILLE MINING, LLC
PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ELECTRICITY, LLC
PEABODY EMPLOYMENT SERVICES, LLC
PEABODY ENERGY GENERATION HOLDING COMPANY
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY GATEWAY NORTH MINING, LLC
PEABODY GATEWAY SERVICES, LLC
PEABODY HOLDING COMPANY, LLC
PEABODY ILLINOIS SERVICES, LLC
PEABODY INDIANA SERVICES, LLC
PEABODY INTERNATIONAL INVESTMENTS, INC.
PEABODY INTERNATIONAL SERVICES, INC.
PEABODY INVESTMENTS CORP.
PEABODY MIDWEST MANAGEMENT SERVICES, LLC
PEABODY MIDWEST MINING, LLC
PEABODY MIDWEST OPERATIONS, LLC
PEABODY MIDWEST SERVICES, LLC
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY NEW MEXICO SERVICES, LLC
PEABODY OPERATIONS HOLDING, LLC
PEABODY POWDER RIVER OPERATIONS, LLC
PEABODY POWDER RIVER SERVICES, LLC
PEABODY POWERTREE INVESTMENTS, LLC
PEABODY RECREATIONAL LANDS, LLC
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC
PEABODY ROCKY MOUNTAIN SERVICES, LLC
PEABODY SERVICES HOLDING, LLC
PEABODY SOUTHWEST, LLC
PEABODY SOUTHWESTERN COAL COMPANY
PEABODY TERMINAL HOLDING COMPANY, INC.
PEABODY TERMINALS, LLC
PEABODY TWENTYMILE MINING, LLC
PEABODY VENEZUELA COAL CORP.
PEABODY VENTURE FUND, LLC
PEABODY-WATERSIDE DEVELOPMENT, LLC
PEABODY WESTERN COAL COMPANY
PEABODY WILD BOAR MINING, LLC
PEABODY WILD BOAR SERVICES, LLC
PEABODY WYOMING SERVICES, LLC
2
PEC EQUIPMENT COMPANY, LLC
POINT PLEASANT DOCK COMPANY, LLC
POND RIVER LAND COMPANY
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL, LLC
RIVERVIEW TERMINAL COMPANY
SAGE CREEK COAL COMPANY, LLC
SAGE CREEK HOLDINGS, LLC
SCHOOL CREEK COAL COMPANY, LLC
SCHOOL CREEK COAL RESOURCES, LLC
SENECA COAL COMPANY, LLC
SHOSHONE COAL CORPORATION
STAR LAKE ENERGY COMPANY, L.L.C.
SUGAR CAMP PROPERTIES, LLC
THOROUGHBRED GENERATING COMPANY, LLC
THOROUGHBRED MINING COMPANY, LLC
TWENTYMILE COAL, LLC
WEST ROUNDUP RESOURCES, LLC
WILLIAMS FORK COAL COMPANY, LLC
WYOMING NATURAL GAS, LLC
POINT PLEASANT DOCK COMPANY, LLC
POND RIVER LAND COMPANY
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL, LLC
RIVERVIEW TERMINAL COMPANY
SAGE CREEK COAL COMPANY, LLC
SAGE CREEK HOLDINGS, LLC
SCHOOL CREEK COAL COMPANY, LLC
SCHOOL CREEK COAL RESOURCES, LLC
SENECA COAL COMPANY, LLC
SHOSHONE COAL CORPORATION
STAR LAKE ENERGY COMPANY, L.L.C.
SUGAR CAMP PROPERTIES, LLC
THOROUGHBRED GENERATING COMPANY, LLC
THOROUGHBRED MINING COMPANY, LLC
TWENTYMILE COAL, LLC
WEST ROUNDUP RESOURCES, LLC
WILLIAMS FORK COAL COMPANY, LLC
WYOMING NATURAL GAS, LLC
3
CROSS-REFERENCE TABLE*
Note | ||
Trust Indenture Act Section | Indenture Section | |
310 (a) (1)
|
6.09 (Base Indenture) | |
(a) (2)
|
6.09 (Base Indenture) | |
(a) (3)
|
N.A. | |
(a) (4)
|
N.A. | |
(b)
|
6.08 (Base Indenture) | |
6.10 (Base Indenture) | ||
311 (a)
|
6.13(a) (Base Indenture) | |
(b)
|
6.13(b) (Base Indenture) | |
(c)
|
N.A. | |
312 (a)
|
2.05; 7.01 (Base Indenture) | |
(b)
|
7.02(b) (Base Indenture) | |
(c)
|
7.02(c) (Base Indenture) | |
313 (a)
|
7.03(a) (Base Indenture) | |
(b)
|
7.03(b) (Base Indenture) | |
(c)
|
7.03(b) and (c) (Base Indenture) | |
(d)
|
7.03 (c) (Base Indenture). | |
314(c) (1)
|
1.02 (Base Indenture) | |
(c) (2)
|
1.02 (Base Indenture) | |
(c) (3)
|
N.A. | |
(e)
|
1.02 (Base Indenture) | |
(f)
|
N.A. | |
315 (a)
|
6.01(a) (Base Indenture) | |
(b)
|
6.02 (Base Indenture) | |
(c)
|
6.01(b) (Base Indenture) | |
(d)
|
6.01(c) (Base Indenture) | |
(d)(1)
|
6.01(c) (Base Indenture) | |
(d)(2)
|
6.01(c)(2) (Base Indenture) | |
(d)(3)
|
6.01(c)(3) (Base Indenture) | |
(e)
|
6.11 | |
316 (a)
|
5.08 (Base Indenture) | |
(a) (1) (A)
|
6.05 | |
(a) (1) (B)
|
6.04 | |
(a) (2)
|
N.A. | |
(b)
|
6.07 | |
317 (a) (1)
|
6.08 | |
(a) (2)
|
6.09 | |
(b)
|
2.04 | |
318 (a)
|
1.07 (Base Indenture) | |
(b)
|
N.A. |
N.A. means not applicable.
* | This Cross-Reference Table is not part of the Indenture. |
4
TABLE OF CONTENTS
Page | ||||
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 | |||
Section 1.01. Definitions |
1 | |||
Section 1.02. Other Definitions |
7 | |||
Section 1.03. Incorporation by Reference of Trust Indenture Act |
8 | |||
Section 1.04. Rules of Construction |
8 | |||
Section 1.05. Miscellaneous |
8 | |||
ARTICLE II THE NOTES |
8 | |||
Section 2.01. Form and Dating |
8 | |||
Section 2.02. Execution and Authentication |
9 | |||
Section 2.03. Registrar and Paying Agent |
9 | |||
Section 2.04. Paying Agent to Hold Money in Trust |
10 | |||
Section 2.05. Holder Lists |
10 | |||
Section 2.06. Transfer and Exchange |
10 | |||
Section 2.07. Outstanding Notes |
13 | |||
Section 2.08. Treasury Notes |
13 | |||
ARTICLE III REDEMPTION AND PREPAYMENT |
13 | |||
Section 3.01. Notices to Trustee |
13 | |||
Section 3.02. Selection of Notes to be Redeemed |
14 | |||
Section 3.03. Notice of Redemption |
14 | |||
Section 3.04. Effect of Notice of Redemption |
15 | |||
Section 3.05. Deposit of Redemption Price |
15 | |||
Section 3.06. Notes Redeemed in Part |
15 | |||
Section 3.07. Optional Redemption |
15 | |||
ARTICLE IV COVENANTS |
15 | |||
Section 4.01. Payment of Notes |
15 | |||
Section 4.02. Maintenance of Office or Agency |
16 | |||
Section 4.03. [Intentionally Omitted.] |
16 | |||
Section 4.04. Compliance Certificate |
16 | |||
Section 4.05. Taxes |
17 | |||
Section 4.06. Stay, Extension and Usury Laws |
17 | |||
Section 4.07. [Intentionally Omitted] |
17 | |||
Section 4.08. [Intentionally Omitted |
17 | |||
Section 4.09. [Intentionally Omitted] |
17 | |||
Section 4.10. [Intentionally Omitted] |
17 | |||
Section 4.11. [Intentionally Omitted] |
17 | |||
Section 4.12. Liens |
17 | |||
Section 4.13. [Intentionally Omitted] |
18 | |||
Section 4.14. Corporate Existence |
18 | |||
Section 4.15. Offer To Repurchase Upon Change of Control Triggering Event |
19 | |||
Section 4.16. Additional Subsidiary Guarantees |
19 | |||
Section 4.17. [Intentionally Omitted] |
20 | |||
Section 4.18. [Intentionally Omitted] |
20 | |||
Section 4.19. Limitation on Sale and Lease-Back Transactions. |
20 | |||
ARTICLE V SUCCESSORS |
20 | |||
Section 5.01. [Intentionally Omitted] |
20 | |||
Section 5.02. [Intentionally Omitted] |
20 | |||
ARTICLE VI DEFAULTS AND REMEDIES |
20 | |||
Section 6.01. Events of Default |
20 | |||
Section 6.02. Acceleration |
22 | |||
Section 6.03. Other Remedies |
22 | |||
Section 6.04. Waiver of Past Defaults |
22 | |||
Section 6.05. Control by Majority |
22 |
i
Page | ||||
Section 6.06. Limitation on Suits |
22 | |||
Section 6.07. Rights of Holders of Notes to Receive Payment |
23 | |||
Section 6.08. Collection Suit by Trustee |
23 | |||
Section 6.09. Trustee May File Proofs of Claim |
23 | |||
Section 6.10. Priorities |
24 | |||
Section 6.11. Undertaking for Costs |
24 | |||
ARTICLE VII LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
24 | |||
Section 7.01. Option to Effect Legal Defeasance or Covenant Defeasance |
24 | |||
Section 7.02. Legal Defeasance and Discharge |
24 | |||
Section 7.03. Covenant Defeasance |
25 | |||
Section 7.04. Conditions to Legal or Covenant Defeasance |
25 | |||
Section 7.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions |
26 | |||
Section 7.06. Repayment to Company |
26 | |||
Section 7.07. Reinstatement |
27 | |||
ARTICLE VIII AMENDMENT, SUPPLEMENT AND WAIVER |
27 | |||
Section 8.01. Without Consent of Holders of Notes |
27 | |||
Section 8.02. With Consent of Holders of Notes |
28 | |||
Section 8.03. Compliance with Trust Indenture Act |
29 | |||
Section 8.04. Revocation and Effect of Consents |
29 | |||
Section 8.05. Notation on or Exchange of Notes |
29 | |||
Section 8.06. Trustee to Sign Amendments, etc. |
29 | |||
ARTICLE IX SUBSIDIARY GUARANTEES |
30 | |||
Section 9.01. Guarantee |
30 | |||
Section 9.02. Limitation on Subsidiary Guarantor Liability |
31 | |||
Section 9.03. Execution and Delivery of Subsidiary Guarantee |
31 | |||
Section 9.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms |
32 | |||
Section 9.05. Releases |
32 | |||
EXHIBITS |
Exhibit A
|
FORM OF NOTE | |
Exhibit B
|
FORM OF NOTATION OF SUBSIDIARY GUARANTEE | |
Exhibit C
|
FORM OF SUPPLEMENTAL INDENTURE | |
SCHEDULES |
||
Schedule I
|
Schedule of Subsidiary Guarantors |
ii